Respondents Brief — Troy Newman, Petitioner v. National Abortion Federation, et al.

Nos. 17-202, 17-482

================================================================

In The

Supreme Court of the United States

------------------------------------------------------------------

DAVID DALEIDEN, CENTER FOR MEDICAL

PROGRESS, AND BIOMAX PROCUREMENT

SERVICES, LLC, PETITIONERS

v.

NATIONAL ABORTION FEDERATION.

------------------------------------------------------------------

TROY NEWMAN, PETITIONER

v.

NATIONAL ABORTION FEDERATION.

-----------------------------------------------------------------ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

------------------------------------------------------------------

BRIEF IN OPPOSITION

-----------------------------------------------------------------DEREK F. FORAN

CHRISTOPHER L. ROBINSON

NICHOLAS ROETHLISBERGER

MORRISON & FOERSTER LLP

425 Market St.

San Francisco, CA 94105

MARC A. HEARRON

Counsel of Record

SOPHIA M. BRILL

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 778-1663

MHearron@mofo.com

Counsel for Respondent

FEBRUARY 26, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

In granting respondent’s motion for a preliminary

injunction, the district court made extensive factual

findings, including that: (1) petitioners engaged in

repeated instances of fraud in creating a fake company, making false statements, and entering into

contractual obligations they had no intent to honor;

(2) petitioners did so to infiltrate respondent’s annual meetings, which are closed to the public to protect respondent’s members’ safety and security;

(3) petitioners waived their First Amendment rights

by knowingly and voluntarily entering into contractual obligations restricting their speech rights;

(4) petitioners breached those contractual obligations

by secretly recording respondent’s meetings and obtaining confidential information from the meetings;

(5) despite their professed goal of uncovering criminal wrongdoing by abortion providers, petitioners obtained no evidence of any wrongdoing; and

(6) disclosing the recordings and other materials

would irreparably harm respondent’s constitutional

rights to associate in privacy and would likely lead to

harassment, threats, and violence against respondent and its members.

The question presented is:

Whether the district court properly exercised its

discretion by preliminarily enjoining petitioners from

disclosing the materials that petitioners recorded or

obtained at respondent’s private annual meetings.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent National Abortion Federation is a notfor-profit corporation organized under the General

Not For Profit Corporation Law of the State of

Missouri. It does not have any parent corporation,

and no publicly held entity owns ten percent or more

of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

CORPORATE DISCLOSURE STATEMENT ........... ii

STATEMENT ............................................................. 1

A. Factual Background ........................................ 1

1. NAF and its closed-to-the-public

annual meetings ......................................... 1

2. Petitioners’ waiver of their speech

rights in order to gain entry to NAF’s

private annual meetings ............................ 3

3. Petitioners’ secret recordings of NAF’s

private annual meetings, in breach of

their contractual obligations...................... 5

4. Petitioners’ release of surreptitiously

recorded videos ........................................... 6

5. The ensuing harassment, threats, and

murders following petitioners’ release

of their videos ............................................. 7

B. Proceedings Below ........................................... 8

1. Proceedings in the district court ................ 8

2. Proceedings in the court of appeals ......... 14

3. Ongoing proceedings in the district

court and court of appeals........................ 16

REASONS THE PETITIONS SHOULD BE

DENIED .............................................................. 17

iv

TABLE OF CONTENTS—Continued

Page

I. REVIEW OF THE FIRST AMENDMENTBASED QUESTION PRESENTED IN THE

DALEIDEN PETITION IS UNWARRANTED .. 18

A. Petitioners Do Not Have A First

Amendment Right To Commit Fraud And

Breach Of Contract ........................................ 18

B. The Daleiden Petitioners Have No

Coherent Legal Rule And Ultimately Are

Seeking Error Correction .............................. 20

C. The Decision Below Does Not Conflict

With That Of Any Other Court Of Appeals .. 26

II. REVIEW OF THE PUBLIC-POLICY-BASED

QUESTION PRESENTED IN NEWMAN’S

PETITION IS UNWARRANTED ....................... 29

A. The Public-Policy Question Here Is Not A

Federal Question ........................................... 29

B. The Decision Below Does Not Conflict

With Decisions Of Any Other Circuits ......... 32

C. The Decision Below Does Not Conflict

With This Court’s Decisions .......................... 34

D. This Case Would Be A Poor Vehicle To

Decide The Public-Policy Question ............... 35

III. THE COURT OF APPEALS CORRECTLY

REVIEWED THE PRELIMINARY

INJUNCTION FOR ABUSE OF

DISCRETION ..................................................... 36

CONCLUSION ......................................................... 39

v

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Am. Civil Liberties Union, 542 U.S.

656 (2004) ............................................................. 37

Bowman v. Parma Bd. of Educ., 542 N.E.2d 663

(Ohio Ct. App. 1988) ............................................ 31

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ....... 22

Branzburg v. Hayes, 408 U.S. 665 (1972) ................ 19

Brown v. Chote, 411 U.S. 452 (1973) ........................ 14

Brown v. Socialist Workers ’74 Campaign Cmte.

(Ohio), 459 U.S. 87 (1982).................................... 22

CBS, Inc. v. Davis, 510 U.S. 1315 (1994) ................. 35

Cohen v. Cowles Media Co., 501 U.S. 663

(1991) .............................................................. 19, 20

Cosby v. Am. Media, Inc., 197 F. Supp. 3d 735

(E.D. Pa. 2016) ..................................................... 31

Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.

1963) ..................................................................... 27

DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) .. 29

Doe v. Maywood Hous. Auth., 71 F.3d 1294 (7th

Cir. 1995) .............................................................. 23

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ......... 37

EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir.

1996) ............................................................... 31, 33

Fomby-Denson v. Dep’t of Army, 247 F.3d 1366

(Fed. Cir. 2001) .............................................. 31, 33

vi

TABLE OF AUTHORITIES—Continued

Page

Freedman v. Maryland, 380 U.S. 51 (1965) ............. 20

Hurd v. Hodge, 334 U.S. 24 (1948) ........................... 31

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Boston, Inc., 515 U.S. 557

(1995) ........................................................ 22, 37, 38

Lachman v. Sperry-Sun Well Surveying Co., 457

F.2d 850 (10th Cir. 1972) ..................................... 30

Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) ... 24, 25

McCreary Cty., Ky. v. Am. Civil Liberties Union

of Ky., 545 U.S. 844 (2005) .................................. 37

NAACP v. Alabama, 357 U.S. 449 (1958) ................ 23

NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982) .................................................................... 37

New York Times v. United States, 403 U.S. 713

(1971) .................................................................... 35

Old Dominion Branch No. 496 v. Austin, 418

U.S. 264 (1974) ............................................... 37, 38

Perricone v. Perricone, 292 Conn. 187 (2009) .......... 20

Phillips ex rel. Estates of Byrd v. Gen. Motors

Corp., 307 F.3d 1206 (9th Cir. 2002) ................... 23

Public Citizen v. Liggett Grp., Inc., 858 F.2d 775

(1st Cir. 1988)....................................................... 23

Seattle Times Co. v. Rinehart, 467 U.S. 20 (1984) .. 21

SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984) .. 34

United States v. Marchetti, 466 F.2d 1309 (4th

Cir. 1972) .................................................. 27, 28, 29

vii

TABLE OF AUTHORITIES—Continued

Page

Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305 (1985) .............................................. 37

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7

(2008) .................................................................... 26

STATUTES

42 U.S.C. § 289g-2(a) ................................................. 10

42 U.S.C. § 289g-2(e)(3)............................................. 10

California Penal Code § 632(a) ........................... 16, 23

Partial Birth Abortion Act, 18 U.S.C. § 1531 ........... 11

OTHER AUTHORITIES

Fed. R. Civ. P. 26(c)(1)............................................... 21

Restatement (Second) of the Law of Contracts

§ 178(1) (1981) ................................................ 24, 29

S. Ct. R. 10 ........................................................... 25, 34

STATEMENT

A. Factual Background

1. NAF and its closed-to-the-public annual

meetings

Respondent National Abortion Federation (“NAF”)

is a private, not-for-profit professional association of

abortion providers. App. 38a. 1 NAF’s members include individuals, private and non-profit clinics,

Planned Parenthood affiliates, women’s health centers, physicians’ offices, and hospitals. Ibid. NAF’s

mission is to ensure safe, legal, and accessible abortion care, which promotes health and justice for

women. App. 2a. To that end, NAF sets the standards for quality abortion care and educates abortion

providers and medical professionals. App. 38a.

