If you can’t refute them, shut them up.
That seems to be the approach of Planned Parenthood and its allies in the abortion industry. Reeling from the widespread horror that has followed the release of undercover recordings made by the Center for Medical Progress (CMP) – recordings that expose both Planned Parenthood’s shocking amorality as well as its possible violation of federal law – the abortion industry has turned to the courts in their efforts to gag CMP and silence other criticism. Amazingly, the pro-abortion camp has been successful so far, securing the censorship of two undercover videos.
Before turning to the legal issues surrounding this judicial censorship, simply consider what is at stake. The release of undercover videos is accepted practice in American politics and journalism – think only of the “47%” clip featuring Mitt Romney. Already the five videos released by CMP have stirred up a vigorous national debate over Planned Parenthood’s ethics and practices. Millions have watched one or more of CMP’s videos. Presidential candidates in both major parties – including Hilary Clinton, Rand Paul, Ted Cruz, Ben Carson and Carly Fiorina – have weighed in. Editorialists, commentators and columnists in the New York Times, the Wall Street Journal, the Washington Post, MSNBC, Fox News and other major media outlets have been debating the issues raised by the videos. Congress is considering new legislation that would halt the trafficking of fetal body parts and cut Planned Parenthood’s federal funding, and legislators on the powerful House Energy and Commerce Committee are also mounting an investigation.
In other words, the public interest in open and unfettered debate – and hence, in the full and immediate disclosure of all the CMP videos – is overwhelming. Information is the very lifeblood of democracy, and revealing CMP’s information is crucial to the working of our democratic process.
Generally, the American legal system aids the free-flow of information by avoiding court orders meant to prevent the publication of materials with such compelling public importance. This is true when the information could threaten national security and even in time of war, as the Supreme Court affirmed in the famous 1971 Pentagon Papers Case. Five years later, when the Supreme Court struck down a lower court order that barred the media from making disclosures that might jeopardize a criminal defendant’s right to a fair trial, the Court emphasized that such a judicial “prior restraint” on publication was “one of the most extraordinary remedies known to our jurisprudence.” Echoing an earlier decision, the Court affirmed that the “main purpose” of the First Amendment was to prevent exactly such prior restraints on speech and publication.
We thus face two big questions. First, how then can the current acts of judicial censorship be justified? And second, assuming that the orders don’t violate the First Amendment, what can be done, lawfully, to uphold the public’s right to know what is in the suppressed videos?
Understanding The Two Court Orders
Last week, a California state court judge issued an ex-parte temporary restraining order (“TRO”) at the behest of StemExpress, a fetal organ broker, enjoining (restricting) CMP from releasing any undercover videos featuring StemExpress executives. A few days later, a federal judge followed suit for the National Abortion Federation (“NAF”), issuing an ex-parte TRO enjoining CMP from releasing any undercover videos obtained at the NAF’s national conference. A TRO has a limited life span. It freeze-frames an existing situation for a short period, and is usually the prelude to the issuance (or not) of a Preliminary Injunction that would have a more lasting effect, maintaining the status quo until a trial is completed.
Are the TROs constitutional?
At issue in both the state and federal court case is whether the judge-issued TROs, or injunctions, are unconstitutional prior restraints on First Amendment guaranteed freedom of speech. Generally, even if prospective speech will harm another party, a court may not enjoin (restrict) the speech before a trial. If the speech is harmful, the usual remedy is to sue for damages after the harmful speech has occurred.
a) Did CMP obtain the videos illegally?
The first question is whether CMP violated the law in obtaining its recordings. StemExpress’s complaint against CMP in state court broadly asserts that two wrongs occurred. First, StemExpress alleges that CMP violated California Penal Code § 632, which bars one party from secretly recording another party, as long as the unknowing party had a reasonable expectation that the conversation was not being overheard or recorded. According to StemExpress, great care was taken to ensure others in the restaurant were unable to overhear the meeting between StemExpress execs and CMP actors. For instance, StemExpress execs spoke in hushed tones and ceased discussions whenever a server approached. Second, StemExpress also claims CMP violated the terms of a non-disclosure agreement (“NDA”), signed by StemExpress after the meeting occurred, so CMP could access confidential StemExpress documents that were later listed on CMP’s website.
