On Wednesday, a Los Angeles Superior Court judge granted a temporary restraining order (TRO) against the release of Center for Medical Progress’ videos featuring StemCell Express employees who work with Planned Parenthood in obtaining fetal tissue for medical research. Presumably, the videos show officials discussing receipt of entire fetuses which could implicate the trade of live specimens. The TRO is only in place until August 19, 2015, when the Center for Medical Progress will respond to the action.

On Friday, a federal judge in San Francisco granted another TRO blocking another video release of executives at National Abortion Federation. [Bonus: The federal judge is an Obama appointee who is a donor and bundler for the Obama campaign and committees supporting him]. The Center for Medical Progress supposedly has video taken at a conference sponsored by The National Abortion Federation, according to David Daleidon, the Center for Medical Progress’ investigative operative. The Center for Medical Progress will respond to this TRO by August 3, 2015.

Here is David Daleidon discussing the investigation with Alisyn Camerota at CNN, who puts on the persona of “tough” interviewer (she feels compelled to make the point several times that Planned Parenthood denies it has done anything wrong – well, that should settle it, right?):

The restraining orders are based on the weighing of interests – in these cases the judges have decided that if released improperly (without legal right to do so, and perhaps even if they do have the legal right to do so) the harm done to the claimants would be so damaging as to be irreparable.

In fact,

The National Abortion Federation . . . says release of any audio or video would put members in danger. “The safety and security of our members is our top priority,” Vicki Saporta, association president and CEO, said in a statement. “That security has been compromised by the illegal activities of a group with ties to those who believe it is justifiable to murder abortion providers.”

This is an interesting juxtaposition of interests – the abortionists and tissue harvesting specialists may be harmed if what they do everyday is exposed. How about a restraining order protecting unborn babies? Well, that would be ridiculous.

As for the court proceedings, TROs are granted to hold the status quo while the court can do further investigation, potentially even trial, until it can determine whether the restrained action may be undertaken. The responding party – the Center for Medical Progress will present its side of the story, and may convince the judges to lift the protection orders which restrain speech.

The main argument behind the reason for the TROs is the claim that the videos taken by Center for Medical Progress may have been obtained illegally. States have different laws regarding the consent needed from people being recording. California law states that if the recording takes place over a telephone or in a confidential environment, both parties need to consent to the recording. However, if the recording takes place in an environment where there is no reasonable expectation of privacy, the recording may be legal. So far the recordings we’ve seen have taken place in restaurants, and Planned Parenthood offices with several people present and open office doors. Those seem to be legally obtained within these rules. What’s currently being withheld are videos supposedly showing people in leadership in the “industry” discussing live specimens, and various attendees in meetings at a conference. Reportedly the information gained by the attendees was supposed to be kept confidential, so the application of the law may get a bit more complicated here.

Orders restricting speech are generally disfavored (this is called “prior constraints” – you can publish, but then you can be punished), except when to protect certain confidential information. Here, the restraint seems to be based on contract – people signed a document agreeing to keep the information confidential – which can more easily be upheld (rather than trying to keep libelous speech restrained, for instance). But even these agreements may be held void where the information is of public interest, of which conspiracy to avoid federal law certainly qualifies. Eugene Volokh has an excellent summary of the legal issues here. Even more detailed analysis of the proceedings here from Popehat.

As to the issue of illegal recording, here is the California law summarized:

California Law Penal Code § 632, enacted under the California Invasion of Privacy Act, makes it illegal for an individual to monitor or record a “confidential communication” whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device. California is known as a “two-party” state, which means that recordings are not allowed unless all parties to the conversation consent to the recording.

Under Penal Code § 632(c), “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

A violation of Penal Code § 632 can lead to a fine of up to $2,500 and/or imprisonment for up to a year (misdemeanor). In addition, the violator may be subject to civil liability in the amount of $5,000 or three times the amount of any actual damages sustained as a result.

The official language of the code can be found here. Further, it is only the person making the recording that can be held liable for such illegality. If the information is leaked to an unconnected third party and then disseminated publicly, there is no liability for that person.

Where the legality of the recording really matters is more in the court of law, rather than in the court of public opinion. If the videos were to be used in a lawsuit, they could be eliminated as evidence if they were obtained illegally. Those recorded may also have a cause of action for an invasion of privacy. However, because these publically distributed videos have already shed light on the ethically challenged practices of Planned Parenthood, the concern for the legality of them is really a red herring being used as one mode of attack to convince the courts that the videos must be thrown down the memory hole. As the title of the action indicates, this is only a temporary obstacle for the public to learn more about the immoral practices taking place inside Planned Parenthood offices. The truth will out.