Since 1977, NAF has hosted annual meetings

where it provides essential accredited continuing

medical education and training related to abortion

care. NAF’s annual meetings are one of the only remaining places where abortion providers can meet to

learn about the latest medical research and network

with other professionals. CA ER219, SER248-66.

NAF also assists its members in preventing and

dealing with harassment, intimidation, and violence

against abortion providers. NAF has documented

more than 60,000 such incidents in the last 30 years,

including murders, shootings, arsons, bombings,

chemical and acid attacks, bioterrorism threats, kid1 All citations to “App.” are to the petition appendix in

No. 17-202.

2

nappings, and death threats. App. 38a-39a. NAF’s

own office was bombed in 1984, along with several

member clinics. CA ER218. NAF assists its members by tracking security threats and providing technical assistance, onsite security training, and

security assessments at its members’ facilities and

homes, as well as around-the-clock emergency support. App. 38a.

Understandably, many NAF members strive to

preserve their privacy and identity. CA ER220-21.

Some member clinics have security protocols to protect the identities of their staff, such as driving a different way to the clinic each day, not wearing scrubs

when entering the building, or wearing disguises or

bulletproof vests. Ibid. Other providers try to remain under the radar and do not speak publicly

about their work out of fear for their own safety and

that of their families. Ibid.; CA SER192-94.

NAF has therefore adopted extensive security

measures to ensure the safety and security of its annual meetings. Each year, NAF’s full-time security

staff helps select a venue that meets strict guidelines. Security staff meet with hotel staff, local

police officials, FBI and/or ATF agents, and fire-andrescue personnel to review security issues and

potential threats. Security officers stand posted at

strategic locations throughout the meeting areas.

Bomb-sniffing dogs patrol the venue. Attendees and

staff must wear security badges to enter meeting

spaces and are advised to remove them when

leaving. CA ER219-21, SER1100-02.

After an activist group offered bounties to infiltrate NAF’s meetings in the 1990s, NAF began

3

requiring all attendees and exhibitors to sign

confidentiality agreements before gaining entry to its

meetings. CA ER220. Adherence to the confidentiality agreements is critical for NAF as a private

organization.

App. 63a-64a.

NAF’s mission of

providing medical and ethical guidance to its members—and thereby advancing public safety—would

be substantially undermined if NAF could not hold

private meetings without concern that they would be

infiltrated, videotaped, and displayed to activists

who are diametrically opposed to NAF’s mission.

2. Petitioners’ waiver of their speech rights in

order to gain entry to NAF’s private annual

meetings

Petitioner David Daleiden founded the Center for

Medical Progress (“CMP”) in 2013. CMP is incorporated as a California nonprofit, public-benefit corporation and is tax exempt. App. 15a-17a.

Petitioner Troy Newman was, until January 2016,

a board member and the secretary of CMP and a key

advisor of Daleiden’s. App. 17a. Newman is also the

president of Operation Rescue, an anti-abortion

group that lists on its websites the names and addresses of all known U.S. abortion providers and

abortion facilities. App. 18a. Newman has written

that it is the “responsibility” of the United States to

“execut[e] * * * abortionists[] for their crimes in order

to expunge bloodguilt from the land and people.” CA

SER758.

To infiltrate NAF’s 2014 private annual meeting,

Daleiden set up a fake front company called “BioMax

Procurement Services,” which supposedly supplied

researchers with human biological specimens.

4

App. 17a. Daleiden—posing as BioMax employee

“Brianna Allen,” “assistant” to fake BioMax CEO

“Susan Tennenbaum”—then sent NAF emails inquiring about exhibitor space at NAF’s 2014 meeting.

App. 19a. NAF’s staff provided “Allen” an exhibitor

application packet, including an Exhibitor Agreement. Ibid.

Daleiden filled out the exhibitor application for

the fake company BioMax and signed the Exhibitor

Agreement

with

the

fake

name

“Susan

Tennenbaum.”

Ibid.

In signing the Exhibitor

Agreement, Daleiden expressly agreed that all written, oral, or visual information disclosed at the

meetings “is confidential and should not be disclosed

to any other individual or third parties.” App. 3a,

20a. Daleiden also fraudulently represented that all

information contained in BioMax’s application and

other correspondence with NAF was “truthful, accurate, complete, and not misleading.” App. 3a n.1,

21a. Daleiden additionally agreed “to hold in trust

and confidence any confidential information received

in the course of exhibiting at the NAF Annual

Meeting and agree[d] not to reproduce or disclose

confidential information without express permission

from NAF.” App. 20a-21a (emphasis omitted). Finally, Daleiden expressly agreed that a breach of the

Exhibitor Agreement can be enforced by “specific

performance and injunctive relief” in addition to all

other remedies available at law or equity. App. 21a.

Daleiden came to NAF’s 2014 private meeting

fraudulently posing as “Robert Sarkis,” supposedly

BioMax’s Vice President of Operations. App. 20a n.5,

21a-22a. Daleiden brought two associates who pretended to be Tennenbaum and Allen. App. 21a-22a.

5

To gain entry, Daleiden (as “Sarkis”) and

“Tennenbaum” presented fake California driver’s licenses. App. 21a n.6.

“Sarkis,” “Tennenbaum,” and “Allen” all signed

Confidentiality Agreements—a prerequisite for entry. App. 21a-22a. By signing the Confidentiality

Agreements, they expressly agreed they were “prohibited from making video, audio, photographic, or

other recordings of the meetings or discussions at

this conference.” App. 23a. They agreed not to use

any “information distributed or otherwise made

available at this conference by NAF or any conference participants * * * in any manner inconsistent

with” the purpose of enhancing “the quality and

safety of services provided by” meeting participants.

App. 3a. And they explicitly agreed not to disclose

any such information “to third parties without first

obtaining NAF’s express written consent.” Ibid.

For NAF’s 2015 closed-door meeting, Daleiden

again submitted a fraudulent Exhibitor Agreement

for BioMax. App. 19a-20a. One of Daleiden’s associates—a person posing as “Adrian Lopez”—signed the

Confidentiality Agreement. App. 22a. Daleiden (as

“Sarkis”), “Tennenbaum,” and “Allen” gained entry

by falsely representing to NAF staff that they had

signed Confidentiality Agreements. App. 22a-23a.

3. Petitioners’ secret recordings of NAF’s

private annual meetings, in breach of their

contractual obligations

Despite their contractual obligations, at both of

NAF’s private annual meetings the BioMax agents

wore and carried hidden recording devices in purses,

water bottles, ties, glasses, and shirt buttons.

6

App. 24a. Each day, they turned on their recording

devices before entering the meetings and turned

them off only at the end of the day. Ibid. They taped

their conversations with attendees at the BioMax

exhibitor booths, the meeting sessions they attended,

and their interactions with other attendees. Ibid.

