National Abortion Federation v. Center for Medical Progress

Background

Defendants had long been barred by court orders from publishing or disclosing recordings and other information obtained during National Abortion Federation’s 2014 and 2015 meetings. The court later entered a permanent injunction that prohibited publishing or disclosing recordings or confidential information from those meetings, required covered materials to be turned over to designated counsel, and limited access to those materials.

The permanent injunction followed the court’s summary judgment for National Abortion Federation on a breach-of-contract claim. The claim was based on provisions in exhibitor and confidentiality agreements concerning legitimate business interests, truthful representations, and a prohibition on recording at the meetings. The injunction was affirmed in full by the Ninth Circuit.

In March 2024, David Daleiden testified before Congress. During the hearing, edited clips from recordings made at the National Abortion Federation meetings were played. Daleiden also identified people shown in the clips by affiliated organizations, job titles, geographic location, or, later, name. National Abortion Federation alleged that the defendants then published the clips and related information on their website and social-media channels.

Request for Contempt

The court ordered the defendants to remove or block access to covered recordings and information from websites and social-media channels they controlled or could post to. It also set a hearing to consider contempt sanctions or other remedies. The court clarified that the order covered all recordings and information obtained from, or as a result of defendants’ presence at, the 2014 and 2015 meetings, even if the materials had been produced to Congress or publicly disclosed.

The evidence showed that the recordings reposted by the defendants were clips shown during the congressional hearing or released through Congresswoman Marjorie Taylor Greene’s YouTube channel. Daleiden stated that he learned the identities of people shown in the clips from publicly available information and research separate from information obtained at the meetings.

Paragraph 1 of the Permanent Injunction

The court denied National Abortion Federation’s request for an order finding David Daleiden and the Center for Medical Progress in contempt for violating the injunction’s ban on publishing or disclosing covered materials. The court concluded that the defendants had republished recordings officially shown or released by Congress after Congress received them under a facially valid subpoena. That subpoena and Congress’s official public release of the recordings broke the chain between the defendants’ earlier wrongful conduct and their later republication.

The court held that, in these limited circumstances, the permanent injunction did not prevent the defendants from republishing or commenting on the recordings or information publicly released by Congress. It also concluded that Daleiden’s subsequent commentary did not violate the injunction because the evidence indicated that he used identifying information obtained from sources outside the National Abortion Federation meetings.

The court cautioned that the result was narrow. It stated that the analysis could differ if the materials had been leaked from Congress or another source rather than officially released. The court also criticized the defendants for deciding on their own that republication was permitted instead of first meeting and conferring with National Abortion Federation and seeking clarification.

Paragraph 2 of the Permanent Injunction

National Abortion Federation separately challenged Daleiden’s access to covered materials, including alleged access through cloud storage and a computer provided by criminal defense attorneys. Based on an order by Judge Hite and Daleiden’s declaration, the court found no evidence that any defendant was violating paragraph 2 of the permanent injunction.

The court nevertheless ordered the Dhillon Law Group to file, within five days, a docket notice identifying the current criminal defense counsel in People v. Daleiden who had access to the covered materials.

Disposition and Limits on Republication

The court did not find the defendants in contempt for violating the permanent injunction and would not prohibit them from republishing the specific recordings or clips publicly shown or released by Congress in March 2024. The court limited that permission to materials produced to Congress under the 2015 subpoena and then publicly shown or released by Congress.

Materials produced to Congress but not publicly shown or released remained protected. Defendants could not publish unedited versions that revealed faces, name tags, or other identifying information concealed in the congressional versions. Materials obtained from the 2014 and 2015 meetings but not turned over under the 2015 subpoena, as well as materials produced under other subpoenas, also remained protected.

The defendants remained required to notify National Abortion Federation and the court if a government entity subpoenaed covered materials. They could not voluntarily comply with such a subpoena without first giving that notice. The court also directed them to seek clarification before deciding that disclosure by a third party or another event removed materials from the injunction.