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.
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