National Abortion Federation seeks pretrial injunction blocking release of videos of its conference

Screen shot from video released by the Center for Medical Progress showing Planned Parenthood Federation of America’s senior director of medical services, Dr. Deborah Nucatola, as she describes how Planned Parenthood sells the body parts of aborted unborn children. This story is about another video suspected to have been recorded by the Center, also related to abortion. (Courtesy of Center for Medical Progress)

The National Abortion Federation has sued the Center for Medical Progress in federal court and seeks a pretrial injunction ordering the center not to publish certain videos that the center recorded. The federation claims that center representatives got access to a federation conference by fraudulently posing as exhibitors and signing a nondisclosure agreement that they had no intention of abiding by:

[A]ll attendees must sign a non-disclosure agreement (NDA) to gain admittance to the meeting. Under the terms of the NDA: (1) attendees must not videotape or record at the meeting; (2) all information distributed or otherwise made available at the meeting is confidential and may only be used “to help enhance the quality and safety of services provided by NAF members and other participants”; (3) attendees “may not use NAF Conference Information in any manner inconsistent with these purposes”; and (4) attendees may not disclose any information learned at the meetings to third parties, without NAF’s consent.

The center’s suspected videorecording, the federation argues, breached this contract and also violated Cal. Penal Code § 632, which bars the audiorecording of “confidential communication” without all parties’ consent. The federation therefore wants the court to forbid the center from releasing the videos, and do so right away, before any trial on the merits.

Here are a few thoughts on the legal question, which borrow from this post about a similar lawsuit. (I set aside here any debate about the moral merits of abortion — I focus here on what I’m relatively expert on, which is the First Amendment question. I also assume, for purposes of this post, that the facts are as the federation alleges. To my knowledge, the center did not file any documents that express its contrary view of the facts, though it will surely file various documents as the case proceeds, and may well contest the federation’s factual account.)

1. As I noted before, injunctions barring speech — especially before a full trial on the merits at which the court decides whether the speech is protected — are generally unconstitutional “prior restraints.” That, for instance, is why you can’t get a pretrial injunction against alleged libels. After a full trial, speech can be punished, the speaker can be required to pay damages, and quite likely repeating the very same speech found to be unprotected can be prohibited (though a few state courts disagree on that last point). But before the finding on the merits, the speech generally can’t be enjoined, though there are some exceptions (for instance, copyright cases, despite arguments that those cases should be treated like libel cases in this respect).

2. But First Amendment rights can be waived by contract, even when it comes to matters of public concern (Cohen v. Cowles Media Co. (1991)). State law might sometimes render some such contracts unenforceable, but First Amendment law generally doesn’t disturb them, and these sorts of nondisclosure agreements are routinely enforced. And pretrial injunctions against the breach of such contracts are likely constitutional, too. Moreover, contract law is generally viewed as a content-neutral basis for restricting speech, as opposed to content-based restrictions such as libel law or obscenity law. Content-neutral posttrial permanent injunctions are subject to lower First Amendment scrutiny than content-based ones, see Madsen v. Women’s Health Center, Inc. (1994), and content-neutral pretrial injunctions might likewise be viewed as subject to lower First Amendment scrutiny.

Indeed, in DVD Copy Control Ass’n, Inc. v. Bunner (Cal. 2003), the California Supreme Court upheld a pretrial injunction against the publication of a trade secret, where the defendant was found to have gotten the trade secret by violating a license agreement (the agreement banned reverse engineering, which the defendant was found to have engaged in). I’m not sure all the reasoning in the DVD Copy Control Ass’n decision is correct, but federal courts are likely to find it persuasive.

But on the other hand, the court in DVD Copy Control Ass’n concluded (in my view incorrectly, but that’s a separate question) that the trade secret in that case did not “involve[] a matter of public concern.” The speech here does involve a matter of public concern. So perhaps even despite the confidentiality agreement — again, we’re assuming here that the facts are as the federation says, and the recording and disclosure indeed breaches the agreement — the publication of the recording is protected against a pretrial injunction, though not against civil liability.

3. What about § 632? As I discussed in the previous post, it might be constitutional for courts to issue pretrial orders barring the publication of material recorded in violation of § 632, even if there’s no nondisclosure agreement involved. But here, I’m skeptical that § 632 would apply.

Most states allow the surreptitious recording of a conversation so long as one party consents to the recording. In some states, though, including California, such secret recording of “confidential communications” is generally illegal unless all parties to the conversation consent, see Cal. Penal Code § 632. “[A] conversation is confidential,” and thus may not be recorded without consent, “if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” A conversation can be confidential even if it is in a public place, but only so long as the parties reasonably expect that the conversation isn’t being overheard or recorded.

My guess — and to my knowledge there’s no California caselaw on this — is that many conversations at a busy conference would not be treated as “confidential,” even if everyone has signed nondisclosure agreements. Though the attendees might not expect that they will be recorded (indeed, most of us rarely expect that we’ll be recorded, except in specific public places), they probably would realize that their conversations might well be overheard. Some specific conversations, carried on in hushed tones in secluded areas of the conference, might be covered by § 632; but other conversations, for instance at an exhibitor booth when others are routinely walking by, likely aren’t.

Still, I don’t think the federation needs to win on the § 632 claim, assuming the contractual provisions are as they say — the breach of contract claim, and the request for a pretrial injunction to prevent further breach, would be pretty strong (though subject to the uncertain prior restraint objection, which would equally apply as to the § 632 claim).

