Injunction against the publication of information about awoman'sabortion

[Leslie Goldstein]

the original coca cola recipe did, I understand, contain cocaine, and now
contains coffee, so there are arguments that public policy may be relevant to
contents, certainly for any food or drink or drug, and arguably re:product
safety for all sorts of products.
I consider the name of a rape vicitm much more intrinsicaly private and believe
the Court went seriously astray there and is now (what else is new) incoherent
on this specific comparison.
LFG
"Scarberry, Mark" wrote:

>  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.
> > > > . . .
> >