In this state court case, it seems that CMP has clearly violated § 632. However, there is a question as to whether the NDA applies to the video, and Ken White at Popehat has pointed out that the documents covered by the NDA were excluded from the state court judge’s TRO, meaning that those materials are still available on the CMP website. In the NAF case in a federal court, NAF also alleges that CMP violated § 632 along with the terms of an NDA, which was signed by CMP before entering a National Abortion Federation Conference. (Here is the NAF complaint and here is the order granting NAF a TRO).
According to Eugene Volokh, one of the nation’s finest First Amendment scholars, while NAF’s § 632 claim is shaky – socializing at a large conference doesn’t provide the non-recording party an expectation of privacy – the NAF does have a valid contention as to CMP’s signing of the NDA. In other words, parties can waive their First Amendment rights through a contract, as evidenced by the 1980 Supreme Court case, Snepp v. US, 444 U.S. 507.
b) Can a prior restraint be applied to CMP’s speech?
So in both contexts, CMP probably obtained the videos wrongfully. But the second, much more important question is whether a judge-made prior restraint on speech is allowable in either case—regardless of the videos’ legality.
Volokh writes that because both the California statute and contract law are considered “content neutral” restraints on speech, a lower standard of First Amendment scrutiny would be applied to post-trial permanent injunctions (Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994)). Volokh opines that a pre-trial injunction on speech (a prior restraint) may then be allowable in cases of breach of contract, based on a California Supreme Court case, DVD Copy Control Association, Inc. v. Bunner (Cal. 2003). There, a pre-trial injunction was upheld to limit commercial speech involving trade secrets. To further the possibility of a legitimate pre-trial injunction on speech, Volokh also points to a case deciding that the First Amendment does not prohibit a plaintiff from recovering damages post-trial when the press broke a promise of confidentiality, even if the public interest is concerned (Cohen v. Cowles Media Co., 501 U.S. 663 (1991)). Cohen was later used by the Connecticut Supreme Court to allow a pre-trial injunction on speech during a dispute between divorcees on the basis that the plaintiff had contracted out of her First Amendment rights by signing a NDA (Perricone v. Perricone, (Conn. 2009)).
We are not persuaded by this reasoning. Madsen, the main case Volokh relies on for applying a lower standard of scrutiny in the current situation, states that when an injunction is at play, even the lower standard of scrutiny still compels courts to decide “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest” (Madsen at 765). In Madsen, the Court upheld an injunction that set a mere 36 foot buffer zone at the entrance of an abortion clinic to keep it free from protestors – hardly the far-reaching injunctions put in place by our two California judges. For example, in the federal court case involving NAF, that organization frequently cited unsubstantiated threats against abortion providers as a reason to enjoin the release of footage obtained at the conference.
Even if NAF’s unproven and self-serving claims are accepted, the solution is very simple: redact names and blur faces, but allow the content to be released. But NAF’s factual claims shouldn’t be accepted at face value, as the Supreme Court has flatly declined to justify prior restraints using “factors unknown and unknowable” (Nebraska Press Association v. Stuart, 427 U.S. 539, 540 (1976)). Finally, keep in mind Madsen is only dealing with post-trial injunctions, not a pre-trial prior restraint on speech. Cohen also does not involve a prior restraint on speech.
Weighing the Public Interest
When a prior restraint is in question a balancing test is required, with information of public importance carrying special weight against the enforcement of a prior restraint. The crucial issue then, as we see it, is whether the disclosure of the information in CMP’s possession, even if obtained wrongfully, is of overriding public interest. The court in Perricone – allowing a prior restraint on speech in the face of prospective breach of contract – uses such a balancing test (at 687). Perricone finds that factors “weighed against the enforcement of contractual waivers include the ‘critical importance’ of the right to speak on matters of public concern” (quoting Leonard v. Clark, 12 F.3d 885, 891 (9th Cir. 1993)). In reaching its conclusion to allow a prior restraint, the Perricone court simply goes on to find that the divorcees’ dispute is of dubious public interest – in the court’s wording, the case “‘involves private litigants, and concerns matters of little legitimate public interest’” (quoting Pansy v. Stroudsburg, 23 F.3d 772, 788 (3rd Cir. 1994)).