4. Bartnicki v. Vopper (2001) says that third parties to which even an illegally gathered document is leaked, and who are otherwise unconnected to the illegal recorder, are generally free to publish such recordings, at least so long as they are on matters of “public concern” (which these videos likely would be). The same logic would apply to unconnected third parties that publish information gathered and leaked in breach of a contract. But the center, which itself signed the nondisclosure and nonrecording contract, wouldn’t be protected by Bartnicki.

5. So the bottom line: It’s not clear whether a pretrial injunction based on the alleged breach of confidentiality agreement is unconstitutional. But there is at least a substantial case in favor of its constitutionality, despite the prior restraint doctrine — of course, assuming the facts are as the federation alleges (and assuming I haven’t missed something big here).

Thanks to Ken White (Popehat) for the pointer to the federation’s motion.


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Court temporarily bars publishing allegedly illegally recorded conversation about transactions in aborted fetus body parts

Screen shot from video released by the Center for Medical Progress showing Planned Parenthood Federation of America’s senior director of medical services, Dr. Deborah Nucatola, as she describes how Planned Parenthood sells the body parts of aborted unborn children. This story is about another video apparently recorded by the Center, and related to the same subject matter. (Courtesy of Center for Medical Progress)

The Associated Press reports:

A temporary restraining order has been issued preventing an anti-abortion group from releasing any video of leaders of a California company that provides fetal tissue to researchers. The group is the same one that previously shot viral covert video of a Planned Parenthood leader discussing the sale of aborted fetuses for research.

The Los Angeles Superior Court order issued Tuesday prohibits the Center for Medical Progress from releasing any video of three high-ranking StemExpress officials taken at a restaurant in May. It appears to be the first legal action prohibiting the release of a video from the organization.

The Center for Medical Progress has released three surreptitiously recorded videos to date that have riled anti-abortion activists. The Senate is expected to vote before its August recess on a Republican effort to bar federal aid to Planned Parenthood in the aftermath of the videos’ release.

Does such a restraining order violate the First Amendment? I’ll set aside here any debate about the moral merits of abortion, the use of fetal tissue, charging for fetal issue and the like — I focus here on what I’m relatively expert on, which is the First Amendment question. And I’ll also assume, for purposes of this post, that the facts are as StemExpress alleges. To my knowledge, the center did not file any documents that express its contrary view of the facts, though it will surely file various documents as the case proceeds, and may well contest StemExpress’s factual account.

1. Generally speaking, injunctions barring speech — especially before a full trial on the merits at which the court decides whether the speech is protected — are unconstitutional “prior restraints.” That, for instance, is why you can’t get a pretrial injunction against alleged libels. After a full trial, speech can be punished, the speaker can be required to pay damages, and quite likely repeating the very same speech found to be unprotected can be prohibited (though a few state courts disagree on that last point). But before the finding on the merits, the speech generally can’t be enjoined, though there are some exceptions (for instance, copyright cases, despite arguments that those cases should be treated like libel cases in this respect).

2. The question here is whether such pretrial injunctions should be allowed when it comes to allegedly illegally recorded materials — and, relatedly, whether the materials were illegally recorded.

a. Let’s begin with whether the materials were illegally recorded (if StemExpress is right in its assumption that the center did indeed record them, and if StemExpress’s account of the facts is correct). Most states allow the surreptitious recording of a conversation so long as one party consents to the recording.

In some states, though, including California, such secret recording of “confidential communications” is generally illegal unless all parties to the conversation consent, see Cal. Penal Code § 632. “[A] conversation is confidential,” and thus may not be recorded without consent, “if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” And a conversation can be confidential even if it is in a public place, so long as the parties reasonably expect that the conversation isn’t being overheard or recorded.

According to StemExpress, the meeting was “in a virtually-empty dining room [in the restaurant] outside of the earshot of other diners, [StemExpress’s representative] ensured that the conversation ceased when employees approached the table, and both [StemExpress representatives] asked [the person who later turned out to be a Center for Medical Progress representative] to lower her voice when they believed she might be overheard.” If that’s true, then Cal. Penal Code § 632 likely applies. Compare Cuviello v. Feld Entertainment Inc., a recent federal trial court case concluding that the California statute could cover a quiet conversation among two protesters on a sidewalk, when they had no reason to expect that it was being overheard or recorded.

b. So let’s say that the recording violated § 632; does it mean that the publication of the recording could also be punished? (Save for a moment the question whether it could be prohibited through an injunction.) Well, Bartnicki v. Vopper (2001) says that third parties to which the document is leaked, and who are otherwise unconnected to the illegal recorder, are generally free to publish such recordings, at least so long as they are on matters of “public concern” (which the controversy about the use of aborted fetal issue would be). But what about the actual illegal recorder or those actively conspiring with the recorder (again, assuming the recording was illegal)?

That turns out to be an unresolved question. As the Supreme Court has noted, the famous Pentagon Papers case “raised, but did not resolve, the question ‘whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.‘” Other Supreme Court cases likewise didn’t resolve this question.

c. Finally, we turn to the “prior restraint” question: Even if the recording and the publication was likely illegal, and could potentially be punished criminally — or lead to civil liability — after a full trial on the merits, could the publication be subject to a pretrial injunction (which is generally based on a prediction that the plaintiff is likely to prevail at trial)? Generally speaking, as I mentioned, such pretrial injunctions are unconstitutional.

