Reply Brief — Center for Medical Progress, et al., Petitioners v. National Abortion Federation

Supreme Court briefAug 22, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-1135

In the Supreme Court of the United States

CENTER FOR MEDICAL PROGRESS; BIOMAX

PROCUREMENT SERVICES, LLC; and DAVID DALEIDEN,

Petitioners,

NATIONAL ABORTION FEDERATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

REPLY BRIEF FOR PETITIONERS

Thomas Brejcha

Peter Breen

THOMAS MORE SOCIETY

309 W. Washington

Suite 1250

Chicago, IL 60606

(312) 782-1680

Jeffrey M. Harris

Counsel of Record

James F. Hasson

James P. McGlone

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

jeff@consovoymccarthy.com

Heather Gebelin Hacker

Andrew B. Stephens

HACKER STEPHENS LLP

108 Wild Basin Rd.

South Suite 250

Austin, TX 78746

(512) 399-3022

Charles S. LiMandri

Paul M. Jonna

Jeffrey M. Trissell

LIMANDRI & JONNA LLP

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858) 759-9938

August 22, 2023

Attorneys for Petitioners

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Reply Brief .................................................................. 1

The question presented is a matter of

profound public importance, and the lower

courts’ decisions flout the First Amendment ...... 2

II. NAF’s defense of the lower courts’ finding of

waiver is unavailing ............................................ 5

III. No other obstacles impede the Court’s review .. 10

Conclusion ................................................................ 13

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023) ......................................... 10

Center for Medical Progress v. Planned Parenthood

Federation of Am., No. 22-1168 (U.S. filed May

30, 2023) .............................................................. 12

C.I.R. v. McCoy,

484 U.S. 3 (1987) ...................................................2

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ...............................................6

Curtis Pub. Co. v. Butts,

388 U.S. 130 (1967) ...............................................9

D.H. Overmyer Co. Inc., of Ohio v. Frick Co.,

405 U.S. 174 (1972) ...............................................8

Davies v. Grossmont Union H.S. Dist.,

930 F.2d 1390 (9th Cir. 1991) .............................11

Edgar v. Haines,

2 F.4th 298 (4th Cir. 2021) ...................................6

Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952 (2022) ........................................... 12

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ...........................................8

Johnson v. Zerbst,

304 U.S. 458 (1938) ......................................... 8, 12

Lane v. Franks,

573 U.S. 228 (2014) ...............................................3

iii

Leonard v. Clark,

12 F.3d 885 (9th Cir. 1993) ............................. 7, 11

McLane Co. v. E.E.O.C.,

581 U.S. 72 (2017) ............................................... 11

Moore v. City of East Cleveland,

431 U.S. 494 (1977) ...............................................5

N.Y. Times Co. v. United States,

403 U.S. 713 (1971) ...............................................3

Planned Parenthood of Greater Tex. Fam. Plan. &

Preventative Health Servs., Inc. v. Kauffman,

981 F.3d 347 (5th Cir. 2020) (en banc).................9

Plumley v. Austin,

135 S. Ct. 828 (2015) .............................................2

Ricci v. DeStefano,

557 U.S 557 (2009) ................................................2

Snepp v. United States,

444 U.S. 507 (1980) ........................................... 5, 6

Tory v. Cochran,

544 U.S. 734 (2005) ...............................................5

Youngblood-West v. Aflac Inc.,

796 F. App’x 985 (11th Cir. 2019) ........................7

Other Authorities

Rep. Daniel Webster, Rep. Webster Demands DOJ

Investigate Illegal Fetal Tissue Research, (Sept.

23, 2021), https://perma.cc/F4LR-TW5Z ..............3

Sen. Bill Cassidy, Cassidy, Colleagues Urge DOJ,

FBI to Investigate Planned Parenthood for Illegal

Trafficking and Sale of Fetal Tissue, (Aug. 10,

2020), https://perma.cc/M3RG-PEBC ...................3

REPLY BRIEF

NAF concedes that Petitioners engaged in public

speech when they published the first half of their

video footage. It concedes that Petitioners’ speech

sparked intense nationwide debate and directly led to

state and federal investigations, criminal referrals,

convictions, new state laws, and terminations of

federal contracts. It likewise concedes that the district

court injunction permanently bans Petitioners from

sharing, or even describing, their remaining 500

hours of footage with anyone, for any reason. Daleiden

cannot use it to publicly defend himself from criminal

charges. Petitioners cannot provide it to law

enforcement, even though they believe it contains

evidence of criminal activity. And they cannot publish

it to inform the ongoing debate about the use of organs

from aborted babies in medical research or the fetal

tissue industry more broadly.