The California case allowing a pretrial injunction, DVD Copy Association, also carved out an exception for matters of public concern. Volokh finds this to be the wrong outcome, feeling that contract law is a likely exception to doctrine regarding prior restraints. But the standard remedy for breach of contract is post-trial damages. True, as seen above, courts have enforced prior restraints on commercial and private speech. But that seems to have been because the alleged harm suffered by the party seeking enjoinment was quantifiable and outweighed any public interest in the enjoined speech. In the alternate, where the public interest significantly outweighs the alleged potential for private harm, prior restraints are likely unconstitutional.
Indeed, higher protections of speech involving the public interest exist even when that speech threatens national security, as in the Pentagon Papers case—New York Times v. United States, 403 U.S. 713 (1971)—wherein the court ruled that journalistic speech could not be enjoined pre-trial, as any prior restraint bears “a heavy presumption against its constitutional validity.” And the Court later held in the Nebraska Press case that a prior restraint was unconstitutional even when prospective speech threatened the constitutional right of a criminal defendant to a fair trial – surely a weighty private interest.
Does the apparent wrongdoing by CMP make the current cases different from these other cases? We don’t think so: there is a general rule not to impose a prior restraint on speech akin to investigative journalism, even if the information was wrongfully attained. (See In Re King World Productions Inc., 898 F. 2d 56 (6th Cir. 1990), where the court states “because the purpose of the first amendment press freedom clause is to allow the dissemination of information, good or bad, right or wrong, even minimal interference with first amendment freedoms causes an irreparable injury.”) The most pertinent Supreme Court case involving wrongdoing by the party subject to a prior restraint, CBS Inc. v. Davis, 510 U.S. 1315 (1994), concerning investigative journalism of a meat-packing plant in the public interest, similarly declared prior restraints unconstitutional.
According to none other than Justice Blackmun, who wrote the Davis opinion: “Nor is the prior restraint doctrine inapplicable because the videotape was obtained through the ‘calculated misdeeds’ of CBS. In New York Times Co., the Court refused to suppress publication of papers stolen from the Pentagon by a third party. Subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context.” Blackmun goes on: “If CBS has breached its state-law obligations (emphasis is ours), the First Amendment requires that Federal (the meat-packing company) remedy its harms through a damages proceeding rather than through suppression of protected speech” (Davis at 1318).
The contracts being used to censure CMP are state-law obligations. The remedy for breaching them ought therefore to be a damages action, not suppression of free speech.
In short: the release of CMP’s two censored videos is a matter of the utmost public concern. We therefore believe that the two court orders suppressing CMP’s speech violate First Amendment protections.
Serving the Public Interest
The public’s right to know requires that this information be released now. Americans of all persuasions across the country are repulsed by what the videos appear to show – the trafficking of the brains, livers, legs, hearts, eyes, lungs, and even reproductive organs, of fetuses, including viable babies who are able to live outside their mother’s womb.
Of particular interest in both videos currently being restrained by the judiciary are the similar—but not synonymous—issues of late-term and partial-birth (D&X) abortion. Judging by the first full transcript – the one Planned Parenthood supposedly wants you to look at because the short video is supposedly heavily edited – it is possible that Planned Parenthood is violating the federal ban on D&X abortions, and violating federal law by changing the procedure to better-procure intact fetal organs. It is further plausible that one of the ways Planned Parenthood illegally changes the procedure involves inserting more dilating sticks – called laminaria or Dilapan – than would normally be required for an abortion with no organ procurement in mind. Such liberal use of laminaria can cause pre-abortion-appointment live birth, possibly implicating Planned Parenthood and StemExpress in violations of the federal Born Alive Infant Protection Act. Evidence of this is said to be contained in the judicially-restricted videos.
Will the lower courts consider the public interest? Maybe not. “Ex parte” means that CMP didn’t even get to show up in court to state its case, though the TRO only lasts a short period of time because of this. The next step sought by the abortion industry is for the two courts to issue preliminary injunctions (“PI”), meaning release of the videos would be barred pending trial, a process that could take several years. As we write, the federal judge has strongly suggested he would grant NAF a PI. CMP can appeal the PI, though this process could also take several months, and the liberal Ninth Circuit would be hearing that appeal.