In total, they recorded nearly 504 hours at the

meetings. Ibid. Yet the vast majority of the material

recorded had nothing to do with CMP’s professed interest in fetal-tissue donation. App. 24a-25a.

Contrary to petitioners’ claim that they were acting “in the tradition of countless undercover journalists,” Daleiden Pet. i, their methods diverged

sharply from accepted investigatory-journalism practices. App. 75a-77a & n.44. According to journalism

scholars and experts, petitioners’ actions amounted

to “a breathtaking departure from ethical journalism.” Br. of Amici Curiae Journalism Scholars and

Journalists at 21, CA ECF No. 87.

4. Petitioners’ release

recorded videos

of

surreptitiously

Despite their unsupported claims that the tapes

show evidence of unlawfulness, petitioners did not

immediately provide any of the recordings to law enforcement after either annual meeting. App. 61a.

Instead, petitioners began releasing to the general

public misleadingly edited videos of follow-up meetings with abortion providers that Daleiden secretly

recorded after NAF’s annual conferences. App. 34a.

According to Daleiden, he was able to secure these

follow-up meetings with abortion providers because

of BioMax’s fraudulent exhibition at NAF’s annual

conferences. App. 33a-34a.

7

The videos manipulated dialogue to falsely portray

the abortion providers as “sellers” of fetal tissue.

App. 34a-35a. For example, petitioners edited a

video to make it appear as though one doctor was

discussing selling fetal tissue, but the doctor actually

told Daleiden: “[N]obody should be selling tissue.

That’s just not the goal here.” Ibid.

5. The ensuing harassment, threats, and

murders following petitioners’ release of

their videos

Immediately after the videos’ release, incidents of

harassment, threats, and violence against abortion

providers skyrocketed. App. 39a. The FBI reported

seeing an increase in attacks on reproductive-healthcare facilities. Ibid. Indeed, there have been four incidents of arson at abortion-care facilities since the

videos’ release. Ibid.

Most gravely, the Colorado clinic where one of the

videos’ subjects worked was targeted by a gunman,

resulting in three deaths. App. 39a-40a. Newman’s

organization had posted on its website the surreptitiously recorded videos of this physician alongside a

map and address for her clinic. Ibid.; CA SER196.

NAF has had to significantly boost its security

staff, at increased cost, and NAF members have had

to take steps to ensure their safety and that of their

families. NAF has also had to increase the security

measures for its private annual meetings and has cut

back on its communications with members. App.

40a-41a.

Meanwhile, petitioners have threatened to release

videos from NAF’s private annual meetings.

8

Daleiden told the district court that he is continuing

“the work of curating available raw investigative materials * * * for release of videos to the public.” CA

SER792. Newman stated that “this is just the beginning” and that “at a time of our choosing, we will

release more damning evidence of illegal, ghastly

and repugnant butchery.” CA SER238.

Prompted by the release, nine States opened and

closed investigations into Planned Parenthood,

finding no evidence of wrongdoing. Eleven other

States publicly refused to pursue any investigations

based on petitioners’ false accusations. CA SER32678, 406-08.

B. Proceedings Below

1. Proceedings in the district court

NAF sued petitioners, alleging among other things

that petitioners breached the Exhibitor Agreements

and Confidentiality Agreements. NAF sought, and

the district court issued, a temporary restraining

order enjoining petitioners from publishing recordings and other materials taken at NAF’s private

annual meetings. App. 12a-13a.

The parties engaged in limited discovery, in the

course of which petitioners stipulated to a protective

order in which they agreed to notify NAF if they receive a subpoena, so that NAF would have an opportunity to challenge the subpoena if necessary. App.

6a. Such notice is also required as a term of the Confidentiality Agreements. CA ER127.

NAF moved for a preliminary injunction. In a 42page opinion, the district court carefully considered

9

each of the four factors for injunctive relief and held

that they weigh strongly in NAF’s favor.

(i) Likelihood of success on the merits.

The district court construed the Exhibitor Agreements and Confidentiality Agreements and concluded that “NAF has demonstrated a strong likelihood of success on its breach of contract claims.”

App. 53a. The district court rejected petitioners’ arguments that the agreements were not supported by

consideration and did not prohibit petitioners’ actions. App. 45a-54a.

Having found the contracts breached, the district

court also held them to be enforceable. First, the

court addressed petitioners’ argument that enforcing

the contracts would be an unjustified prior restraint

under the First Amendment. The court found that

Daleiden and his associates knowingly and voluntarily waived their rights to publish the recordings.

App. 56a-58a. As the court observed, “where parties

to a contract agree to restrictions on speech, those

restrictions are generally upheld.” App. 56a. Here,

“Daleiden and his associates chose to attend the NAF

Annual Meetings and voluntarily and knowingly

signed” the contracts. App. 58a (emphasis by district

court). Accordingly, petitioners’ “prior restraint” arguments were misplaced. See also App. 73a-74a n.43

(distinguishing petitioners’ cited “prior restraint” decisions).

Next, the district court weighed the public-policy

interests and held that “enforcement of the confidentiality agreements against defendants is not contrary

to public policy.” App. 64a. Indeed, public policy

“supports NAF’s position.” App. 63a. As the court

10

observed, “NAF members have the right to associate

in privacy and safety to discuss their profession at

the NAF Meetings, and need that privacy and safety

in order to safely practice their profession.” App.

75a. Thus, “in order to fulfill [NAF’s] mission and

allow candid discussions of the challenges its members face—both professional and personal—confidentiality agreements for NAF Meeting attendees are

absolutely necessary.” App. 63a. Moreover, releasing the recordings would be “contrary to California’s

recognition of the dangers faced by providers of abortion, as well as California’s efforts to keep information regarding the same shielded from public disclosure.” App. 64a (citing California statutes).

The district court considered petitioners’ arguments about their asserted interest in disclosing

criminal wrongdoing. But the court concluded that,

on the specific facts of this case, that interest is

weak; having carefully “reviewed the recordings relied on by defendants,” the court found “no evidence

of criminal wrongdoing.” App. 60a. The court found

that in context, “no NAF attendee admitted to engaging in, agreed to engage in, or expressed interest

in engaging in potentially illegal sale of fetal tissue

for profit.” App. 32a. The recordings actually “tend

to show an express rejection of Daleiden’s and his associates’ proposals or, at most, discussions of interest

in being paid to recoup the costs incurred by clinics

to facilitate collection of fetal tissue for scientific research.” App. 32a (emphasis added). Recouping

such costs is lawful. 42 U.S.C. § 289g-2(a), (e)(3)

(permitting “reasonable payments”).

The court also found that the recordings contain

no evidence of violations of any other laws. App. 28a,

11

31a n.13. For example, in context, one of the clips on

which petitioners relied as evidence of a purported

violation of the Partial Birth Abortion Act, 18 U.S.C.

§ 1531, actually discusses “the techniques that [providers] employ to ensure that they do not” violate the

Act. App. 28a (emphasis added).

Additionally, the district court observed that

“while defendants[] repeatedly assert that their primary interest in infiltrating NAF was to uncover

evidence of criminal wrongdoing, and that the NAF

recordings show such wrongdoing, defendants did

not provide any of the NAF recordings to law enforcement following” either of the annual meetings

that they infiltrated. App. 61a. “Instead, defendants

decided it was more important to ‘curate’ and release

the Project videos starting in July 2015,” more than

a year after NAF’s 2014 meeting. Ibid.

(ii) Irreparable harm.