NAF suggests this is all business as usual and

that this case is simply a factual dispute with no

constitutional implications. But the First Amendment

implications of the district court’s permanent gag

order are staggering. Thus, NAF retreats to a handful

of inapposite cases about waiver, argues that “no First

Amendment concerns are implicated at all,” BIO.20,

and asserts that Petitioners have forfeited arguments

that were explicitly raised below.

Contrary to NAF’s suggestion, the question before

the Court is a straightforward and highly

consequential matter of constitutional law: can a

district court enter a permanent injunction that

completely bans speech on a specific matter without

applying any level of First Amendment scrutiny? This

Court’s intervention and reversal of the decision below

are imperative.

The question presented is a matter of

profound public importance, and the lower

courts’ decisions flout the First Amendment.

NAF dedicates most of its brief to characterizing

this appeal as a routine factual dispute unworthy of

this Court’s attention. E.g., BIO.14. Tellingly, it

spares only a few pages addressing the public

importance of the constitutional issue at stake.

BIO.34-35. On the merits, NAF largely quotes the

district court and Ninth Circuit opinions, and argues

that this Court’s prior restraint jurisprudence is

entirely inapposite to a permanent gag order against

further speech.

A. As amici underscore, this case raises issues of

profound national importance. 1 Petitioners’ speech

prompted debate and substantive changes at every

level of government and across a vast array of public

and private institutions. See Pet.6-9; Br. for Judicial

Watch at 8-23.

1 NAF repeatedly notes that the Ninth Circuit’s opinion was

unpublished, BIO.1, 8, 12, but that “carries no weight” in this

Court’s certiorari analysis, C.I.R. v. McCoy, 484 U.S. 3, 7 (1987);

see also Ricci v. DeStefano, 557 U.S 557, 576 (2009). Given the

seven-year procedural history and enormous stakes of this case,

that “the decision below is unpublished … is yet another

disturbing aspect of the [Ninth] Circuit’s decision, and yet

another reason to grant review.” Plumley v. Austin, 135 S. Ct.

828, 831 (2015) (Thomas, J., dissenting from denial of certiorari).

Those debates are still ongoing. See, e.g., Rep.

Daniel Webster, Rep. Webster Demands DOJ

Investigate Illegal Fetal Tissue Research, (Sept. 23,

2021), https://perma.cc/F4LR-TW5Z (letter from 44

congressmen

and

senators

requesting

investigation into University of Pittsburgh’s use of

organs from aborted fetuses in research experiments);

Sen. Bill Cassidy, Cassidy, Colleagues Urge DOJ, FBI

to Investigate Planned Parenthood for Illegal

Trafficking and Sale of Fetal Tissue, (Aug. 10, 2020),

https://perma.cc/M3RG-PEBC

(letter

from

senators requesting investigation based on testimony

from related case involving CMP). The injunction

deprives the public of “the complete picture” about

these issues. Br. for Judicial Watch at 24; cf. N.Y.

Times Co. v. United States, 403 U.S. 713, 723-34

(1971) (Douglas, J., concurring) (“[S]erious impact” of

publication is “no basis for sanctioning a previous

restraint on the press,” because “[o]pen debate and

discussion of public issues are vital to our national

health.”).

If the Ninth Circuit were right, then speech that

“lies at the heart of the First Amendment” could be

extinguished by fine print in form contracts signed

years or decades before. Lane v. Franks, 573 U.S. 228,

325 (2014). The decisions below “open[] the door to a

wide range of prior restraints,” enforced by federal

courts under pain of sanctions. Br. for Missouri, et al.

at 13. Speech on any topic could be censored without

any level of First Amendment scrutiny if a plaintiff

could contrive some argument that that a defendant

waived its right to speak.

The public also has “a strong interest in ensuring

that [citizens] can freely communicate with law

enforcement.” Br. for Missouri, at 1. The Ninth

Circuit, however, has announced a de facto rule that

a private party can use a purported “contractual

waiver as a sword to prevent another party from

sharing information with law enforcement.” Id. NAF

offers no defense of this new legal principle. Instead,

it suggests that the injunction “‘has [n]ever stood in

the way of law enforcement or governmental

investigations,” because “seven states opened and

closed investigations” without charges. BIO.32.

