Injunction against the publication of information about awoma n'sabortion

[Scarberry, Mark]

 With respect to *Florida Star*, isn't the commission of a serious, violent
crime a matter of public concern (even though of course the crime victim has
legitimate concerns about privacy)? It is a matter on which legislation or
other political activity (e.g.,pushing for an increase in the number of
police) may be predicated. It is at least conceivable that publication of
full information about violent crime contributes to the public discussion.
Full information allows others to try to check on the truthfulness of the
story. It also may bring home to the public the terrible effects of violent
crime such as rape on particular persons.

That's not to say I would publish the victim's name were I the editor of the
newspaper, but it does, I think, distinguish the Coca Cola secret formula
hypothetical. No one needs to know the secret formula to discuss the merits
of various public policies dealing with trade secrets.

*Florida Star* may thus not be inconsistent with *Bartnicki*. (But others
are much more knowledgeable than me in this area, so I may be missing
something.)

Mark Scarberry
Pepperdine Univ. School of Law


-----Original Message-----
From: Lederman, Marty
To: CONLAWPROF at listserv.ucla.edu
Sent: 8/29/01 8:08 AM
Subject: Re: Injunction against the publication of information about
awoman'sabortion
Sensitivity: Personal

Eugene:  I would have agreed with your doctrinal assessment
wholeheartedly before Bartnicki.  But perhaps the most eye-opening
passage of the Court's opinion in that case was the hint that the
"publication of true facts" doctrine might have significantly less force
in a case of "private matters unrelated to public affairs" (citing Time
v. Hill).  Moreover, the Court specifically indicated that trade secrets
are matters of "purely private concern" -- which, if it were a holding,
would appear to permit liability against, e.g., the Atlanta Constitution
for disclosing the seecret formula for Coca-Cola!  (This is quite
remarkable in light of Florida Star, in which the Court held that the
name of a rape victim was a matter of public, rather than private,
concern.)  The passage in question is found at 121 S. Ct. at 1764:

"We need not decide whether that interest [in privacy of communication]
is strong enough to justify the application of § 2511(c) to disclosures
of trade secrets or domestic gossip or other information of purely
private concern. Cf. Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967)
(reserving the question whether truthful publication of private matters
unrelated to public affairs can be constitutionally proscribed)."

Marty Lederman


-----Original Message-----
From: Eugene Volokh [mailto:volokh at MAIL.LAW.UCLA.EDU]
Sent: Tuesday, August 28, 2001 9:35 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Injunction against the publication of information about
awoman'sabortion


        Sorry for the delay in responding.  I agree that injunctions --
and in some
situations any sort of liability -- in I/P cases can be quite troubling.
Preliminary injunctions in cases of "transformative" borrowing pose
particularly serious prior restraint problems, see
http://www.law.ucla.edu/faculty/volokh/copyinj.htm; I also think that
any
form of liability in right of publicity cases that don't involve
commercial
advertising (and that are outside the very narrow context approved in
Zacchini) should be unconstitutional, though some lower courts seem to
take
the opposite view.  Liability and probably injunctions against people
who
break trade secret agreements should be permissible under Cohen v.
Cowles
Media, but in my view not when entered against downstream publishers,
e.g.,
media entities to which the trade secret was leaked.  (Cf. the district
court decision in Ford Motor Co. v. Lane.)  It turns out that such
lawsuits
against downstream publishers are actually very rare.

        Nonetheless, the fact remains that copyright law, at least, has
been
constitutionally validated by the Court, see Harper & Row v. Nation
Enterprises; and a good deal of speech is indeed restricted in the name
of
copyright law.  My thought, though is that this exception to free speech
protection -- which is justified largely by the fact that copyright law
doesn't let anyone monopolize facts or ideas (but only expression), by
the
sense that one ought not interpret the Free Speech Clause as
eviscerating
the Copyright/Patent Clause, and by the longstanding assumption that
copyright law really is necessary to stimulate the production of new
expression -- should not be lightly extended to other proposed property
rights in information.  Property rights in information *are* speech
restrictions:  They are means of barring other people from communicating
what they please.  They should therefore be examined with the care that
we
use to examine other speech restrictions.  And in particular, the notion
of
a property right in *facts* is quite problematic, as Harper & Row itself
made clear.  (See generally
http://www.law.ucla.edu/faculty/volokh/privacy.htm#Property .)