The district court found that absent preliminary

injunctive relief, NAF and its members would suffer

four types of irreparable harm.

First, the court found that releasing the recordings would cause irreparable injury to NAF’s members’ constitutionally protected rights to “freedom of

association (to gather at NAF meetings and share

their confidences).” App. 72a-73a.

Second, the court found it likely that “the NAF attendees shown in [the] recordings would * * * face an

increase in harassment, threats, or incidents of violence.” App. 70a. As the court observed, petitioners’

prior release of recordings “led to a significant increase in harassment, threats, and violence directed

12

not only at the ‘targets’ of CMP’s videos but also at

NAF and its members more generally.” App. 69a.

This violence included three murders at an “attack in

Colorado Springs,” in which “the gunman was apparently motivated by the CMP’s characterization of the

sale of ‘baby parts.’” App. 69a, 72a n.42.

Third, the court found that due to the potential of

violence and of future infiltrations at its meetings,

NAF and its members would “need to take additional

security measures.” App. 71a.

And fourth, the court found that releasing the recordings would result in “reputational harms” to

NAF’s members. Ibid. Uncontroverted evidence established that many of the recordings previously released by CMP were highly edited to be misleading.

App. 70a. Absent an injunction, petitioners were

likely to release edited, misleading recordings again,

thus causing reputational harms. App. 71a.

(iii) Balance of equities.

The district court found that “the balance of equities favors NAF.” App. 73a. Although petitioners

would be unable to release their recordings during

the pendency of the preliminary injunction, “the

hardships suffered by NAF and its members are far

more immediate, significant, and irreparable.” Ibid.

(iv) Public interest.

The court found that the “public interest weighs in

favor of granting the preliminary injunction.” App.

74a. The court explained that NAF’s members have

a constitutional “right to associate in privacy and

safety to discuss their profession at the NAF Meetings” and that they “need that privacy and safety in

13

order to safely practice their profession.” App. 75a.

“[T]he release of the materials will irreparably impinge on those rights.” Ibid.

(v) Scope of the preliminary injunction vis-à-vis

law enforcement.

Finally, the district court carefully tailored the

scope of the preliminary injunction to ensure it

would protect NAF’s rights but would not “hinder the

ability of states or other governmental entities from

conducting investigations.” App. 77a; see App. 67a.

The court made clear that the stipulated protective

order and the preliminary injunction do not bar petitioners “from disclosing materials in response to

subpoenas from law enforcement or other government entities.” Ibid. Instead, those orders “simply

create an orderly procedure,” requiring petitioners to

notify NAF before producing the materials, “so that

NAF may (if necessary) challenge the subpoenas in

the state court at issue.” App. 77a-78a.

The court also explained that any conflict between

enforcing the confidentiality agreements and the interests of law enforcement has not yet actually

arisen. App. 66a (explaining that this question “has

not been placed directly in issue”). Law-enforcement

agencies from only two States—Arizona and Louisiana—have issued subpoenas seeking access to the

materials. App. 67a n.37, 78a. Neither State has

sought “enforcement of their subpoenas in the courts

of their own states.” App. 67a. Instead, “negotiations are ongoing between NAF, defendants, and the

two states” over the scope of the materials to be produced. App. 78a. And petitioners “have repeatedly

stipulated to extend the timeframe for NAF to file a

14

challenge to the state subpoenas in state court” under the district court’s procedures. App. 67a n.37.

Moreover, although Attorneys General of seven

States filed an amicus brief in the district court, they

did “not directly [seek] relief from the confidentiality

agreements, the TRO, or the requested preliminary

injunction by intervening and moving for declaratory

relief.” App. 66a-67a & n.36.

Accordingly, the district court enjoined petitioners

from publishing or disclosing (1) “any video, audio,

photographic, or other recordings taken, or any confidential information learned, at any NAF annual

meetings”; (2) “the dates or locations of any future

NAF meetings”; and (3) “the names or addresses of

any NAF members learned at any NAF annual

meetings.” App. 80a.

2. Proceedings in the court of appeals

The court of appeals affirmed in a nonprecedential memorandum decision. App. 1a-7a.

Reviewing for abuse of discretion, see Brown v.

Chote, 411 U.S. 452, 457 (1973), the court of appeals

explained that the “district court carefully identified

the correct legal standard and its factual determinations were supported by the evidence.” App. 4a.

The court rejected petitioners’ argument that the

preliminary injunction is an unconstitutional prior

restraint, reasoning that “the district court did not

clearly err in finding that the defendants waived any

First Amendment rights to disclose [the] information

publicly by knowingly signing the agreements with

NAF.” App. 5a. Indeed, on appeal, petitioners never

even challenged the district court’s finding that they

waived their First Amendment rights. The court of

15

appeals also explained that the district court did not

“abuse its discretion in concluding that a balancing

of the competing public interests favored preliminary

enforcement of the confidentiality agreements, because one may not obtain information through fraud,

promise to keep that information confidential, and

then breach that promise in the name of the public

interest.” Ibid.

The court of appeals further held that petitioners

are not released from their contractual obligations

because they claim to have obtained evidence of

criminal wrongdoing. The district court “concluded

as a matter of fact that they had not” obtained evidence of criminal wrongdoing, and “[t]hat determination is amply supported by the record.” Ibid.

Finally, the court of appeals rejected the assertion

that the preliminary injunction should not have precluded petitioners from voluntarily producing the

enjoined materials to law enforcement. The court

reasoned: “even assuming the dubious proposition

that the defendants were entitled to root out what

they considered to be illegal activities through fraud

and breach of contract, the district court’s finding

that they uncovered no violations of the law is a sufficient answer to any right claimed by the

defendants.” App. 6a. Additionally, the preliminary

injunction “in no way prevents law enforcement from

conducting lawful investigations” because it does not

preclude compliance with a lawful subpoena. Ibid.

Rather, “the preliminary injunction carefully balances the interests of NAF and law enforcement.”

App. 7a.

16

Judge Callahan concurred in part and dissented in

part. She agreed that petitioners “have generally

failed to carry their burden of showing that the District Court’s grant of a preliminary injunction is an

abuse of discretion.” App. 8a. But she would have

“vacate[d] the preliminary injunction insofar as it

purports to limit Defendants from disclosing the materials to law enforcement agencies and requires that

Defendants notify NAF of any request they receive

for the materials from law enforcement agencies.”

App. 10a-11a.

3. Ongoing proceedings in the district court

and court of appeals

Proceedings in the district court are stayed pending appeal, including disposition of petitioners’ certiorari petitions.

After the court of appeals’ ruling, Daleiden and

one of his associates were charged with fifteen felony

counts for recording confidential communications

without the consent of the parties to the communications, violating Section 632(a) of the California Penal

Code. Criminal Complaint, California v. Daleiden,

No. 2502505 (Cal. Sup. Ct. Mar. 28, 2017).

On May 25, 2017, Daleiden, CMP, and Daleiden’s

criminal-defense lawyers published hundreds of

hours of enjoined materials on the lawyers’ website

and on CMP’s YouTube channel. In an emergency

hearing the same day, the district court ordered the

immediate removal of all enjoined material and ordered petitioners and their lawyers to show cause

why they should not be held in contempt. D. Ct. ECF

No. 409.

17

Petitioners responded by moving to disqualify the

district judge for purported bias. The district judge

referred the motion for random assignment to a different district judge, who then denied the motion,

finding no “credible arguments for disqualification.”

D. Ct. ECF No. 452 at 6. Nearly six months later,

petitioners sought review of that denial by filing a

petition for a writ of mandamus. In re Center for

Medical Progress, No. 17-73313 (9th Cir., pet. filed

Dec. 13, 2017). That petition remains pending.

