Bench Memos

Law & the Courts

NAF v. CMP: Alleged Privacy Interests

More on this case: As the Center for Medical Progress’s brief outlines, in order to win a preliminary injunction against CMP’s release of additional information from its undercover investigation, the National Abortion Federation would have to meet the high bar of showing that it is likely to succeed on its legal claims and that denial of an injunction would threaten it with irreparable injury. Central to both prongs of the inquiry is how to weigh the public interest in CMP’s First Amendment speech on matters of public concern against any privacy interests of NAF and its members.

Federal district judge William H. Orrick III (an Obama appointee) noted these competing interests in his own brief to the Ninth Circuit earlier in this case. (Orrick submitted a brief in response to defendants’ petition for writ of mandamus on a discovery order.) In that brief, Orrick told the Ninth Circuit that because he had not yet received the materials that CMP might make public, he was “in the dark” as to whether CMP might publish information that discloses “NAF members’ addresses and other personal information.” In its brief, CMP explains (p. 56) that the information now in Orrick’s hands shows that it “did not obtain, or even seek to obtain, any NAF members’ addresses or other personal information.” So, consistent with his representations to the Ninth Circuit, Orrick ought to find it a simple matter to deny NAF’s motion for a preliminary injunction.

Addendum: Here’s a letter that the Reporters Committee for Freedom of the Press sent to Judge Orrick to emphasize the strong First Amendment interests that weigh against injunctive relief barring speech. ​

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