That argument is circular, as Petitioners have

been enjoined from sharing any evidence for the past

six years. It also fails on its own terms because

multiple companies—including one of NAF’s

members—were prosecuted for selling or transferring

fetal tissue due to video evidence released by CMP

before the injunction was entered. See Pet.App.32

n.19; Br. of Amici Curiae Attorneys General at 5-9,

Planned Parenthood Fed’n of Am. v. Center for Med.

Progress, No. 20-16068 (9th Cir. 2021) (“Defendants’

videos aided state and local investigations and

enforcement actions.”). Notably, the NAF member

subject to prosecution was accused of illegally

transferring fetal tissue to a second NAF member. Id.

There can be no serious dispute about the importance

of the enjoined speech.

B. The Ninth Circuit’s decision affirmed an

unprecedented prior restraint and must be reversed.

Petitioners had released only half of their

investigation before the district court ordered them to

stop speaking. By essentially silencing Petitioners

mid-sentence, the district court departed from

centuries of jurisprudence stretching back to the

sixteenth-century common law. See Br. for American

Constitution Rights Union at 5-16.

NAF cannot identify a single case that parallels

the prior restraint entered by the district court. For

good reason: this Court has never held that a

“permanent injunction” against “all future speech” is

constitutionally permissible, even in cases of repeated

defamation. Tory v. Cochran, 544 U.S. 734, 739 (2005)

(Thomas, J., dissenting). NAF’s only retort is to claim

that Petitioners cannot produce supporting precedent,

either. See BIO.14-16. That is incorrect. See Pet.17-18,

30. To the extent that none of those cases “expressly

consider[ed]” a gag order of infinite duration and

unlimited scope, that only highlights the extreme

nature of the district court’s injunction. Moore v. City

of East Cleveland, 431 U.S. 494, 500 (1977). “But

unless [this Court] close[s] [its] eyes to the basic

reasons why” it has rejected every prior restraint it

has reviewed, it “cannot avoid applying the force and

rationale of [those] precedents” to the injunction here.

Id. at 501.

II. NAF’s defense of the lower courts’ finding of

waiver is unavailing.

A. NAF fails to cite any precedent finding a waiver

of core constitutional protections in remotely

comparable circumstances. Its lead attempt is Snepp

v. United States, 444 U.S. 507 (1980), in which this

Court enforced a former CIA employee’s agreement

“not to divulge classified information and not to

publish any information without prepublication

review.” Id. at 508 (emphases original). But the

agreements there, unlike those here, “expressly

obligated [the employee] to submit any proposed

publication for prior review,” which obligation he had

“voluntarily reaffirmed … when he left the Agency.”

Id. at 509 n.3. Unlike NAF’s form exhibit-space

agreements, which alluded generally to undefined

“injunctive relief,” the Snepp agreements spelled

out—and obtained the defendant’s consent to—the

exact process of prepublication review.

Moreover, the burden on speech in Snepp rested

on the highest justification: that publication would

jeopardize “both the secrecy of information important

to our national security and the appearance of

confidentiality so essential to the effective operation

of our foreign intelligence service.” Id. No such

interests are at stake here. Cf. BIO.28 (invoking only

alleged interests in freedom of contract and

association). And yet the burden on speech in Snepp

was also much lighter: a prepublication review

process, as “a reasonable means for protecting [the

Government’s] vital interest,” 444 U.S. at 509 n.3, not

a permanent injunction against all publication.

NAF fares no better with its other cases. Edgar v.

Haines also involved CIA prepublication review, and

the court straightforwardly applied Snepp to

circumstances implicating national security. 2 F.4th

298, 312 (4th Cir. 2021); see BIO.24-25. Cohen v.

Cowles Media Co. never mentioned waiver at all and

concerned only a damages award, not a prior restraint

of speech. 501 U.S. 663 (1991); see BIO.16. And for the

proposition that courts “broadly agree” that waivers

are enforceable even against speech that “spark[s] the

public’s interest,” BIO.29, NAF cites only an

unpublished decision enforcing a settlement

agreement—negotiated with advice of counsel—in

which parties “covenant[ed] that neither they nor

their counsel shall reveal to anyone the alleged acts or

omissions giving rise to their claims,” YoungbloodWest v. Aflac Inc., 796 F. App’x 985, 988 (11th Cir.

2019). None of these cases supports the dramatic

waiver of rights the lower courts seized on here to

bypass the First Amendment altogether.

NAF also relies on Leonard v. Clark, 12 F.3d 885

(9th Cir. 1993); see BIO.25-26, 28, but that case only

highlights the lower courts’ erroneous approach to

waiver. Leonard concerned financial penalties

indirectly related to a union’s speech—far less severe

a restriction than a prior restraint. 12 F.3d at 886.

