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Abortion Foes Take Flap Over Secret Videos to 9th Circuit

SAN FRANCISCO (CN) - Hearing a challenge to an injunction that blocks anti-abortion activists from publishing secretly taped videos, three Ninth Circuit judges sought to discern when the right to report on matters of public interest trumps the need to enforce confidentiality agreements.

In February, U.S. District Judge William Orrick III issued a preliminary injunction barring David Daleiden and his group, the Center for Medical Progress, from disclosing secretly recorded audio and video files from the National Abortion Federation's annual meeting.

The federation, an abortion providers' trade group, sued Daleiden and the center in July 2015 for posing as a fake biomedical firm to infiltrate and record its meetings in violation of signed secrecy agreements.

After reviewing hundreds of hours of recordings, Orrick said he found no evidence that abortion providers made illegal agreements to sell fetal tissue for profit, despite a targeted effort to elicit such responses.

The judge also found disclosing the identities of abortion providers could put those doctors at risk, especially after a gunman calling himself a "warrior for the babies" killed three people at a Planned Parenthood clinic in Colorado Springs this past November.

During a Ninth Circuit hearing on Tuesday, Daleiden's attorney Catherine Short argued that Orrick improperly placed a prior restraint on free speech and prevented the disclosure of information "of significant public concern."

The federation's attorney, Marc Hearron, countered that Daleiden and his associates waived their First Amendment rights when they signed contracts vowing to keep all information from the meeting confidential.

"Our right to privacy, security and safety of our members would be threatened," Hearron said. "Three people in Colorado were murdered, and partially as result of the videos released last year."

Hearron said his client has a First Amendment right to exclude the public from its private meetings so that abortion providers have a safe place to advance their education and engage in honest and frank discussions about issues facing the industry.

Circuit Judges Andrew Hurwitz and Consuelo Callahan posed a series of hypotheticals to determine at what point a confidentiality agreement is superseded by the need to inform the public or report possible crimes to law enforcement.

"What if they said at their meetings, 'We kill all women,'" Hurwitz asked. "What are the limits of your ability to restrict someone from reporting something that might be a crime?"

Hearron said the confidentiality agreement does not prohibit anyone from reporting crimes to the police, adding that Orrick reviewed the recordings and found no evidence that a crime was committed.

Representing the Arizona Attorney General's Office, Brunn Roysden also argued against Orrick's ruling, which requires the center to inform the federation of subpoenas seeking the enjoined materials so it can challenge those subpoenas in state court.

Roysden cited the 1984 Supreme Court ruling in SEC v. O'Brien, which held the Securities and Exchange Commission has no duty to notify the targets of investigations when issuing subpoenas to third parties.

When Roysden refused to promise his office would keep the materials confidential, Hurwitz called it "a giant loophole" that would let activists circumvent the court's order by finding "a few friendly state attorneys general."

Callahan appeared more skeptical of the position that confidentiality agreements could block third parties from sharing information with authorities.

"I'm very concerned you seem to think I can't go to the police," Callahan said.

Hearron repeated that the confidentiality agreements do not prevent people from reporting crimes, and that Orrick reviewed the recordings and found no evidence that a crime was committed.

"What authority do you have that just because a judge says, 'I don't think there's evidence of criminal activity,' that someone can't say 'I think there is a crime, and I want to tell the police,'" Callahan asked.

Hearron replied that the judge's order does not prevent Daleiden's group from turning over relevant information that is responsive to a court-ordered subpoena.

Given the last word, Short argued the public's right to know supersedes the need to enforce confidentiality contracts with injunctions that restrict free speech.

Hurwitz sought to understand at what point an issue becomes so important that it overrides a party's duty to fulfill one's obligations under a signed agreement.

"What's our measuring stick," Hurwitz asked. "How much public interest gets you out of your contractual obligations? Is it a little public interest, a lot of public interest?"

Short replied that aside from two exceptions for protecting classified and trade secret information, no court has enforced a confidentiality agreement to prevent the disclosure of information on matters of public interest.

Visiting U.S. District Judge Donald Molloy of Montana, who also sat on the panel, maintained a Clarence Thomas-like posture and remained silent throughout the hearing.

After about 30 minutes of debate, the panel excluded the public from the courtroom to discuss court-sealed materials before ending the hearing.

In July, Daleiden told Courthouse News he was ready to go on the "offensive" against Planned Parenthood after a district attorney in Texas dismissed felony charges against him for tampering with governmental records to gain access to a Planned Parenthood center in Texas.

Last month, Orrick denied the Center for Medical Progress' motion to dismiss a separate lawsuit brought by Planned Parenthood in San Francisco.

That suit claims the center cost the nation's largest abortion provider millions of dollars by orchestrating a "smear campaign" with doctored videos to falsely accuse it of selling aborted fetal tissue for profit.

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