But here, Cal. Penal Code § 632 — unlike, for instance, libel law or obscenity law — is likely to be treated as a content-neutral restriction on information gathering, and an accompanying content-neutral restriction on the distribution of illegally gathered information. Content-neutral posttrial permanent injunctions are subject to lower First Amendment scrutiny than content-based ones, see Madsen v. Women’s Health Center, Inc. (1994). It’s possible that content-neutral pretrial injunctions would likewise be viewed as subject to lower First Amendment scrutiny, and adequately justified by the interest in protecting plaintiffs from the consequences of defendants’ likely illegal conduct.

Indeed, in DVD Copy Control Ass’n, Inc. v. Bunner (Cal. 2003), the California Supreme Court upheld a pretrial injunction against the publication of a trade secret, where the defendant was found to have gotten the trade secret by violating a license agreement (the agreement banned reverse engineering, which the defendant was found to have engaged in). Though I’m not sure all the reasoning in the DVD Copy Control Ass’n decision is correct, it is the view of the California Supreme Court. And it would likely apply to secret information gotten in violation of Cal. Penal Code § 632 as well.

But on the other hand, the court in DVD Copy Control Ass’n concluded (in my view incorrectly, but that’s a separate question) that the trade secret in that case did not “involve[] a matter of public concern.” The speech here does involve a matter of public concern. So perhaps even despite DVD Copy Control Ass’n, the content-neutrality of § 632, and the center’s participation in the illegal recording — again, we’re assuming here that the facts are as StemExpress says, and the recording is indeed illegal — the publication of the recording is protected against a pretrial injunction, though not against criminal punishment or civil liability.

3. As an excellent post by Ken White (Popehat) points out, though, there’s another twist to the case: A month after the meeting, the center signed a nondisclosure agreement with StemExpress and got various documents from StemExpress pursuant to that agreement. As I read StemExpress’s arguments, StemExpress is not claiming that the agreement applies to the information disclosed in the conversation a month before. But the agreement does seem to apply to the documents that StemExpress gave the center.

First Amendment rights can be waived by contract, even when it comes to matters of public concern (Cohen v. Cowles Media Co. (1991)). State law might sometimes render some such contracts unenforceable, but First Amendment law generally doesn’t disturb them, and these sorts of nondisclosure agreements are routinely enforced. And pretrial injunctions against the breach of such contracts are likely constitutional, too.

Yet the trial court expressly refused to block the publication of the documents. It’s not clear to me why the court acted this way, though I suspect that is based on some state-law grounds, rather on First Amendment grounds.

4. So the bottom line: It’s not clear whether the pretrial injunction is unconstitutional, but there is at least a substantial case in favor of its constitutionality, despite the prior restraint doctrine — of course, assuming the facts are as StemExpress alleges (and assuming I haven’t missed something big here). Wish I could give you something more definite, but I can’t.


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Federalism and constitutional property rights – a response to Rick Hills

As noted in my last post, the Washington Times recently published opposing columns on constitutional property rights by NYU law professor Roderick Hills and myself. Much of Hills’ thoughtful column is a critique of my previous work calling for stronger judicial enforcement of constitutional limits on the use of eminent domain to condemn private property.

Hills’ main point is that federal courts should mostly leave property rights issues to the states, because state and local officials have greater expertise about relevant local conditions and are less likely to make serious errors. As I have pointed out in previous exchanges with Hills on this issue going back to 2010, the logic of his argument goes far beyond property rights:

This kind of argument against federal court enforcement of constitutional rights isn’t limited to… the Takings Clause, or even property rights generally. It applies to federal judicial enforcement of any constitutional right that requires policing a large number of complex policy decisions by a wide range of state and local officials. Consider state and local policies on freedom of religion, racial discrimination, and searches and seizures. Lots of different state and local governments have policies that regulate various religious groups or engage in racial discrimination. And, obviously, religious and racial issues differ enormously from state to state. Consider the vast differences between, say, Idaho, Mississippi, and New York. Things are even worse when it comes to the Fourth Amendment…. [T]he conditions that determine whether a search is “reasonable” or not vary from house to house, to say nothing of city to city or state to state. Yet few claim that such complexity and diversity disqualify federal judges from enforcing the First and Fourth Amendments.

If superior local expertise is not a good justification for federal judicial abdication of responsibility for enforcing other constitutional rights against state governments, it cannot justify tolerating violations of constitutional property rights either. Moreover, as I explained more fully in an article inspired by earlier debates with Hills, federal judicial enforcement of constitutional property rights actually promotes rather than undermines the use of superior local knowledge. When federal courts protect property rights against violation by state and local governments, it is not federal judges, but private property owners who ultimately get to determine the use of the property in question. And, most of the time, property owners both have greater knowledge about their land than government officials, and stronger incentives to use it efficiently. Even if federal judges know less about the property in question than state officials do, property owners are likely to know more than both.

Hills suggests that “public use” constraints on eminent domain, in particular, should be left up to state discretion because the Public Use Clause is “ambiguous.” For reasons I discuss here, there is a strong case for construing “public use” narrowly on both originalist and living constitution grounds. At the very least, “public use” is no more ambiguous than many other broad, general phrases in the Constitution that federal courts enforce all the time, such as “due process,” “equal protection” or “unreasonable searches and seizures.”