In light of all this, we feel it is appropriate for Congress to step in. Regardless of the outcome of current litigation, Congress has a right to compel CMP to produce copies of the videos under its broad subpoena power. Congress should exercise this power.
Compel the Release of the Recordings through a Congressional Subpoena
The Congressional subpoena power is extremely broad, and judicial review of its exercise is very limited. Congress’s power to issue subpoenas is an indispensable adjunct of its law-making power: without access to relevant information, Congress cannot legislate wisely. And law-making is what Congress exists to do. The leading case is McGrain v. Daugherty, 273 U.S. 135, 175 (1927): “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it.”
Not only is a subpoena in Congress’s constitutional power, but the means for issuing one are readily available. House Republicans have recently passed rule changes for the Energy and Commerce Committee, chaired by Fred Upton, allowing Mr. Upton even greater discretion to issue subpoenas without consulting the minority party. The only substantial limitation to this subpoena power is that the information sought be within the scope of Congress’s wide-ranging legislative or investigatory purpose.
Here, Congress is clearly legislating. Congress has just considered a bill to defund Planned Parenthood (which commanded a majority of Senate votes, but not enough to overcome a procedural hurdle). A second round of voting on defunding may come up in the near future. Congress will also soon consider changing the law as to fetal organ sales. And the House Energy and Commerce Committee is investigating possible violations of current federal law dealing with the trafficking of fetal body parts.
The House Energy and Commerce Committee should subpoena the StemExpress and National Abortion Federation recordings from the Center for Medical Progress. In the case of StemExpress in state court, the Supremacy Clause of the Constitution would ensure that a Congressional subpoena trumped any injunction issued by the state court judge. Whether a Congressional subpoena would also trump the federal court’s injunction in the NAF case is a closer question, and to the best of our knowledge no case law exists on the point. Even here, however, we think a Congressional subpoena would prevail. The federal court’s purpose for issuing the injunction is the adjudication of a dispute between two private parties. The Congressional purpose for compelling the release of the NAF recording far transcends such a private dispute in its public importance.
But if CMP complied with a Congressional subpoena and released the video to Congress, it would appear to be in violation of the federal judge’s order. And such non-compliance could place it at risk of being held in contempt of that court. To be sure, CMP could argue that it had a legal duty to comply with the Congressional subpoena, and that that duty supplied it with a valid defense for its failure to comply with the judge’s order. But would that be a winning argument? Even if the judge’s order is unconstitutional, CMP generally has the duty to obey it – unless its duty to obey Congress took priority.
We cannot say for certain that the court would not hold CMP in contempt, even though CMP did have a legal duty to comply with the subpoena. The court might insist that CMP had a higher obligation to obey its order instead, and to defy Congress (though that would subject CMP to the alternative risk of being held in contempt of Congress). But we think that in this event, CMP should be willing to take its chances and deliver the recordings to Congress. If the CMP abided by the request, when it was subject to a lawful Congressional subpoena and under potential threat of being held in contempt of Congress, such an action would constitute compliance with the will of a coordinate branch of the federal government, not civil disobedience or a gratuitous violation of the TRO. If it comes to that, let the federal judge, or even the Ninth Circuit, thumb its nose at Congress. If matters were pressed to that point, we expect that the Supreme Court would review the case.
Once Congress has the two recordings, their contents could be entered into the Congressional Record, read on the floor of Congress, or viewed during a public committee hearing under the Speech or Debate Clause of the Constitution. This constitutional provision provides absolute immunity to the legislative speech of a member of Congress, including if a member were to violate the federal court’s injunction (see Gravel v. United States, 408 U.S. 606 (1972)). And the courts cannot question the motive behind a Congressional subpoena (see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975)). Even if the courts surmised that Congress intended to violate the TRO, they would still be powerless to quash the subpoena.
Are these measures extreme? Far from it. For too long has the abortion industry concealed its atrocities with the aid of lax regulators, media apologists, and abortion-friendly federal courts. We have discussed prior restraints extensively, but neither StemExpress, nor the National Abortion Federation, even remotely discussed that central issue in their complaints and requests for injunctions. It is time that another branch of government pushed back against these infringements on free speech. The People’s House is a good place to start.