The following comes from an October 18 Courthouse News Service article by Nicholas Iovino:
SAN FRANCISCO (CN) – Hearing a challenge to an injunction that blocks anti-abortion activists from publishing secretly taped videos, three Ninth Circuit judges sought to discern when the right to report on matters of public interest trumps the need to enforce confidentiality agreements.
In February, U.S. District Judge William Orrick III issued a preliminary injunction barring David Daleiden and his group, the Center for Medical Progress, from disclosing secretly recorded audio and video files from the National Abortion Federation’s annual meeting.
The federation, an abortion providers’ trade group, sued Daleiden and the center in July 2015 for posing as a fake biomedical firm to infiltrate and record its meetings in violation of signed secrecy agreements.
After reviewing hundreds of hours of recordings, Orrick said he found no evidence that abortion providers made illegal agreements to sell fetal tissue for profit, despite a targeted effort to elicit such responses.
The judge also found disclosing the identities of abortion providers could put those doctors at risk, especially after a gunman calling himself a “warrior for the babies” killed three people at a Planned Parenthood clinic in Colorado Springs this past November.
During a Ninth Circuit hearing on Tuesday, Daleiden’s attorney Catherine Short argued that Orrick improperly placed a prior restraint on free speech and prevented the disclosure of information “of significant public concern.”
The federation’s attorney, Marc Hearron, countered that Daleiden and his associates waived their First Amendment rights when they signed contracts vowing to keep all information from the meeting confidential.
Circuit Judges Andrew Hurwitz and Consuelo Callahan posed a series of hypotheticals to determine at what point a confidentiality agreement is superseded by the need to inform the public or report possible crimes to law enforcement.
“What if they said at their meetings, ‘We kill all women,'” Hurwitz asked. “What are the limits of your ability to restrict someone from reporting something that might be a crime?”
Hearron said the confidentiality agreement does not prohibit anyone from reporting crimes to the police, adding that Orrick reviewed the recordings and found no evidence that a crime was committed.
Representing the Arizona Attorney General’s Office, Brunn Roysden also argued against Orrick’s ruling, which requires the center to inform the federation of subpoenas seeking the enjoined materials so it can challenge those subpoenas in state court.
Given the last word, Short argued the public’s right to know supersedes the need to enforce confidentiality contracts with injunctions that restrict free speech.
Hurwitz sought to understand at what point an issue becomes so important that it overrides a party’s duty to fulfill one’s obligations under a signed agreement.
“What’s our measuring stick,” Hurwitz asked. “How much public interest gets you out of your contractual obligations? Is it a little public interest, a lot of public interest?”
Short replied that aside from two exceptions for protecting classified and trade secret information, no court has enforced a confidentiality agreement to prevent the disclosure of information on matters of public interest.
Visiting U.S. District Judge Donald Molloy of Montana, who also sat on the panel, maintained a Clarence Thomas-like posture and remained silent throughout the hearing.
After about 30 minutes of debate, the panel excluded the public from the courtroom to discuss court-sealed materials before ending the hearing.
In July, Daleiden told Courthouse News he was ready to go on the “offensive” against Planned Parenthood after a district attorney in Texas dismissed felony charges against him for tampering with governmental
Last month, Orrick denied the Center for Medical Progress’ motion to dismiss a separate lawsuit brought by Planned Parenthood in San Francisco.