Hills also cites Detroit as an example of a city that could benefit from being able to use eminent domain to condemn property for transfer to private parties. I have to admire his chutzpah in relying on this particular example. Detroit is a city with a long history of extensive eminent domain abuse, lowlighted by the infamous 1981 Poletown case, in which some 4000 people were forcibly displaced so that the land could be transferred to General Motors to build a new factory. Ultimately, Detroit’s misuse of eminent domain was a notable factor in the city’s economic decline, culminating in bankruptcy. To say that Detroit would be better off with more use of eminent domain is a little like saying that the Soviet economy would have worked better if only they had relied more on central planning.

In Hills’ view, the city today needs to use eminent domain to seize “derelict structures owned by absentee landowners that bring down the property values of neighboring lots.” But to the extent that these structures really are “rat-infested, crime-harboring wrecks,” as Hills describes them, it is unlikely that the owners would have much objection to selling them voluntarily. If the owner cannot be identified and is not paying property taxes, the property can be seized for tax delinquency or dealt with by a variety of other means. Addressing such problems does not require giving local governments a blank check to condemn property for transfer to influential private interest groups – the very sort of taking that helped get Detroit into dire straits in the first place. Indeed, as development economists emphasize, the protection and security of private property rights is an important prerequisite to promoting sustained growth in economically depressed areas.

Finally, Hills argues that federal courts need not intervene to protect property rights because the states can be trusted to do so on their own. For example, he notes that the Michigan Supreme Court eventually reversed the Poletown decision in 2004. There has indeed been important progress on property rights issues in some states. However, since the Supreme Court first ruled that states and local governments could condemn property for almost any reason they want in the 1954 case of Berman v. Parker, state governments have forcibly displaced hundreds of thousands of people, most of them poor or racial minorities. Progress at the state level has been uneven and often excruciatingly slow. Even in a state like Michigan, where abuses of eminent domain were particularly severe, it took fifty years for the state supreme court to impose significant constraints, and state legislators took even longer to act. Many states have made much less progress than that.

In the same year that it decided Berman v. Parker, the Supreme Court also decided Brown v. Board of Education. If the Court had deferred to the states on on the issue of racial segregation in schools back then, it is quite possible that at least some southern state governments would have partly (or even fully) desegregated their schools on their own by 2004. But few would argue that this would have justified federal judicial deference in Brown.

While we will probably continue to disagree on this question, I am grateful for Hills’ contribution to the debate over property rights and judicial review. His insightful criticism has inspired me to write what I think is one of my better articles of the last few years, among other works.


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The Supreme Court and property rights

In a recent Washington Times column sponsored by the Federalist Society, I briefly survey the Supreme Court’s often-dubious record on protecting constitutional property rights:

The protection of private property rights was one of the Founding Fathers’ main goals in establishing the Constitution….

The Constitution includes several provisions protecting property rights from the depredations of government. Unfortunately, the Supreme Court has often failed to fully enforce them, relegating constitutional property rights the status of a “poor relation,” as a 1994 decision critical of such tendencies put it….

Nowhere is the second-class status of property rights more evident than in the Court’s treatment of the Takings Clause of the Fifth Amendment, which mandates that the government can only take private property for a “public use,” and must pay just compensation when it does so….

In recent years, the Court’s record on property rights has improved. In several decisions, it has gradually strengthened protection against uncompensated takings….

But while the Court’s performance in this vital field has improved, there is still a long way to go before the right to private property can fully shed its “poor relation” status.

The Times and the Federalist Society have simultaneously published a column by the highly respected NYU law professor Roderick Hills defending the view that federal courts should largely abjure protection of property rights, and leave most such issues up to the discretion of state governments. Much of Hills’ column is a critique of my previous writings on these issues. I will respond to him in a separate post later today.


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Court upholds restriction on doctor-patient speech about guns

Yesterday, the 11th Circuit handed down a substantially revised opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case. (I’d been following the controversy for quite a while, but didn’t have a chance to blog about the earlier opinion, which was handed down a year ago.) The court upheld the law, which limits doctors’ speech to their patients about the patients’ gun ownership. But I think the court is mistaken, and the law should have been held to violate the First Amendment. I share many people’s skepticism about much of the “public health” anti-gun advocacy; but I think this is no basis for suppressing doctors’ speech this way.

1. First, what does the statute actually do?

A. It provides that a doctor may not ask questions (in writing or orally) “concerning the ownership [or home possession] of a firearm or ammunition by the patient or by a family member,” unless the doctor “in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others.” And, according to the court, “relevant” here means relevant based on “some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies.” A doctor thus may not ask all patients, or all patients with children, whether they own guns, whether on an intake questionnaire or in person, even if the doctor believes that this information would indeed be useful in giving general advice about safe gun storage, the supposed dangers of any gun ownership, and the like.

B. It bans doctors from “intentionally enter[ing] any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others,” with the same interpretation of “relevant.”

C. It provides that patients may “decline to answer or provide any information regarding ownership [or home possession] of a firearm,” though such a refusal “does not alter existing law regarding a physician’s authorization to choose his or her patients.” Nonetheless, it provides that doctors “may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.” This suggests that doctors may turn away patients for refusing to answer questions about guns (so long as they are “relevant” based on “some particularized information about the individual patient”), but may not turn away patients for answering the questions with “yes, I own a gun.”

