Center for Medical Progress May Win Abortion-Related Prior Restraint Fight In Los Angeles

A couple of weeks ago I discussed a lawsuit filed by StemExpress — a broker of fetal tissue — against the Center for Medical Progress, the group at the heart of the ongoing video-based criticism of Planned Parenthood. I noted that a judge of the L.A. County Superior Court had issues a temporary restraining order preventing CMP from releasing a video of a meeting it had with StemExpress executives, and expressed some concern about the reasoning and how the ruling was constitutional under the prior restraint doctrine. Eugene Volokh's take was clearer and less prone to outbursts of profanity.

StemExpress' initial success now appears unlikely to continue. CMP has filed a well-drafted anti-SLAPP motion attacking the StemExpress complaint. I've explained how anti-SLAPP motions work before. If you're being sued for speech, and you believe the speech is protected, you can file the motion, lay the factual framework for the speech being protected, and force the plaintiff to come forward with admissible evidence showing it could plausibly succeed on its claims. Moreover, an anti-SLAPP motion halts discovery absent a special order of the court.

StemExpress had demanded early expedited discovery into the case; that request was thwarted by CMP's anti-SLAPP motion. So they appealed to the court under part of the anti-SLAPP statute for special discovery — an exception to the general rule that discovery is stayed when the motion is filed. They wanted, for instance, to gather evidence that would help them transform their brief temporary restraining order into a longer-lived preliminary injunction, which requires more proof.

The L.A. County Superior Court's decision does not bode well for their project. In what appears to be a tentative ruling, the court refuses their special discovery request, saying they have not shown adequate cause. More specifically, the court suggests there's no need for discovery in support of a preliminary injunction the court is not inclined to award:

Plaintiff does not persuade the Court that the discovery it seeks is necessary to obtain the preliminary injunction. That is because it appears unlikely that the Court is going to grant the preliminary injunction. The injunction Plaintiff seeks would prevent Defendants from disseminating the videotapes. First, this proposed injunction would constitute a prior restraint on the Defendants' rights under the First Amendment and the parallel protections under the California Constitution. US Const. Amend. I; Cal. Const. Art. 1, § 2. Therefore, it is unlikely that the preliminary injunction will ultimately be granted.

Yes, it appears that the court has been awakened to the prior restraint implications of prohibiting distribution of a video.

The Court also rejects StemExpress' argument that they are entitled to injunctive relief because CMP violated California criminal and civil law against taping a conversation without consent. That law, the court points out, allows a victim to get damages and to prevent further illicit recording, but not to prevent distribution of the recording.

The court's comments suggest that StemExpress will have an uphill battle convincing the court to turn the temporary restraining order into a preliminary injunction, and will probably dissolve the TRO and let CMP distribute its recording of a meeting with StemExpress executives. One wild card remains — in this order, the court didn't address the argument that prior restraint was acceptable because the recording was in violation of a confidentiality agreement that CMP voluntarily signed — in other words, that CMP contracted away any First Amendment Argument. I agree with Eugene Volokh that this is the best of StemExpress's arguments for prior restraint. It may be the only argument they have left.

More developments as they occur.

Last 5 posts by Ken White


  1. 3 says

    I'm sympathetic to cmp, but they did sign a contract not to disclose any information they gained. If the court does not enforce this contract what value does any confidentiality agreement have?

  2. ysth says

    @3, damages. Though I'm seeing things on google (FWIW) that suggest you are more likely to get an injunction/specific performance if you mention that in the agreement itself.

    By the way, is your avatar supposed to look like a male genital organ?

  3. Scott Jacobs says

    I guess I don't understand why CMP wouldn't want Discovery…

    I mean, you'd think getting all the communications between PP and StemExpress would be useful for CMP's argument…

  4. Trent says

    CMP better be a bit afraid about the consequences of that lawsuit for damages. It could do serious damage to their business and CMP would be liable for every dollar of damage for breaking the law in the recording. My bet is they could also go after the individuals personally that broke the law, not just the company that sponsored it.

    Given that two party consent basically makes it wiretapping they would appear to be in danger of criminal prosecution, which given the state would appear to be likely.

  5. says

    Isn't CMP's argument that their contract to injunctive relief was with NAF, and not with StemExpress? That StemExpress can't use a contract they aren't party to?

  6. Paradigm Spider says

    Isn't CMP's argument that their contract to injunctive relief was with NAF, and not with StemExpress? That StemExpress can't use a contract they aren't party to?

    As I understand it, StemExpress is a different party in a different lawsuit that was also defrauded by the CMP.

