National Partnership for Women & Families

In the News

9th Circuit hears appeal over blocked CMP videos

A three-judge panel of the 9th Circuit Court of Appeals on Tuesday heard an appeal challenging a preliminary injunction that bars an antiabortion-rights group from releasing secretly recorded videos targeting the National Abortion Federation (NAF), Courthouse News Service reports (Iovino, Courthouse News Service, 10/18).

Background

Last year, Judge William Orrick of the Northern District of California issued a temporary restraining order against the Center for Medical Progress (CMP) after NAF filed a lawsuit against the organization. The order blocks CMP from releasing any of its secretly recorded video footage of NAF's annual meetings in 2014 and 2015, as well as from releasing dates of NAF's future meetings and the names and addresses of NAF members (Women's Health Policy Report, 2/8).

Later that year, CMP asked Orrick to clarify whether his order bars the organization from responding to subpoenas seeking access to the blocked footage. According to CMP, the U.S. Senate Judiciary Committee requested access to the footage on July 31, 2015, and the Arizona Attorney General issued a subpoena for the materials on Aug. 11, 2015 (Iovino, Courthouse News Service, 9/1/15).

In February, Orrick issued a preliminary injunction barring CMP from releasing the recordings until litigation is complete. In his ruling, Orrick raised concerns that the videos' release would violate NAF members' right to privacy and potentially endanger them. Further, Orrick noted that he had examined several hundred hours of footage and did not find any evidence that individuals at NAF meetings had engaged in illegal activity, as antiabortion-rights activists have claimed. In addition, Orrick questioned CMP's argument that its actions are protected under the First Amendment, noting that CMP's projects "thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions" (Women's Health Policy Report, 2/8).

Plaintiffs' arguments

During arguments on Tuesday, Catherine Short, an attorney representing CMP founder David Daleiden, claimed Orrick erred in his decision by curbing free speech rights and barring the release of information "of significant public concern."

Short's arguments drew questions from Judge Andrew Hurwitz, who asked at what point public interest supersedes the contractual obligations of a confidentiality agreement. According to CNS, Short said other than the protection of classified and trade secret information, no court has ruled that a confidently agreement could block the release of information regarding matters of public interest.

Separately, Brunn Roysden, an attorney representing the Arizona Attorney General's Office, also disputed Orrick's ruling. According to Roysden, Orrick's decision requires CMP to tell NAF about subpoenas aimed at accessing the blocked materials so that NAF can challenge the orders in court. Roysden cited Supreme Court precedent holding that the Securities and Exchange Commission is not required to inform the targets of investigations when it is issuing subpoenas aimed at third parties.

According to CNS, Hurwitz questioned Roysden's arguments. Hurwitz said the Arizona Attorney General's refusal to promise to keep the disputed materials confidential created "a giant loophole" that would allow people to evade court orders by finding "a few friendly state attorneys general."

NAF's arguments

Marc Hearron, an attorney representing NAF, countered Short's claims. He said Daleiden and other CMP members waived their rights under the First Amendment when they signed confidentiality forms ensuring they would keep all NAF meeting information private.

Hearron also argued that NAF had a right under the First Amendment to bar the public from private meetings so that medical professionals who provide abortion care have a confidential, safe space to further their education and frankly discuss issues facing abortion providers. "Our right to privacy, security and safety of our members would be threatened," Hearron added, noting, "Three people in Colorado were murdered, and partially as [a] result of the videos released last year."

Hearron also countered hypothetical questions put forth by the judges regarding when a confidentiality agreement is superseded by the need to report a crime or inform the public. Hearron said a confidentiality agreement does not prevent someone from reporting a crime to law enforcement, but he explained that Orrick reviewed the video footage and found no evidence of criminal activity. Moreover, Hearron said the preliminary injunction does not bar CMP from submitting pertinent information issued in response to a court-ordered subpoena (Courthouse News Service, 10/18).