D. It bans doctors “from unnecessarily harassing a patient about firearm ownership during an examination.” This means, according to the court, that a doctor “should not disparage firearm-owning patients, and should not persist in attempting to speak to the patient about firearm ownership when the subject is not relevant [based on the particularized circumstances of the patient’s case, such as the patient’s being suicidal] to medical care or safety.”

2. This, the court acknowledges, is a restriction on doctors’ speech. But, the court concludes, when a professional (lawyer, doctor, financial planner, and the like) is directly advising a client — as opposed to, say, opining on law or medicine on a blog — that professional-client speech is more restrictable.

Now it’s pretty clear that professional-client speech is indeed subject to more restriction than other speech, though the Supreme Court hasn’t told us just what the rule there is. For more on the subject, see this post; but here’s a quick summary:

  1. The government can require you to get an expensive, time-consuming license before you give a client legal, medical, psychiatric, or financial advice, though the First Amendment would bar any such requirement for journalists, authors, documentarians, and the like.
  2. The court system can hold you liable for supposedly negligent predictions and recommendations, though newspapers and book publishers can’t be sued for supposedly negligent statements about what the stock market will do, about whether vaccines are dangerous, or about how you should arrange your legal affairs.
  3. The government can require professionals to give all sorts of disclaimers and other information to their clients, though that would be impermissible speech compulsion as to newspapers, books, blogs, and the like. To quote the lead opinion in Planned Parenthood v. Casey (1992), which upheld a requirement that doctors give various materials to women who are considering abortion, “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”

Recent lower court opinions have therefore held that content-based restrictions on professional-client speech are subject to some First Amendment scrutiny, but only so-called “intermediate scrutiny” rather than the very-hard-to-satisfy “strict scrutiny.” The court in this case agreed. (That’s a big part of how this revised opinion differs from last year’s original opinion — the court here applies intermediate scrutiny, where last year’s opinion concluded that even that scrutiny was unneeded, because “[t]he Act as a whole ‘governs occupational conduct, and not a substantial amount of protected speech,’” so that “[a]ny burden the Act places on speech is thus incidental to its legitimate regulation of the practice of medicine.”)

3. But even intermediate scrutiny — if that’s the right test — requires some serious justification for a speech restriction. Among other things, it requires that there be a “reasonable fit” between the speech restriction and the supposedly important reasons justifying the restriction. And here, I think, there’s no such fit.

A. The majority concludes that the law is justified by the interest in protecting patient privacy. But Florida law seems just fine with doctor-patient speech that asks about all sorts of private questions, including private questions about the exercise of constitutional rights. Doctors can ask, “Are you sexually active?” “Are you using contraceptives?” “What kinds of contraceptives are you using?” “Do you want to have children at some point?” “Have you ever been pregnant?” “How many sexual partners have you had in the past year?” “Are you engaging in anal sex?” “How much television do your children watch?” “Do your children play violent videogames?”

There is, to my knowledge, no restriction on such questions, no requirement that doctors ask them only based on “some particularized information about the individual patient.” Some doctors likely do ask some such questions, on a relatively blanket basis. The questions are at least as intrusive as questions about guns; indeed, many people find some such information more private than gun ownership.

Yet the legislature doesn’t seem to take the view that Floridians need to be protected against such supposed “intrusions on privacy.” The normal ways of dealing with intrusive questions — such as saying “I’d rather not talk about this with you,” something people can say even to doctors — seem to be quite sufficient when it comes to private information such as this. Why aren’t they sufficient when it comes to guns?

The majority points to “the highly disparate power balance of the physician-patient relationship.” But a doctor isn’t going to arrest you. (He might in some situations get you mentally committed, but in those situations he wouldn’t even be covered by the Florida speech restriction, since then he would have a particularized reason to ask about your guns.) He’s not going to fire you. At most he might tell you to find a new doctor — a hassle, but generally not something that’s so hard to do. If this sort of “disparate power balance” is all it takes to suppress the “powerful” person’s First Amendment rights, the First Amendment is in pretty substantial danger.

Now the doctor does have “power” in the “knowledge is power” sense: Because he knows much more about medicine than you do, you’re likely to follow his instructions. That’s why bad medical advice can lead to malpractice liability, or professional discipline. But the law isn’t limited to doctors who advise you to do things that prove dangerous to you. It covers all blanket questions about gun ownership, regardless of whether those questions lead to sound advice, professionally incompetent advice, or no advice at all.

And this selective targeting of questions about guns — when other, likely quite common, questions about private matters aren’t restricted — suggests that this law isn’t really about protecting privacy as such. Rather, it’s about preventing doctors from spreading what many gun rights supporters see as unsound anti-gun propaganda. As I mentioned, I share some of this concern. But this can’t be a permissible basis for the government restricting doctors’ speech (again, unless the speech is itself so unreasonable and harmful as to constitute malpractice, something to which this law is not at all limited).

B. The state also argued that “the state has a compelling interest to ensure that health care is available to citizens who need it, irrespective of whether they own guns.” That might justify a ban on discrimination against gun owners, and that ban wouldn’t violate the First Amendment (at least if the ban was focused on refusals to treat, and didn’t include speech that gun owners found offensive). But it doesn’t justify the restrictions on questions, recordkeeping, “disparage[ment of] firearm-owning patients,” or “persist[ing] in attempting to speak to the patient about firearm ownership.”