The district court held Daleiden, CMP, and

Daleiden’s criminal-defense lawyers in civil contempt, finding “clear and convincing direct and

circumstantial evidence” that they knowingly and

willfully violated the preliminary injunction. D. Ct.

ECF No. 482 at 11. Daleiden, CMP, and Daleiden’s

lawyers have appealed the contempt order. National

Abortion Federation v. Cooley, No. 17-16622 (9th

Cir.). That appeal is in the process of being briefed.

REASONS THE PETITIONS

SHOULD BE DENIED

Review of the court of appeals’ interlocutory, nonprecedential memorandum decision is unwarranted.

The district court made well-supported factual findings and applied settled law, and the court of appeals

found no abuse of discretion. The facts of this case

are unique, and this Court’s review would provide

lower courts vanishingly little guidance. And no

such guidance is needed because the lower courts

agree on the legal principles.

Moreover, the two sets of petitioners cannot even

agree on what questions this Court should decide. In

No. 17-202, the Daleiden petitioners present the

18

primary issue as whether the injunction violates

their First Amendment rights. Daleiden Pet. i. But

they expressly waived their speech rights by knowingly and voluntarily entering into contractual confidentiality obligations. In No. 17-482, petitioner

Newman implicitly recognizes that the First

Amendment is not the proper lens through which to

view this case; he presents the primary issue as

whether the confidentiality agreements are unenforceable as against public policy. Newman Pet. 2238. But that is a state-law question of contract law,

not a question of federal law for this Court.

Both sets of petitioners ultimately agree that the

courts below were required to weigh competing

public-policy interests to determine whether to enforce the confidentiality agreements. But that is

exactly what the lower courts did. Petitioners are

unhappy with the result, but their petitions here

amount to fact-bound requests for error correction.

The petitions should be denied.

I. REVIEW OF THE FIRST AMENDMENT-BASED

QUESTION PRESENTED IN THE DALEIDEN

PETITION IS UNWARRANTED

A. Petitioners Do Not Have A First Amendment

Right To Commit Fraud And Breach Of

Contract

Whether a party has a First Amendment right to

commit fraud and breach of contract, trample on a

private organization’s constitutionally protected associational rights, and disclose to the public the

fruits of their fraud is not a question warranting this

Court’s review. That is particularly so where the answer provided below was in an interlocutory, non-

19

precedential, memorandum decision

unanimous as to this question.

that

was

In any event, the answer is plainly no. The “First

Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law.” Cohen v. Cowles

Media Co., 501 U.S. 663, 672 (1991). Nor does it confer any “‘special immunity from the application of

general laws’” or any “‘special privilege to invade the

rights and liberties of others.’” Id. at 670 (quoting

Associated Press v. NLRB, 301 U.S. 103, 132-33

(1937)). The First Amendment is therefore no obstacle to the enforcement of petitioners’ contractual restrictions on their speech rights, which prohibit them

from broadcasting NAF’s private annual meetings to

the public. As the district court explained, the First

Amendment does not give petitioners “an automatic

license to disregard the confidentiality provisions.”

App. 60a.

Even if petitioners were acting as journalists (they

were not, as the district court found, App. 75a-77a &

n.44), they had no First Amendment right to violate

their contracts in order to access NAF’s annual

meetings. “[T]he First Amendment does not guarantee the press a constitutional right of special access

to information not available to the public generally.”

Branzburg v. Hayes, 408 U.S. 665, 684 (1972). Thus,

journalists are “regularly excluded” from “the meetings of private organizations” without offense to the

First Amendment. Ibid.; see Cohen, 501 U.S. at 669

(First Amendment confers no right to, “with impunity[,] break and enter an office or dwelling to

gather” information to be released to the public.).

20

Nor is enforcing petitioners’ own agreed-to

contracts a prior restraint.

See Perricone v.

Perricone, 292 Conn. 187, 204 (2009) (noting absence

of “a single case in which a court has held that a judicial restraining order that enforces an agreement

restricting speech between private parties constitutes a * * * prior restraint[] on speech”). A prior restraint is found where the government attempts to

preclude speech. E.g., Freedman v. Maryland, 380

U.S. 51 (1965) (striking down motion-picturecensorship law). Here, petitioners entered into private contracts in which they agreed to restrict their

own speech. Where, as here, “[t]he parties themselves * * * determine the scope of their legal obligations, * * * any restrictions that may be placed on the

publication” are “self-imposed,” not imposed by the

government. Cohen, 501 U.S. at 671.

B. The Daleiden Petitioners Have No Coherent

Legal Rule And Ultimately Are Seeking Error

Correction

1. The Daleiden petitioners frame the primary

question presented in such a way that, if answered

yes, would essentially preclude all courts from enjoining disclosure of any confidential, sensitive, or

classified information. Petitioners assert that the

First Amendment forbids “issuance of an injunction

restraining the release of information of undisputed

and legitimate public interest.” Daleiden Pet. i. If

that were the law, it would mean no confidentiality

agreement could ever be enforced through an injunction, no sensitive information could be kept private

through a protective order, and no court could preclude disclosure of government-classified information—so long as the public has some “interest” in

21

the information. But the public nearly always has

an interest in confidential information. Indeed,

confidentiality agreements, protective orders, and

classified designations are put into place because the

public would be interested in information that parties or courts need to keep confidential. See, e.g.,

Fed. R. Civ. P. 26(c)(1) (Protective orders “forbidding

the disclosure of discovery” may be issued “to protect

a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.”).

Petitioners’ rule would be contrary to this Court’s

decision in Seattle Times Co. v. Rinehart, 467 U.S.

20 (1984). There, this Court upheld an order barring

disclosure of information produced in discovery, even

though “there certainly is a public interest” in the information. Id. at 31. The Court explained that it

“does not necessarily follow” that there is an “unrestrained right to disseminate” information to the

public. Ibid. “[E]ven though the broad sweep of the

First Amendment seems to prohibit all restraints on

free expression, this Court has observed that

‘[f]reedom of speech * * * does not comprehend the

right to speak on any subject at any time.’” Ibid.

(quoting Am. Commc’ns Ass’n v. Douds, 339 U.S.

382, 394-95 (1950)). Thus, courts may, “on a showing

of good cause,” issue orders prohibiting the disclosure

of information even though the public has an interest

in the information. Id. at 37. Such an order “does

not offend the First Amendment.” Ibid.

Under the Daleiden petitioners’ view, however,

individuals have a First Amendment right to disclose

any information, including information subject to a

protective order, if the public would have an “interest” in it. Daleiden Pet. i. According to petitioners,

22

courts are powerless to issue an “injunction restraining the release” of such information. Ibid.

There is no support for that unrestrained view of the

First Amendment.

2. Perhaps recognizing the indefensible nature of

the position taken in their question presented, the

Daldeiden petitioners seem to advance narrower theories in other parts of their petition.

To start, petitioners allow that disclosure of

“government-classified information and trade secrets” may be enjoined because those categories of

information “enjoy specific statutory protection” and

because “there are recognized overriding societal interests in protecting the confidentiality” of this information. Daleiden Pet. 14, 16.