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Michael Curtis
> Sent: Friday, August 24, 2001 5:00 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Injunction against the publication of information about
> awoman'sabortion
>
>
> I seem to recall a case of a college student who (without her
> knowledge) video taped
> himself having sex with his girl friend.  He then was showing the
> video at the frat
> house or somewhere similar.  An injunction was issued against the
> conduct.  If
> injunctions are constitutionally suspect in such cases--medical
> records, projecting
> sex thought to be private, etc.--then what is the status and
> justification, if any,
> for injunctions in the intellectual property field--or preventing
> the revelation of
> trade secrets, or etc.?
>
> I know little about the intellectual property, trade secret area
> & injunctions and
> free speech rights, but if individuals cannot have a privacy right in
such
> circumstances, it seems curious that corporate property rights would
> be protected.  I think Eugene has written some on this subject
> and if so might discuss
> it.
>
> Michael Curtis
> Eugene Volokh wrote:
>
> >         There are two questions:
> >
> >         (1)  Is the speech constitutionally protected, or does
> it fit within some
> > exception to free speech protection?
> >
> >         (2)  Even if it does fit within some exception, and can
> thus be punished
> > through damages or criminal penalty, is it nonetheless not
enjoinable?
> >
> >         "Disclosure of private facts" is indeed a tort, but
> it's not clear whether
> > it's constitutionally valid -- i.e., whether speech disclosing
> private facts
> > as defined by the relevant tort law is constitutionally
> unprotected or not.
> > After all, intentional infliction of emotional distress and
interference
> > with business relations are also torts, but the Court correctly
> concluded
> > that they cannot punish constitutionally protected speech, and that
much
> > speech that fits within those torts is indeed constitutionally
> protected.
> > See Hustler; Claiborne Hardware.
> >
> >         If one does conclude that the speech covered by the
> tort is indeed
> > constitutionally unprotected, then one has to ask whether it's
> enjoinable as
> > well as punishable by a damages award.  I think that permanent
> injunctions
> > of constitutionally unprotected speech are indeed justifiable,
> see Kingsley
> > Books; Pittsburgh Press, and should be allowed, see generally Part
II of
> > http://www.law.ucla.edu/faculty/volokh/copyinj.htm; but there's a
strong
> > tradition to the contrary, and in fact many courts have held
> that libels,
> > even if punishable by damages, nonetheless cannot be enjoined.
> >
> >         But the key preliminary question is whether the tort is
indeed
> > constitutional, both facially and as applied here.  I believe
> that the tort
> > as currently defined is overbroad and thus unconstitutional,
> even though I
> > certainly sympathize with the plaintiff here.
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: Discussion list for con law professors
> > > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
> > > Sent: Friday, August 24, 2001 12:25 PM
> > > To: CONLAWPROF at listserv.ucla.edu
> > > Subject: Re: Injunction against the publication of information
about a
> > > woman'sabortion
> > >
> > >
> > > is invasion of privacy not a tort?  Is does strike me that a
> > > private citizen's
> > > medical information is about as private as it gets.
> > > What is the law in general on injnctions to stop tortious
> > > behavior, or is no
> > > generalization available?
> > > LFG
> > >
> > > Eugene Volokh wrote:
> > >
> > > >         Any thoughts on this?  I think that publishing such
> > > information is pretty
> > > > loathsome conduct, but I wonder whether an injunction against
such
> > > > publication can be reconciled with the First Amendment,
> especially given
> > > > NAACP v. Claiborne Hardware and Organization for a Better
> > > Austin v. Keefe.
> > > >
> > > >         Recall that in the context of the boycott in Claiborne
> > > County, the fact
> > > > that a black customer was shopping at a white-owned store could
> > > be highly
> > > > embarrassing for the customer -- and actually exposed the
> > > customer to a risk
> > > > of violence, something that thankfully seems not to be the
> > > case, at least as
> > > > of now, as to women who get abortions.  Can a court really
> enjoin such
> > > > speech?  Can it really stop people from accurately
> reporting facts that
> > > > suggest that a neighbor has behaved in ways that they think
(even if
> > > > wrongly) to be monstrous, whether it's getting an abortion
> or betraying
> > > > their friends and neighbors?
> > > >
> > > >         Eugene
> > > >
> > > > "Judge bans woman's abortion information from Internet",
> > > >
> > > http://www.salon.com/tech/wire/2001/08/23/abortion_info/index.html
> > , Aug. 23,
> > > 2001
> > >
> > > A judge Wednesday ordered three anti-abortion activists to
> stop publishing
> > a
> > > woman's medical records detailing complications from an
> abortion. . . .
> > >
> > > Daniel and Angela Michael of Highland, who are regular
> protesters at the
> > > clinic, admitted they took pictures of the woman as she was
> taken to the
> > > hospital's emergency room.
> > >
> > > Soon after, a copy of the woman's medical records, her
> photograph and an
> > > article written by Angela Michael about the case appeared on
> a Web site
> > > operated by Stephen Wetzel of Omaha, Neb.
> > >
> > > The woman sued Wetzel, the Michaels and the hospital for violation
of
> > > privacy, seeking more than $50,000 in damages.
> > >
> > > Judge George Moran temporarily barred the Michaels and Wetzel from
> > > publishing the material. Other anti-abortion Web sites have
> also posted
> > it.
> > > . . .
>