685 F. App'x 623
9th Cir.2017Background
- NAF is an association of abortion providers that holds private annual meetings; attendees must sign confidentiality agreements before accessing materials and meeting areas.
- Daleiden and other anti‑abortion activists posed as representatives of a fictitious company (BioMax), signed NAF confidentiality/Exhibit Agreements, and secretly recorded hundreds of hours of 2014–2015 meetings in violation of those contracts.
- Defendants publicly released some recordings; after release, harassment and violence against providers increased, including an armed attack causing deaths.
- The district court issued a preliminary injunction enjoining defendants from publishing or disclosing recordings, confidential information from NAF meetings, meeting dates/locations, and member identities, except pursuant to subpoena with notice to NAF under a protective order.
- The Ninth Circuit affirmed, finding no abuse of discretion: defendants waived First Amendment rights by contract, recordings did not show criminal wrongdoing, and the injunction balanced NAF and law‑enforcement interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether enforcing confidentiality agreements by preliminary injunction is an unconstitutional prior restraint | NAF: Agreements are enforceable; defendants waived disclosure rights; injunction protects privacy and safety | Defendants: Recordings are matters of public concern; injunction is an unconstitutional prior restraint | Held: Affirmed. Defendants waived First Amendment rights by knowingly signing agreements; injunction not an abuse of discretion |
| Whether fraudulently obtained information can be disclosed in public interest | NAF: Fraud and promise to keep confidentiality preclude using public‑interest defense | Defendants: Public‑interest reporting justifies breach | Held: Fraudulent procurement does not permit public disclosure; balancing favors enforcing agreements |
| Whether recordings showed criminal activity (thus releasing defendants from obligations) | NAF: Recordings contain no evidence of crimes; contracts remain binding | Defendants: Discovery of illegal conduct would excuse compliance and permit disclosure | Held: District court’s factual finding (no criminal wrongdoing) supported; defendants not excused |
| Whether injunction may bar disclosure to law enforcement and require NAF notice of subpoenas | NAF: Notice provision and subpoena process are consistent with preservation and law enforcement access | Defendants (and concurrence): Public policy and O’Brien allow voluntary reporting to law enforcement; notice requirement may impede investigations | Held: Majority upheld injunction and notice requirement—does not prevent law enforcement from obtaining materials via subpoena; concurrence would have allowed disclosure to law enforcement without NAF notice |
Key Cases Cited
- 786 F.3d 733 (9th Cir. 2015) (standard of review for preliminary injunctions and abuse‑of‑discretion review)
- 670 F.3d 1096 (9th Cir. 2012) (standards for reviewing factfinding and injunctions)
- 12 F.3d 885 (9th Cir. 1993) (waiver of First Amendment rights by contractual agreement)
- 449 F.2d 245 (9th Cir. 1971) (limits on First Amendment as defense to trespass/secret intrusion)
- 467 U.S. 735 (U.S. 1984) (communications to third parties and disclosure to law enforcement)
- 338 U.S. 632 (U.S. 1950) (governmental investigatory authority and fact‑gathering)