  7. John Thacker says

    If StemExpress actually wins on the based of confidentiality agreements, you had better believe that every single big farm in the country will start requiring confidentiality agreements before allowing anyone near them. (Just as the clinic attacks of the 1990s are used by StemExpress here, the farmers will use the similar 90s threat of eco-terrorism as their justification, even though both types of attacks have been much rarer for the last 15 years than in the 1990s.) The people behind "ag-gag" laws would definitely like to find a way to prevent filming.

  8. says

    While I find ag-gag laws contemptible, and I have significant misgivings about the lack of transparency among factory farms, it seems to me that preventing any actionable confidentiality agreement is a big pill to swallow.

    After all, such agreements are not limited to people we dont like. What about companies that break their customer confidentiality agreements by selling personal information to spammers? Im not a lawyer so my ignorance of caselaw abounds, but it seems that there are many circumstances in which collecting damages for videotaping others without their consent is a good thing – particularly in todays America, where individuals are far more likely to be monitored by evil corporations than vise versa.

  9. Dan says

    The issues with NDAs are complex, and I'm far from an expert on the subject, but here are a few questions that need to be considered.

    1. Are NDAs enforceable at all? Some types of contracts (e.g., a contract to do something illegal) are automatically considered void as contrary to public policy. Though there's an argument to be made that all NDAs should be considered contrary to public policy, I don't think we're going to see that broad of a ruling any time in the near future, if ever.

    2. Is this NDA enforceable? The terms of StemExpress's NDA may be so broad that it would violate public policy or otherwise be unenforceable. I'd guess that this is not the case, but it's certainly possible.

    3. Is this NDA enforceable in this case? The agreement may be enforceable on its face, but not as applied to this defendant under these circumstances.

    4. Finally, is injunctive relief appropriate? Even if the NDA is enforceable in this case, the court may not grant an injunction. Injunctive relief is an extraordinary remedy, and is only available when a number of criteria are met, one of which is that the injunction would serve the public interest. The court could very well rule that, even with a binding, enforceable NDA, StemExpress's only remedy will be money damages.

    CMP only has to win on one of these issues to avoid the injunction StemExpress is seeking, and given the very strong presumption against prior restraint, winning on point 4 (at least) is pretty likely.

  10. says


    In general, NDAs are quite enforceable and I would quite argue that public policy supports their enforcement under normal circumstances. They often arrive in the context of trade secrets, and they help facilitate business in that manner. They also arise when dealing with sensitive data, such as customer's personal information, that we want employees and partnering business to refuse to disclose under most circumstances.

  11. FlameCCT says

    IIRC the NDA was signed after the video recorded meeting. It also contains a clause that prohibits the release of information gained after the signing of the NDA. IOW CMP cannot use the documents and information received from StemExpress however any information gained prior to the NDA taking affect can be used.

  12. Peter B says

    Assume for the moment that PP's conduct was in some way unlawful.

    If Stem Express knowingly procured material that was unlawfully obtained – and it sounds as though CMP had some reason to believe that this might be so from the statements of a former Stem Express employee – would an NDA then protect Stem Express?

    Or, if SE had demanded documentation of PP's compliance with all laws regarding consent, etc. and PP violated those laws while providing false documentation to SE, what would be the status of an NDA under these circumstances?

  13. Larry says

    The NDA is bogus. It was entered into more than a month after the videotaped conversation took place, and was drafted by Stem Express with a merger clause that supersedes all prior oral agreements and does not list the conversation a month prior as covered by the NDA.

    On top of all that, Stem Express lied to the court to obtain the original TRO by claiming Cate Dyer had asked during the lunch conversation and gotten agreement the conversation would be confidential. There's a videotape. She lied.

    On TOP of all that – who is covered by this NDA? How did CMP get enjoined? Troy Newman – a board member of CMP got enjoined, despite Stem Express failing to even allege that Newman 1) participated in the sting operations; 2) was in any way associated with the corporation, BioMax; 3) was a party to the NDA.

    The ruling dissolving the order was correct. There was no statutory basis for enjoining publication and there was no contractual basis for enjoining publication.

    Furthermore, the recording statute doesn't apply because the tape was made in public under circumstances making it unreasonable to believe it could not or would not be recorded AND the statute contains an exception for recordings showing violence against persons. C.f. Born Alive Infant Protection Act and the strong evidence that Planned Parenthood was performing partial birth abortions in California in order to obtain more useable tissue which is illegal and greatly endangers the life of the woman.