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Orrick defends decisions in clash over planned parenthood videos

Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco. Photo S. Todd Rogers 12/03/2013 063-2013
Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco.
Photo S. Todd Rogers

By Ross Todd, From The Recorder

SAN FRANCISCO — A federal judge is defending his handling of a clash between abortion-rights advocates and opponents over the hidden-camera videos that ignited a firestorm around Planned Parenthood.

In an unusual filing with the U.S. Court of Appeals for the Ninth Circuit, U.S. District Judge William Orrick III said he was justified in blocking an anti-abortion group from releasing videos or other information it gained by infiltrating the annual conference of the National Abortion Federation.

“I am very aware of the First Amendment issues that are potentially at stake in this case and the dangers of orders that threaten prior restraint,” Orrick wrote in a six-page brief filed Friday.

Orrick told the Ninth Circuit that the Center for Medical Progress, the self-described citizen journalist group that released the videos, had been unwilling to disclose the nature of the information its representatives took from the conference.

“I am in the dark whether any of this information is of public interest. … ” wrote Orrick, a judge in the Norther District of California. “What I know for sure is that the defendants signed a nondisclosure agreement and want to disclose information likely gained by false pretenses.”

Lawyers for the National Abortion Federation at Morrison & Foerster sued the Center for Medical Progress and two individual defendants in the weeks after the videos were released. National Abortion Federation v. The Center for Medical Progress, 15-3522, accused the abortion opponents of conspiring to infiltrate the abortion providers’ conference by using fake IDs and hidden cameras to secretly film Planned Parenthood executives discussing providing fetal tissue to medical researchers.

Orrick issued a temporary restraining order that bars release of video or audio recordings taken at National Abortion Federation conferences, confidential information learned at those conferences, dates and locations of future conferences or contact information of members.

On Sept. 14, the Center for Medical Progress challenged Orrick’s early handling of the case in an emergency petition for writ of mandamus from the Ninth Circuit. The group’s lawyers claim that the videos are “unquestionably” protected speech and contend that Orrick inappropriately forged ahead with the lawsuit while their client had a motion pending under California’s anti-SLAPP statute.

Ninth Circuit Judges Stephen Reinhardt, A. Wallace Tashima and Johnnie Rawlinson last week granted a partial stay of discovery in the case as they give full consideration to the issues presented.

In their response to the mandamus petition, the MoFo lawyers point out that Orrick found the defendant’s anti-SLAPP motion “riddled with factual determinations that must be resolved” before he could rule on it. The discovery-limiting provisions of California’s anti-SLAPP rules are outweighed by the rules of federal practice allowing discovery where factual questions arise within motions, they wrote.

Orrick had noted that members of the National Abortion Federation could face violent reprisals from anti-abortion extremists as a result of future disclosures.

In his brief to the Ninth Circuit, Orrick maintained that the defendants waived their First Amendment rights by signing the nondisclosure agreement and a confidentiality agreement to gain access to the conferences. He also wrote that he has no way of knowing whether any of the information the group hopes to disclose would be protected under the First Amendment without first seeing it.

“I am concerned that NAF’s interests in this case would be seriously undermined if I allowed the defendants to publish information when they admittedly signed a confidentiality agreement that waived their rights to do so, and when they refuse to tell the court what information they have,” Orrick wrote.

In a footnote, Orrick wrote that, if the panel were to decide that his temporary restraining order violated the First Amendment, he “would appreciate guidance on whether there a material distinction between the confidentiality agreements here and the protective orders routinely entered in the Northern District of California on commercial matters to protect information that one party or another thinks is confidential … or in criminal matters where the government seeks to conceal the identity of witnesses for security reasons.”

Ben Feuer of the California Appellate Law Group said it’s a striking argument in a brief that will likely “get a lot of credence” from the Ninth Circuit.

“The underlying point is, of course, the First Amendment and the general ban on prior restraint is far from absolute,” he wrote in an email.

IMAGE: U.S. District Judge William Orrick III, Northern District of California

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