There may be a compelling interest in making sure people can get health care — but under the First Amendment, I don’t think there can be an adequate interest in shielding people from questions and arguments they find offensive while they are getting health care. If they don’t like such questions and arguments, they can go to a doctor they like better. And indeed this is precisely the view that the state rightly takes with regard to patients who don’t like what their doctors ask or say about alcohol or smoking or drugs or promiscuity or chocolate or violent video games.

C. The state argued that “the right to keep and bear arms for personal protection is guaranteed by the U.S. and Florida Constitutions.” So it is; I’ve written articles myself defending the view that the Second Amendment secures such a right.

But a constitutional right is a right to be free of governmental restrictions on the exercise of the right — it is not a right to be free of private criticism for the exercise of the right, much less private questions about the exercise of the right. A doctor no more violates your Second Amendment rights by asking you about whether you own a gun than the doctor violates your First Amendment rights by asking you how much TV your children watch, or your Lawrence v. Texas sexual autonomy rights by asking you whether you’ve been having sex with multiple partners.

D. Finally, the state argued that “Florida aims to prevent discrimination and harassment against gun owners.” I’ve talked briefly above about discrimination. But as to “harassment,” I don’t think Florida has a sufficient interest in protecting patients from criticism or from unwanted persistent attempts to talk about guns.

Patients can certainly try to protect themselves from that, by switching doctors, by posting bad Yelp reviews about the doctors whom they’ve left and perhaps by reminding doctors that likely a third to a half of their patients own guns, and alienating such patients is bad for business. But suppressing such speech to protect the listeners’ sensibilities can’t be an adequate justification given the First Amendment.

So it seems to me that the majority here is mistaken, and the dissent is largely correct (though I don’t entirely agree with all of the dissent’s analysis). It will be interesting to see whether the 11th Circuit agrees to rehear the case en banc, before all of its judges. (The challengers asked for such rehearing en banc, but their petition was dismissed as moot given the revised opinion; they can now modify their petition in light of the revised opinion, and ask for en banc again.) And it will be interesting to see whether the case ends up before the U.S. Supreme Court, which would then have an excellent opportunity to help clarify what sorts of professional-client speech restrictions are allowed.


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N.Y. appellate court refuses to order release of Eric Garner grand jury materials

A protest in Atlanta in December against the decision of a grand jury not to indict a police officer involved in the death of Eric Garner. (ERIK S. LESSER/European Pressphoto Agency)

From today’s decision in In re James v. Donovan:

These appeals arise out of the death of Eric Garner on July 17, 2014, and a grand jury’s decision not to return an indictment against the target or targets of its investigation. After impaneling a grand jury to hear evidence concerning the circumstances of Garner’s death, the District Attorney of Richmond County … petitioned the [trial court], and was granted permission, to disclose to the public limited information regarding the nature and scope of the grand jury proceedings. The District Attorney did not seek, at that time, the disclosure of any grand jury testimony or exhibits.

The [trial court] permitted disclosure regarding the period of time during which the grand jury sat, the number and types of witnesses who testified, and the number and types of exhibits admitted into evidence. The [trial court] also disclosed the relevant principles of law on which the grand jurors were instructed, and that the grand jury, in conformity with CPL 190.60 and 190.75, voted to file its findings of dismissal. Rather than quelling public debate about the grand jury proceedings, the limited disclosure instead engendered a call for full disclosure of the minutes of the grand jury’s proceedings, and the exhibits and instructions provided to the grand jury.

These appeals involve the subsequent petitions filed by Letitia James, as Public Advocate for the City of New York (hereinafter the Public Advocate), the Legal Aid Society, the New York Civil Liberties Union, and [branches of the NAACP], … to unseal and release the grand jury minutes to themselves and to the general public, including transcripts of testimony, exhibits, information about certain grand jurors, and legal instructions. Each of these petitioners seeks disclosure for the purpose of understanding the grand jury’s decision to not return an indictment, promoting transparency in the grand jury process, restoring confidence in the criminal justice system, and engaging in meaningful discussions about reform of the grand jury process and police practices. Certain petitioners proposed limiting the scope of the materials disclosed to the public and redacting any names of, and identifying information about, the witnesses and grand jurors… .

“[T]he primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution.” “Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding.” … So strong are the principles of grand jury secrecy and the policies underlying it that unauthorized disclosure of grand jury evidence is a felony in New York. While “secrecy of grand jury minutes is not absolute,” “a presumption of confidentiality attaches to the record of Grand Jury proceedings.”

The legal standard that must initially be applied to petitions seeking the disclosure of grand jury materials is whether the party seeking disclosure can establish a “compelling and particularized need” for access to them. Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure… .

A party seeking disclosure will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding “to advance the actions or measures taken, or proposed (e.g. legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served.” …

Despite the intense public interest in this case, which this Court recognizes, the [trial court] properly determined that the appellants’ reasons do not constitute a compelling and particularized need for disclosure of the requested grand jury material.

While many of the foregoing decisional authorities could be discussed in detail as controlling precedent, the Matter of Hynes case merits particular note. Matter of Hynes arose out of a well-publicized and highly charged incident in 1991 in Crown Heights, Brooklyn, when a vehicle struck and killed a seven-year-old child. A grand jury declined to indict the driver for any crime, which added considerably to community unrest over the incident. The District Attorney of Kings County sought to release the grand jury’s minutes and records to quell the unrest, and to restore confidence in the grand jury system generally and in his office specifically.