This distinction was crucial to the court’s decision to

enforce the waiver: “Were [the challenged provision] a

complete ban on all Union political speech,” the court

wrote, “we might well hold that the public interest in

allowing and hearing such speech outweighs the

public interests in enforcing the waiver.” Id. at 891.

But because the agreement served important public

interests and imposed only a “relatively narrow

limitation” on the union’s political speech—an ex post

disincentive to speak on a narrow category of

legislation—the Ninth Circuit held its waiver was

enforceable. Id. at 892.

B. NAF also fails to rebut Petitioners’ arguments

that the lower courts erred by finding and enforcing a

blanket waiver of core First Amendment rights. NAF

does not even try to argue that the lower courts

fulfilled their duty to “‘indulge every reasonable

presumption against waiver’ of fundamental

constitutional rights.” Johnson v. Zerbst, 304 U.S.

458, 464 (1938). Nor does it contend with Overymyer,

in which this Court did not enforce a signed waiver

agreement until satisfied that parties were “aware of

the significance of” the agreement, and that it was

“not a case of unequal bargaining power or

overreaching,” nor “a contract of adhesion.” D.H.

Overmyer Co. Inc., of Ohio v. Frick Co., 405 U.S. 174,

186 (1972); see Pet.21-22.

NAF’s remaining attempts to bolster the finding

of waiver fail. 2 It omits altogether the fact that the

disputed exhibit-space agreement, with only a general

reference to “injunctive relief” covering nearly twenty

paragraphs of terms, does not reference injunctions

against publication. See Pet.11. But a party cannot

“clearly and affirmatively consent” to the waiver of its

constitutional right against prior restraint, Janus v.

AFSCME, 138 S. Ct. 2448, 2486 (2018), by signing an

agreement that makes no mention of any injunction

against speech. Indeed, NAF’s primary argument on

waiver is to reiterate the lower courts’ conclusion that

as long as Petitioners consciously signed these form

agreements, courts have nothing else to consider.

BIO.21-22. That argument contradicts this Court’s

precedent and falls well short of a “clear and

2 NAF does not dispute that whether a party waived a

constitutional right is a question of federal law. See Pet.20.

compelling” showing. Curtis Pub. Co. v. Butts, 388 U.S.

130, 145 (1967).

As to the enforceability of a waiver, NAF largely

retreats to defending the lower courts’ assessment of

the accuracy and newsworthiness of Petitioners’

speech, particularly their conclusion that Petitioners

had published “misleadingly edited videos,” leveled

“unfounded assertions … of criminal misconduct,” and

lacked “journalistic integrity.” App.113-14. NAF

defends this overreach as a judicious weighing of the

public interest. BIO.30-31; but see Pet.31-32. It also

observes that Petitioners “have not been enjoined

from engaging in the ‘profound national debate’

surrounding abortion.” BIO.30 (citing Pet. 24-25). But

the First Amendment does not tolerate government

dictation of the tools or sources with which citizens

may enter public debate—least of all through targeted

acts of censorship. None of NAF’s arguments excuses

the lower courts’ erroneous waiver of core

constitutional guarantees. Pet.20-28. 3

NAF repeatedly mischaracterizes the content of

Petitioners’ speech and other facts relevant to Petitioners’ legal

arguments. For example, NAF contends that Petitioners’ video

footage was “misleadingly edited” and portrayed “manipulated

dialogue.” BIO.1, 6. Curiously, though, NAF never brought a

defamation claim, and neither did the plaintiffs in the related

case cited in NAF’s opposition. See BIO.10; cf. Planned

Parenthood of Greater Tex. Fam. Plan. & Preventative Health

Servs., Inc. v. Kauffman, 981 F.3d 347, 380 (5th Cir. 2020) (en

banc) (rejecting charges that related CMP videos were

“deceptively edited or otherwise unreliable”). NAF also portrays

the events Petitioners attended as secret, tightly controlled

III. No other obstacles impede the Court’s

review.

Finally, NAF offers baseless claims of forfeiture

and a distorted picture of the facts to paint this case

as a “poor vehicle” for the Court’s review. BIO.35. To

the contrary, there are no obstacles to review of the

lower courts’ evisceration of the First Amendment’s

fundamental protections: the freedom to speak on

matters of profound public importance in “‘an

uninhibited

marketplace

ideas’”

without

“government … interfere[nce].” 303 Creative LLC v.