But this limitation readily falters. There is no

sound reason why trade secrets would be more deserving of protection than NAF’s associational right

to keep its annual meetings private. Even if NAF’s

associational rights do not have “specific statutory

protection,” Daleiden Pet. 14, they are protected by

the Constitution. See Boy Scouts of Am. v. Dale, 530

U.S. 640, 655 (2000) (private organization has constitutional right to exclude if it engages in expressive

activity that could be impaired by inclusion); Hurley

v. Irish-American Gay, Lesbian & Bisexual Grp. of

Boston, Inc., 515 U.S. 557, 580-81 (1995) (private or-

ganization can exclude members “whose manifest

views [are] at odds” with the organization’s existing

members); Brown v. Socialist Workers ’74 Campaign

Cmte. (Ohio), 459 U.S. 87, 91 (1982) (“‘Inviolability of

privacy in group association may in many circumstances be indispensable to preservation of freedom

23

of association, particularly where a group espouses

dissident beliefs.’” (citation omitted)); NAACP v.

Alabama, 357 U.S. 449, 462 (1958) (recognizing

“freedom to associate and privacy in one’s associations”). And in any event, California statutes specifically protect confidential communications, prohibiting their recording without the consent of all parties

to the communication. Cal. Penal Code § 632(a).

3. Next, the Daleiden petitioners try a different

tack, asserting that a “private party” cannot obtain

an injunction through “the device of a nondisclosure

agreement.” Daleiden Pet. 12. According to petitioners, they could not find a single “case in which

federal courts have imposed or upheld an injunction

prohibiting the disclosure of information to the public, based on an agreement between private parties.”

Pet. 17.

But courts routinely issue protective orders barring litigants from publicly disclosing information

that parties have agreed to keep confidential. For

example, “courts have granted protective orders to

protect confidential settlement agreements.” Phillips

ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d

1206, 1212 (9th Cir. 2002). A protective order “act[s]

as an injunction,” Public Citizen v. Liggett Grp., Inc.,

858 F.2d 775, 782 (1st Cir. 1988), and is enforceable

through contempt, Doe v. Maywood Housing

Authority, 71 F.3d 1294 (7th Cir. 1995).

4. So the Daleiden petitioners change their legal

theory yet again. They argue that courts cannot

blindly enforce confidentiality agreements through

an injunction but must “consider public policy” in deciding whether to do so. Daleiden Pet. 18. But that

24

is exactly what the courts below did. Contrary to the

Daleiden petitioners’ representation, the lower courts

did not “assume[] Daleiden’s putative waiver of First

Amendment rights through confidentiality agreements was the beginning and end of the balancing of

public interest.” Daleiden Pet. 19.

Rather, the lower courts followed precedent requiring case-by-case consideration of public-policy interests to determine whether to enforce a waiver of

speech rights. See Daleiden Pet. 17 (acknowledging

that both courts relied on Leonard v. Clark, 12 F.3d

885 (9th Cir. 1993)). Under Leonard, “even if a party

is found to have validly waived a constitutional

right,” the court “will not enforce the waiver if the

interest in its enforcement is outweighed in the

circumstances by a public policy harmed by

enforcement of the agreement.” 12 F.3d at 890 (quotation marks and citation omitted). Courts “balance

the public policies favoring enforcement” of the

waiver “against those favoring non-enforcement.” Id.

at 891; see Restatement (Second) of the Law of

Contracts § 178(1) (1981) (“A promise or other term

of an agreement is unenforceable on grounds of public policy if * * * the interest in its enforcement is

clearly outweighed in the circumstances by a public

policy against the enforcement of such terms.”).

Here, the district court expressly “[w]eigh[ed] the

public policy interests on the record before” the court

and determined that “enforcement of the confidentiality agreements is not contrary to public policy.”

App. 64a; see App. 68a. As part of that weighing, the

court carefully considered the interests of the public

and law enforcement. App. 62a-65a & n.34. The

court also considered NAF’s constitutionally pro-

25

tected associational rights, as well as California’s interest in protecting reproductive-health-care workers

from harassment, threats, and violence, App. 63a64a. Those are compelling public-policy interests

that petitioners completely ignore. The court concluded that the public’s interest in the information

does not “outweigh the competing interests of NAF

and its members’ expectations of privacy, their ability to perform their professions, and their personal

security.” App. 63a. The court of appeals reviewed

that determination and concluded that on this particular record, the district court did not “abuse its

discretion in concluding that a balancing of the competing public interests favored preliminary enforcement of the confidentiality agreements.” App. 5a.

Thus, the court of appeals’ non-precedential decision here in no way suggests that all confidentiality

agreements will be enforced through an injunction in

all circumstances. Every case involves an inquiry

into whether, on the specific facts presented, enforcement of the confidentiality agreement violates

public policy. Leonard, 12 F.3d at 890.

At bottom, the Daleiden petitioners are unhappy

with how the lower courts performed this factintensive weighing of the public-policy interests, and

they ask this Court to engage in error correction.

See Daleiden Pet. 17-18 (disagreeing with how the

court of appeals applied Leonard). But this Court

rarely grants review when the asserted error consists

of “the misapplication of a properly stated rule of

law.” S. Ct. R. 10.

5. Finally, stuck in error-correction mode, the

Daleiden petitioners quibble with the district court’s

26

irreparable-harm findings. They claim the court

could not consider threats, harassment, and violence

perpetrated by others in response to petitioners’ release of recordings. Daleiden Pet. 20-21. But as the

court rightly recognized (App. 69a), the correct inquiry was whether NAF and its members are “likely

to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008). The court found that releasing

the recordings “would likely lead to * * * further harassment and incidents of violence.” App. 71a. The

court thus applied the correct legal test. Indeed,

none of the decisions cited by petitioners holds that

harassment and violence perpetrated by third parties cannot be considered in the irreparable-harm

analysis.

In any event, petitioners completely ignore the

district court’s other irreparable-harm findings that

independently support the preliminary injunction.

The court found that releasing the recordings would

require NAF and its members to take additional security measures, and it would immediately and irreparably destroy NAF’s “members’ freedom of

association (to gather at NAF meetings and share

their confidences).” App. 71-73a.

C. The Decision Below Does Not Conflict With

That Of Any Other Court Of Appeals

Review is further unwarranted because the unpublished decision below does not conflict with any

other court-of-appeals decision. Nor could it do so, as

it is not precedential. The Daleiden petitioners have

contrived a supposed 2-1 conflict that, even if it existed, would be stale and shallow and would not war-

27

rant this Court’s intervention.

conflict is non-existent.

But the asserted

1. The Second Circuit’s decision in Crosby v.

Bradstreet Co., 312 F.2d 483 (2d Cir. 1963), is readily distinguishable. There, the parties to a libel case

entered into a stipulation that Dun & Bradstreet, a

business-credit-report publisher, would refrain from

publishing “any report, comment, or statement”

about Crosby for all time. Id. at 484. The district

court entered the stipulation as an order. Ibid.

Thirty years later, the Second Circuit held that the

order was overly broad: it “was not directed solely to

defamatory reports, comments or statements, but to

‘any’ statements,” including statements that were

“not libelous.” Id. at 485. The court was “concerned

with the power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character

of that information.” Ibid.

The preliminary injunction here is completely different. It does not preclude petitioners from making

“any” statements about NAF. Rather, it is tailored to

the recordings and materials that petitioners fraudulently obtained through breach of contract.

2. Petitioners’ reliance on United States v.

Marchetti is puzzling, as there the Fourth Circuit

affirmed an injunction that enforced a confidentiality

agreement. 466 F.2d 1309, 1311-12 (4th Cir. 1972).

Marchetti was a former CIA employee who, as a condition of his employment, had signed a secrecy

agreement promising not to disclose classified information without authorization. Id. at 1312. When

Marchetti sought to publish an article containing

28

classified information, the district court issued an

injunction enforcing the secrecy agreement. Id. at

1312-13.

The Fourth Circuit held that the injunction comported with the First Amendment. Ibid. As the

court explained, the right to speak is not absolute.