This Court upheld the [trial court]’s denial of the requested disclosure, finding that curbing community unrest and restoring faith in courts and prosecutors did not represent a compelling and particularized need, as is necessary to overcome the presumption of confidentially attached to grand jury proceedings. The similarities between the circumstances of Matter of Hynes and those presented here are striking. Although the target of the grand jury proceedings in Matter of Hynes was a civilian, and the targets here are public servants, we find that distinction to be without a difference to the resolution of this case.

In addition, the appellants have failed to demonstrate that relevant information cannot be obtained from sources other than the grand jury minutes to permit lawmakers to fashion legislation, if appropriate, concerning reform of the grand jury process and police practices. These sources may include, but are not necessarily limited to, reports and records of news media, and the City’s Department of Investigation, Civilian Complaint Review Board, Police Department, and Law Department.

The appellants’ argument that there is a compelling and particularized need for disclosing the grand jury materials in order to help shape legislative debate at the State Capitol for potential grand jury reform is unpersuasive. The appellants failed to establish how or in what manner these grand jury materials would inform legislative debate beyond the facts that are already publicly known of the case, and beyond reform proposals that are already being discussed on their own merits.

The [trial court] also properly determined that the Legal Aid Society failed to demonstrate a compelling and particularized need for access to the grand jury minutes for the purpose of ensuring better representation of its current and future clients. The Legal Aid Society did not indicate with any degree of specificity how the minutes or exhibits in this isolated case are necessary to that effort.

Moreover, contrary to the appellants’ contentions, the instructions given to the grand jury are entitled to a presumption of confidentiality, since CPL 190.25(4) affords protection to all “matter attending a grand jury proceeding” including records that were not even entered into evidence before the grand jury. Similarly, there is no support for the conclusory contention of the Legal Aid Society and the N.A.A.C.P. petitioners that noncivilian witnesses, namely, police officers and emergency medical technicians, have no expectation of privacy in their grand jury testimony, or that they are not entitled to the same legal protections as civilian witnesses. Accordingly, the appellants failed to show a compelling and particularized need for disclosure.

Although the appellants failed to make the requisite initial showing, because of the importance of this matter, this Court will reach the issue of whether “the public’s right to know overrides such factors as the chilling effect disclosure might have on future Grand Jury investigations of this nature.” The [trial court] properly determined that the public interest in disclosure was outweighed by the dangers inherent in violating the secrecy of the grand jury proceeding.

The most frequently mentioned purposes or rationales for preserving grand jury secrecy include: “(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely.”

It is true that most of [these] factors … are not implicated here in light of the fact that the grand jury declined to return an indictment, and that the identities of the target, as well as of certain witnesses who testified before the grand jury, are already publicly known. However, ensuring the independence of the grand jury, preventing the very real or potential danger that disclosure might present to the physical safety of the grand jurors and witnesses, and protecting them from public scrutiny and criticism, all militate in favor of maintaining grand jury secrecy.

Indeed, if pre-indictment proceedings were made public, especially in high profile cases such as this, “[f]ear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties.” We note that in this particular instance, there is reportedly an ongoing federal investigation into the circumstances of the death of Eric Garner, and the disclosure of grand jury minutes here could negatively interfere with the investigative efforts of the United States Department of Justice and the willingness of witnesses to cooperate with those efforts.

Although the appellants suggest that redacting certain information will cure the impact of disclosure on the grand jury witnesses and jurors by narrowing the scope of certain materials disclosed to the public, under the circumstances of this case, redactions would not serve the purpose of preserving the witnesses’ anonymity and thereby protect them from public criticism and scrutiny. Indeed, the earlier widespread dissemination of two videos capturing the incident would facilitate efforts by the media and the public to identify the source of any testimony disclosed… .


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Is credit card skimming a Fourth Amendment search?

In United States v. Bah, decided July 24th, the U.S. Court of Appeals for the Sixth Circuit handed down the first circuit ruling on whether skimming a credit card — swiping the card through a magnetic reader to find out the number and name stored inside — is a Fourth Amendment search. The court ruled that the answer is “no.” I think that’s wrong, and that the answer should be “yes.”

First, some context. Every credit card, debit card, or gift card has a magnetic stripe on the back of the card. When you use a card at a store, you often swipe the card through a card reader. The card reader picks up the data stored in the magnetic stripe.

The magnetic stripe — often called a “magstripe” — ordinarily stores most of the same information that is printed on the front of the card. With a credit card, for example, the magstripe ordinarily stores the account number, bank identification number, the card expiration date, the three digit “CSC” code, and the cardholder’s first and last name. Technically, the magstripe can store more information: It can be used to store up to 79 letters and 147 numbers. But usually it just contains the information on the card front with a few more numbers.

Unlike the front of the card, however, the information stored inside the magstripe can be reprogrammed. And that’s important in a lot of credit card fraud cases. If a hacker steals credit card information and sells the stolen card data to someone else, the buyer of the stolen data won’t have the physical card. However, the buyer can take an old credit card and reencode the old card with the information from the stolen credit card number. The buyer can then use the old credit card as if it were the stolen card. It works well as long as the store clerk doesn’t check the front of the card to see if the information there matches the data read from the magstripe.

In Bah, the police came across a stash of credit cards in a rental car that they had stopped and impounded. The police suspected that the cards might be fraudulent, so they swiped the cards through a card reader to see if they were encoded with stolen credit card data. The card reader showed that the cards contained information from stolen accounts and did not match the information on the card fronts.