Elenis, 143 S. Ct. 2298, 2303 (2023) (quoting McCullen

v. Coakley, 573 U. S. 464, 476 (2014)).

A. NAF’s reflexive answer to nearly all of

Petitioners’ arguments is to suggest they are forfeited,

e.g., BIO.2, 23, 24, 27, but even a cursory review of the

record shows otherwise. All of Petitioners’ arguments

were briefed extensively in the Ninth Circuit. See, e.g.,

Dkt. 22 (Opening Brief of Defendants-Appellants) at

27-35 (“The injunction is a prior restraint on protected

speech in violation of the First Amendment.”); id. at

30-34 (“Defendants did not waive their First

Amendment rights by signing the exhibit-space

agreement.”);

id.

34-35

(“[P]ublic-policy

considerations weigh against enforcement” of any

waiver). Petitioners likewise pressed these same

meetings, when in reality they were garden-variety trade shows

with exhibitors and other attendees mingling in a hotel ballroom

in large numbers. Cf. Br. for Missouri, at 14 (“Communications

at trade conferences (which are necessarily industry-wide

affairs) are hardly the type of information that is generally

recognized as the most private.”).

arguments throughout this case, including at the

summary-judgment phase. 4

NAF is particularly wrong to suggest that

Petitioners forfeited their argument that any putative

waiver is unenforceable as a matter of law. NAF repackages Petitioners’ argument as one that the

district court “abused its discretion,” and then points

to the Ninth Circuit’s observation in a footnote that

Petitioners had not challenged the injunction under a

fact-bound, abuse-of-discretion standard. BIO.27; see

App.4 n.3. But the errors of law Petitioners identify

would necessarily constitute abuse of discretion. See

McLane Co. v. E.E.O.C., 581 U.S. 72, 81 (2017). And,

in all events, Petitioners plainly raised the same

argument below, discussing the Ninth Circuit’s

precedent on the issue. Dkt. 22, at 34-35 (citing

Leonard, 12 F.3d at 890-92; Davies v. Grossmont

Union H.S. Dist., 930 F.2d 1390, 1396-99 (9th Cir.

1991)).

NAF further asserts that Petitioners “never

argued their waiver was invalid” in the court of

appeals, beyond “a cursory statement that there was

‘no evidence’ they ‘knowingly and voluntarily waived

their constitutional right[s].’” BIO.23. That is

incorrect. Petitioners argued at length that they “did

4 See, e.g., D. Ct. Dkt. 688 (Defendants’ Opposition to

Plaintiff’s Motion for Summary Judgment), at 13-14 (arguing

against waiver and enforceability of any waiver); Dkt. 19, at 1719, NAF v. Daleiden, No. 16-15360 (9th Cir. April 18, 2016)

(similar, on appeal of preliminary injunction); Petition for Writ

of Certiorari, Daleiden v. Nat’l Abortion Fed’n, No. 17-202, at 1719, 2017 WL 3393651 (U.S. Aug. 3, 2017) (similar).

not waive their First Amendment rights by signing

the exhibit-space agreement.” Dkt. 22 at 30-34.

NAF also argues that because Petitioners did not

seek certiorari on the lower courts’ rulings on issue

preclusion, based on the same district court’s factual

findings in PPFA, “that alone” is “dispositive” of the

case. BIO.24. Not so. Without reviewing the lower

courts’ analysis of issue preclusion, the Court can and

should review whether these facts overcome the high

“presumption against waiver.” Johnson, 304 U.S. at

464. 5

Finally, NAF repeatedly emphasizes that this

Court declined to review the district court’s

preliminary injunction. See BIO.1, 14, 34-35. But that

is no barrier to review of the case now that it has

reached final judgment. Indeed, the Court routinely

allows a case to reach a final disposition before

granting review. Cf. Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952, 952 (2022) (Alito, J., respecting the

denial of certiorari) (concurring in denial “because the

preliminary posture of the litigation would complicate

[the Court’s] review”). Now that the lower court

proceedings are completed, the Court can review the

5 Petitioners have also sought certiorari in the parallel

PPFA case, which involves another group’s claim for money

damages arising out of the same speech at issue here. See Center

for Medical Progress v. Planned Parenthood Federation of Am.,

No. 22-1168 (U.S. filed May 30, 2023). Given the substantial

overlap between the facts and certain issues in the cases, the

Court may wish to consider the two petitions simultaneously.

weighty constitutional issues implicated by this case

on a full record from a final judgment.

CONCLUSION

This Court should grant certiorari.