Id. at 1313-15. The government has a need to keep

confidential information secret, and nothing in the

Constitution requires the government to divulge

such information. Id. at 1315-16. So it is “entirely

appropriate” for the government to require CIA employees to sign secrecy agreements. Id. at 1316.

Marchetti remained free to disclose unclassified information, which would not violate the secrecy

agreement. See id. at 1312 n.1, 1317. But the court

affirmed the injunction against disclosing classified

information as prohibited by the secrecy agreement.

Id. at 1317.

Marchetti cannot conflict with the decision below

because Marchetti does not address whether private

parties’ confidentiality agreements may be enforced

through an injunction. To the extent Marchetti is

apposite, it supports the ruling below. The Fourth

Circuit explained that “[c]onfidentiality inheres in

the situation and relationship of the parties.” Id. at

1316. Where one party has a legitimate need for confidentiality and another party voluntarily agrees to

keep the information secret, enforcing the agreement

does not violate the First Amendment. Like the government in Marchetti, it was entirely appropriate for

NAF to secure its privacy by requiring exhibitors and

attendees at its annual meetings to sign confidentiality agreements as a condition of their attendance.

29

Enforcing the agreements through an injunction

comports with the First Amendment.

What is more, Marchetti suggests that courts can

enjoin the disclosure of “information of undisputed

and legitimate public interest.” Daleiden Pet. i. The

enjoined CIA-classified information in Marchetti was

surely of immense public interest. See 466 F.2d at

1313 (Marchetti’s article had been submitted to Esquire magazine and other publishers, and he had appeared on television and radio shows).

II. REVIEW OF THE PUBLIC-POLICY-BASED

QUESTION PRESENTED IN NEWMAN’S

PETITION IS UNWARRANTED

A. The Public-Policy Question Here Is Not A

Federal Question

Petitioner Newman focuses on a different question: whether the confidentiality agreements are

unenforceable as contrary to public policy. In particular, Newman argues that public policy prohibits

enforcement of the agreements to the extent they

preclude petitioners from submitting the recordings

and materials to law-enforcement agencies without a

subpoena.

This is not a First Amendment question, and

Newman does not appear to treat it as one. Rather,

whether public policy precludes enforcement of a

contract is a question of contract law. See Restatement (Second) of the Law of Contracts § 178(1). And

contracts between private parties are ordinarily governed by state law. DIRECTV, Inc. v. Imburgia, 136

S. Ct. 463, 468 (2015). This Court does not review

state-law questions.

30

The district court implicitly recognized that the

public-policy issue is a state-law question. It concluded that public policy supports enforcing the confidentiality agreements for several reasons, including

that releasing the recordings would be “contrary to

California’s recognition of the dangers faced by providers of abortion, as well as California’s efforts to

keep information regarding the same shielded from

public disclosure and protect them from threats and

harassment.” App. 64a (citing Cal. Govt. Code

§§ 6215(a), 6218, 6254.28; Cal. Civ. Code § 3427 et

seq.; Cal. Penal Code § 423).

Additionally, petitioners conceded that the publicpolicy inquiry is a state-law question. They expressly argued below that enforcing the confidentiality agreements would “violate[] the strong public

policy of California and every other state.” Petrs’.

CA Br. 19. Moreover, both parties and the district

court treated the contracts as governed by California

state contract law, not federal law. Petrs.’ CA Br. 4047; Resp’s. CA Br. 28-36; App. 45a, 52a n.29.

The state-law nature of the public-policy inquiry is

confirmed by decisions on which Newman relies. In

Lachman v. Sperry-Sun Well Surveying Co., the

Tenth Circuit held that public policy barred enforcement of a confidentiality agreement that would have

precluded a surveying company from informing its

customer’s neighbor that the customer’s oil-and-gas

well ran under the neighbor’s property. 457 F.2d

850, 852-54 (10th Cir. 1972). That case was decided

as a matter of Oklahoma contract law. The court

cited Oklahoma statutes to show that the neighbor

was legally entitled to natural gas below the land’s

surface, and it cited Oklahoma decisions as showing

31

that Oklahoma courts prioritize enforcement of state

law over enforcement of private contracts when those

interests collide. See id. at 852-53.

Likewise, in Bowman v. Parma Board of

Education, an Ohio appellate court held that a confi-

dentiality agreement between a school board and a

fired teacher was unenforceable to the extent it prevented school-board members from warning the

teacher’s new employers that he had been fired for

molesting students. 542 N.E.2d 663, 666-67 (Ohio

Ct. App. 1988). Among the court’s considerations

was that state law required the reporting of felonious

conduct. Id. at 667 & n.5; see also Cosby v. American

Media, Inc., 197 F. Supp. 3d 735, 740-43 (E.D. Pa.

2016) (applying common-law contract principles in

holding that a confidentiality agreement did not bar

voluntary cooperation with law enforcement).

Other decisions cited by Newman demonstrate

only that federal law may be implicated where, for

example, the federal government is a party to the

confidentiality agreement or where enforcing the

contract would violate the U.S. Constitution or federal law. See Hurd v. Hodge, 334 U.S. 24, 34-36

(1948) (enforcing restrictive covenant would violate

Fifth and Fourteenth Amendments and federal civilrights statute); Fomby-Denson v. Dep’t of Army, 247

F.3d 1366, 1369, 1373-74 (Fed. Cir. 2001) (applying

federal common law to federal government contract);

EEOC v. Astra USA, Inc., 94 F.3d 738, 744 (1st Cir.

1996) (concluding that agreements barring employees from assisting the EEOC were void as against

public policy because they would impair EEOC’s

ability to enforce federal anti-discrimination laws).

Those circumstances are not present here.

32

In any event, to the extent federal public policy is

implicated here, it supports enforcing the confidentiality agreements.

The Constitution guarantees

NAF’s associational right to meet privately and to

exclude those opposed to its core mission. Supra pp.

22-23. The confidentiality agreements were put into

place to secure NAF’s constitutionally protected freedom. Refusing to enforce the confidentiality agreements would vitiate NAF’s constitutional rights.

B. The Decision Below Does Not Conflict With

Decisions Of Any Other Circuits

There is no conflict among the courts of appeals

over whether and when a contract may be deemed

unenforceable as against public policy in the circumstances present here. Here, the district court found

that, on the present, preliminary record, petitioners

uncovered no evidence of criminal wrongdoing to be

reported to law enforcement. As the court of appeals

explained, “the district court’s finding that [petitioners] uncovered no violations of the law is a sufficient

answer to any right” claimed by petitioners to report

such violations. App. 6a. Yet the lower courts “carefully balance[d] the interests of NAF and law enforcement” and tailored the preliminary injunction so

that it “in no way prevents law enforcement from

conducting lawful investigations.” App. 6a-7a.

This case is nothing like the decisions discussed in

Newman’s petition concerning reporting to law enforcement. In none of those cases was there a factual

finding of a complete absence of any criminal wrongdoing to be reported. Nor did those cases involve situations like here, where holding the contracts

33

unenforceable would vitiate NAF’s constitutionally

protected associational rights.

Lachman and Bowman involved clear violations of

the law. Lachman, 457 F.2d at 852-53; Bowman, 542

N.E.2d at 666. Neither Astra USA nor FombyDenson involved a court’s finding that there was no

evidence of criminality. In both cases, unlike here,

the confidentiality agreements impeded government

investigations into alleged wrongdoing. Astra USA,

94 F.3d at 742, 744; Fomby-Denson, 247 F.3d at

1377-78. Newman also cites a handful of districtcourt and state-court decisions, but none involves a

finding of no wrongdoing, and even if they did, a conflict with those decisions would not warrant review.