The Sixth Circuit held per Judge Rogers (joined by Judge McKeague and District Judge Sargus) that skimming the credit cards was not a Fourth Amendment search. First, it was not a physical intrusion or trespass into the card under United States v. Jones because it did not physically penetrate into the card. Second, it was not a search under the “reasonable expectation of privacy” framework of Katz v. United States:

Because the information on the magnetic strips, with the possible exception of a “few other additional, unique identifiers,” mirrors that information provided on the front and back of a physical credit, debit or gift card, and the magnetic strips are routinely read by private parties at gas stations, restaurants, and grocery stores to accelerate financial transactions, such an expectation of privacy is not one that society is prepared to consider reasonable… .

Every court to have addressed this question has reached the same conclusion. Some courts have stressed that there can be no reasonable expectation of privacy in an account number—and consequently, magnetic strip—that is routinely shared with cashiers every time the card is used. For instance, in United States v. Medina, No. 09-20717-CR, 2009 WL 3669636 (S.D. Fla. Oct. 24, 2009) (rev’d on other grounds), the court emphasized that “the credit card holder voluntarily turns over his credit card number every time he uses the card,” and then found that there is “no expectation of privacy in that number.” Id. at *11. The court in United States v. Briere de L’Isle, No. 4:14-CR-3089, 2014 U.S. Dist. LEXIS 151078 (D. Neb. Oct. 24, 2014), likewise suggested that “[s]ociety is not prepared to accept as legitimate an asserted privacy interest in information that any member of the public may see.” Id. at *7

Other courts have emphasized the fact that the scan of the magnetic strip reveals little—to potentially nothing—that cannot be viewed on the front and back of the physical card; consequently, these courts have reasoned that once law enforcement personnel have lawful, physical possession of the card, the scan does not constitute a separate “search.” …

Finally, other courts focus on the fact that a scan of the magnetic strip will usually only disclose the presence or absence of activity that is not legal. The reasonable-expectation-of-privacy test in concept “presupposes an innocent person,” Florida v. Bostick, 501 U.S. 429, 438 (1991), and “government conduct that only reveals the possession of contraband compromises no legitimate privacy interests.” Briere de L’Isle, 2014 U.S. Dist. LEXIS 151078, at *9 (citing Caballes, 543 U.S. at 408−09).

The Alabi court thus reasoned: “Similar to a drug sniff alerting the handler only to the presence of narcotics— information about illegal activity—scanning credit and debit cards to read the information contained on the magnetic strips, when law enforcement already has physical possession of the cards, will disclose “only the presence or absence of” illegal information: either the information disclosed is the same information on the outside of the credit and debit cards, or is information about a different account, used to commit credit card fraud… . Such a limited investigatory technique to quickly and obviously provide information whether the payment form is being used criminally … does not violate the Defendant’s right to be secure in their person, house, papers, or effects.” 943 F. Supp. 2d at 1271, 1273.

I disagree. In my view, skimming a credit card is a search. It is a classic kind of Fourth Amendment search, retrieving information stored inside a storage device. True, the information stored in the magstripe often matches the information on the outside the card. But I don’t see how that is relevant. The point of accessing the stored information is to identify when it does not match the outside. Agents don’t know what information is inside. They’re searching the card to find out.

The fact that the data stored inside the card is pretty limited — usually just a few numbers and a name, up to 79 letters and 147 numbers — is likewise irrelevant. Consider a very similar case, Arizona v. Hicks, 480 U.S. 321, 325 (1987), in which agents came across a very expensive turntable in a shabby apartment. Agents lifted the turntable to read the serial number in an effort to determine if the turntable was stolen. According to the Court, moving the turntable to see the serial number was a Fourth Amendment search:

[T]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy … . It matters not that the search uncovered nothing of any great personal value to respondent — serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.

That same principle applies here, I think.

It also doesn’t make a difference that the information in the magstripe may sometimes be exposed to others. Sure, if you go to a store and use a credit card, you lose Fourth Amendment rights in the number you have disclosed to the store. But when a card is not in use, the fact that the information might have in the past been disclosed — or might in the future be disclosed — does not eliminate Fourth Amendment protection. If I’m working on a blog post from my laptop at home, the fact that I plan to publish the post eventually doesn’t give the police a right to hack in to my laptop and read the post before I do. They can read it when I post it but not before.

Finally, the Sixth Circuit’s reliance on the dog sniffing case, Illinois v. Caballes, doesn’t work either. Caballes reasoned that a dog sniff from a public place does not violate the Fourth Amendment because it could only reveal the mere presence of contraband (a fact not deserving of Fourth Amendment protection) or the absence of contraband (not a very revealing fact). Here, in contrast, skimming reveals non-contraband data that could be anything. The magstripe is just a small electronic storage device that can be programmed, within its technical parameters, to contain any information the encoder wants it to contain.

Consider the entry in the card for a name. The name entry in the card can contain up to 26 letters. That entry might be the name associated with a stolen credit card. But it also might be a text entry, such as THEGUNISINTHETRUNK, IKILLEDJFKFROMGRASSYKNOLL, or MYEMAILPASSWORDISWAPOROCKS. And that’s just the name entry. The card as a whole contains three data strips which can hold 79 letters and 147 numbers. It may only be a Tweet or two of information, but it’s still information that could say anything. The police can’t know until they skim the card, and that means Caballes can’t apply.


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