The absence of any conflict is confirmed by the

district court’s opinion here. Discussing some of the

very same decisions cited by Newman, the district

court recognized that some “courts have refused to

enforce, or excused compliance with, otherwise applicable confidentiality agreements for the limited purpose of allowing cooperation with a specified law

enforcement investigation.”

App. 65a (citing

Lachman); see id. at 66a n.35 (citing Fomby-Denson).

The district court did “not disagree with the analysis

and results in those cases,” but it explained that

“[t]hose cases are inapposite” and that “the posture

of this case is different.” App. 66a & n.35.

Thus, far from a conflict, the courts below agreed

with the legal principles in Newman’s cited decisions. Newman’s complaint is with how the lower

courts applied those principles to the particular facts

of this case. That complaint does not warrant review. See S. Ct. R. 10.

34

C. The Decision Below Does Not Conflict With

This Court’s Decisions

The ruling below also accords with this Court’s decisions. Newman cites various decisions to show a

general policy favoring reporting to law enforcement.

Newman Pet. 23-25. But as discussed, the courts

below recognized and carefully considered that policy. None of Newman’s cited decisions establishes an

absolute right to report information that a court has

already found does not show wrongdoing—and

certainly none suggests such a right when there

additionally are compelling countervailing publicpolicy interests favoring non-disclosure.

Nor does the ruling below conflict with SEC v.

Jerry T. O’Brien, Inc., 467 U.S. 735 (1984). That decision holds—based in part on the statutes specifically governing SEC investigations—that the SEC

need not notify the target of an investigation before

issuing a third-party subpoena. Id. at 741-42. Although the protective order here requires petitioners

to notify NAF of any subpoena, that order is consistent with O’Brien. As the court of appeals explained, “O’Brien involves investigations in which a

target is unaware of an ongoing investigation and

still possesses” responsive materials, and thus might

destroy the materials if alerted. App. 6a-7a. Here,

“NAF already knows that some law enforcement

authorities seek this information.” App. 7a. And,

significantly, petitioners’ lawyers possess copies of

the recordings and “are hardly likely to destroy”

them. Ibid.

Even further afield are Newman’s citations to

New York Times v. United States, 403 U.S. 713

35

(1971), and CBS, Inc. v. Davis, 510 U.S. 1315 (1994)

(Blackmun, J., in chambers). Neither case involved a

claim of a right to provide information to law enforcement. More significantly, those decisions are

inapposite because, unlike petitioners here, neither

The New York Times nor CBS entered into a confidentiality agreement agreeing not to publish the information.

D. This Case Would Be A Poor Vehicle To Decide

The Public-Policy Question

Were this Court inclined to consider whether lawenforcement interests always trump confidentiality

agreements, it should do so in a future case that is

not an exceptionally poor vehicle.

First, as discussed, whether the contracts here are

unenforceable as against public policy is a question

of state contract law. Supra, pp. 29-31. At the very

least, were review granted, this Court would have to

decide at the threshold whether state or federal law

governs. A better vehicle would be a case in which

federal law clearly governs.

Second, the district court made extensive findings

that petitioners uncovered no evidence of criminal

wrongdoing, and the court of appeals held those

findings adequately supported. App. 5a, 26a-32a,

60a-62a. That makes this fact pattern exceedingly

rare, and therefore the Court’s weighing of the

public-policy interests in this case would provide little guidance for future cases.

Third, as the district court explained, any conflict

between the confidentiality agreements and law enforcement’s interests “has not been placed directly at

36

issue.” App. 66a. The preliminary injunction here

does not hamper law enforcement. App. 6a. Lawenforcement agencies throughout the Nation are already well aware of the presence of the recordings

and can subpoena them; so petitioners’ claimed need

to unilaterally disclose the recordings to law enforcement without a subpoena is sharply diminished.

Nine States have already opened and closed investigations, while eleven other States publicly refused to

pursue any investigations. CA SER326-77, 406-08.

Only two States have issued subpoenas for the materials, but they have not tried to enforce them. App.

66a-67a. Petitioners have repeatedly stipulated to

extend the schedule for NAF to challenge the subpoenas. App. 67a n.37. Thus, a superior vehicle

would be a case in which a State’s attempt to enforce

a subpoena were thwarted by an injunction, or a case

in which the injunction precluded voluntary disclosure of materials to law enforcement and law enforcement was not already aware of the materials.

And fourth, this case would be an exceptionally

poor vehicle to review the requirement that petitioners notify NAF of any subpoena. No party appealed

from the protective order that includes that requirement. Moreover, petitioners expressly agreed to that

requirement. App. 6a; CA ER127.

III. THE COURT OF APPEALS CORRECTLY

REVIEWED THE PRELIMINARY INJUNCTION

FOR ABUSE OF DISCRETION

Contrary to arguments advanced by both sets of

petitioners, the court of appeals correctly applied an

abuse-of-discretion standard in reviewing the preliminary injunction. Petitioners do not allege any

37

conflict among the circuits over the standard-ofreview question, nor do they cite any court-of-appeals

case that has applied de novo review in circumstances like those here. Petitioners’ argument that

de novo review should have applied is wrong.

This Court has repeatedly instructed that preliminary injunctions are reviewed for abuse of discretion—including in First Amendment cases. E.g.,

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656,

664 (2004) (“This Court, like other appellate courts,

has always applied the abuse of discretion standard

on review of a preliminary injunction.”); see also

McCreary Cty., Ky. v. Am. Civil Liberties Union of

Ky., 545 U.S. 844, 867 (2005); Walters v. Nat’l Ass’n

of Radiation Survivors, 473 U.S. 305, 335 (1985);

Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32

(1975). None of the cases relied on by petitioners involved review of a preliminary injunction. Rather,

each case involved judgment following a trial.

Hurley, 515 U.S. at 561-562; NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 890-893 (1982); Old

Dominion Branch No. 496 v. Austin, 418 U.S. 264,

268-69 (1974).

Where the Court has undertaken an independent

examination of facts in First Amendment cases, it

has done so to determine whether the activity at issue is “in the nature of protected speech.” Hurley,

515 U.S. at 567; see Old Dominion, 418 U.S. at 282

(discussing the Court’s obligation to review facts to

determine whether “the expression involved was entitled to First Amendment protection”). For example,

in Hurley, the Court reexamined the state courts’

characterization of a parade as “lacking the element

38

of expression for purposes of the First Amendment.”

Ibid. 515 U.S. at 567.

Here, however, the district court made no finding

that publishing the recordings is not the type of

speech ordinarily entitled to First Amendment protection. Instead, the key findings were that petitioners waived their First Amendment rights and that

the recordings do not show any criminal wrongdoing.

App. 5a-6a. None of petitioners’ cited decisions suggests those factual findings must be reviewed de

novo—and particularly not in the context of a preliminary injunction.

Additionally, petitioners have no support for the

notion that the district court’s findings of irreparable

harm or its weighing of the public interests should

have been reviewed de novo. Contra Daleiden Pet.

25-28.

Petitioners’ claims of error on the standard-ofreview question are unfounded.

39

CONCLUSION

The petitions for writs of certiorari should be

denied.

Respectfully submitted,

DEREK F. FORAN

CHRISTOPHER L. ROBINSON

NICHOLAS ROETHLISBERGER

MORRISON & FOERSTER LLP

425 Market St.

San Francisco, CA 94105

MARC A. HEARRON

Counsel of Record

SOPHIA M. BRILL

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 778-1663

MHearron@mofo.com

Counsel for Respondent

FEBRUARY 26, 2018