1. Marty Lederman - December 7, 2006 at 10:06 pm

   Heidi: Doesn’t this case depend on the nature of the promise the Borat producers made to these dupes — i.e., to the terms of the contract, if any?

   If the Borat folks made no promises — or no representations that there would not be U.S. broadcast orrevelation of names, anyway — then the plaintiffs could hardly prevail on their privacy tort claim, since they effectively consented to what happened.

   However, if, as alleged, the producers promised not to broadcast the scene here in the U.S. and not to reveal the students’ names — or perhaps even if they induced plaintiffs’ “consent” by plying them with liquor — then I think the defendants wouldn’t have much of a First Amendment claim, even if the film is of “public importance” (which is by no means certain with this Court). Or so cases such as Cohen v. Cowles and Seattle Times would indicate. As Seattle Times suggests, even an injunction might be permissible if the information (the film) was obtained pursuant to a promise not to broadcast in the U.S. Holding someone to performance of a contract is generally not subject to First Amendment challenge, even when their end of the contract was a promise of “silence.”

   It appears that the producers and studio are prevailing here not under the First Amendment, but because the plaintiffs signed a waiver form that superseded previous understandings and contracts between the parties. See http://writ.lp.findlaw.com/hilden/20061129.html. Again, if that waiver is given legal effect, and the plaintiffs thus *agreed* that the film could be used as it has been, then they probably lose for failure to state a claim, wholly without regard to any constitutional defense.

2. Heidi Kitrosser - December 7, 2006 at 11:11 pm

   Hi Marty! You’re right, of course, that the success of any contract claim will depend entirely on the nature of the contract. I’m just referring to what would happen on a potential First Amendment defense front if there is a solid contract claim. But certainly, the plaintiffs’ case could fail for failure to state a contract claim alone if there’s an enforceable waiver provision.

   But in the case that there is an otherwise enforceable contract and a First Amendment claim is raised against prior / future restraints, you do raise a really important point that I was remiss in not raising earlier. I think that there’s a real tension in the case law between cases like Bartnicki – in which the Court refuses to buy that ordinary criminal laws and/or gov’t. employment conditions obliterate First Amendment concerns — and cases like Cohen that suggest without much analysis that free speech implications might not bar, say, an ordinary contract claim. Of course, one could argue that the two lines of cases are totally distinguishable because in cases like Cohen courts are just enforcing private agreements. But, if I remember correctly, the contract / speech line of cases don’t rest on that front, but rest instead on the notion that the First Amendment is not a defense to generally applicable civil & criminal laws (such as the doctrine of estoppel in the Cohen case). And I believe that in Seattle Times the Court also made a point of noting that the speech infringement was not significant because other means of obtaining the same information existed.

   So two points, I guess: to the extent that one cites cases like Cohen for the proposition that the First Amendment is not a defense to generally applicable laws (including generally applicable common law contract principles), cases like Bartnicki seem to undercut that substantially. (As would the pretty widely cited doctrine of applying intermediate scrutiny to general laws that incidentally effect speech). The stronger point is that enforcing a contract is merely acceding to the wishes of private parties, not taking state action to bar speech. I agree that that’s tough to overcome, but I think it’s possible on a couple of fronts. First, that the state action of restraining publication, particularly of restraining publication of information already widely disseminated to the public, is extreme / active enough to transcend mere facilitation of a private agreement. Second a hybrid of contract interpretation and the constitutional concerns: to the extent that there are some constitutional concerns about a possible prior restraint, any ambiguity in the contract should be construed against restraint.

   And of course, there’s always the distinctions between the existng case and discrete fact patterns like Cohen & Seattle Times. Both were pretty quirky on their facts, if I recall. In Cohen, I recall that there were speech interests on both sides (the press on the one hand for disseminating the informer’s name & the informer’s on the other hand in being able to rely on agreements with the press in giving them information) & in Seattle Times we were dealing with a court order regarding disseminating information obtained by court facilitated discovery.

   Again, though, you’re right that the somewhat quirky contract cases, combined with the private actor question, does make this a more complicated question than I first suggested.

   Oh, one more thing — I think there’s an interesting parallel between the case law dichotomy that I describe above (btwn. cases in which the court says that generally applicable laws don’t raise free speech concerns and those in which they clearly see such concerns raised) in the government employment context. In Garcetti, for example, the Court suggested that restrictions on talking about work can’t be made a condition of gov’t. employment as long as the speech about work occurs outside of work! But then in cases like Snepp the Court, mirroring its approach in Cohen, treated an agreement with the gov’t. employer that impacted future publications as a mere contract problem. (Of course Snepp had the complication of involving national security, but interestingly the Court treated it pretty much as an unproblematic contract case because of the existence of the agreement).

   Sorry for the long answer … I need an editor.

3. Heidi Kitrosser - December 7, 2006 at 11:21 pm

   p.s. — Sorry, there’s one point that I forgot to mention in my focusing on the contract cases that Marty raised. I haven’t seen the complaint by the plaintiffs, but I assumed from the story that they were basing their case partly on some sort of common law or statutory fraud claim/s. To the extent that that’s the case, the “pure private action” question is much less of a problem for a First Amendment defense, I think. At that point we’re much closer to Bartnicki-land and further from the contract / pure private action theories.

4. Marty Lederman - December 7, 2006 at 11:27 pm

   Heidi: Cohen v. Cowles, Seattle Times, Snepp, et al., are undertheorized. I agree that it’s too simplistic simply to say that they involve “generally applicable” laws that only single out speech incidentally. See Hustler v. Falwell (although I think the analogy isn’t perfect).

   The best way to view these cases, perhaps, is that in all three (Cohen, Seattle Times, Snepp — you could add, e.g., Aguilar and others), the “speaker” only obtained the “information” in the first instance by virtue of promising to keep it secret. A vow of confidentiality, in other words, was the necessary predicate of the speaker being given access to the information in the first place. That would be the case in Borat, too, *if* the contract of (partial) silence were otherwise valid and operative.

5. Heidi Kitrosser - December 7, 2006 at 11:40 pm

   Hi Marty. That’s a very fair interpretation. I do think that an interesting constitutional question that could be raised if we truly had a solid and otherwise enforceable contract here is whether the remedy is so drastic (particularly in light of existing, widespread dissemination that by now has caused all kinds of public debate) as to involve the state in a First Amendment implicating prior restraint as opposed to mere facilitation of a private agreement.

   Also, assuming that the plaintiffs / dupes have raised both valid contract claims &, say, statutory fraud claims based on the contractual agreement and breach, I wonder if courts would split the baby, deeming the former Cohen v. Cowles type claims (and therefore meritorious) & the latter Bartnicki / Falwell type claims (and therefore losers).

6. Kaimi - December 9, 2006 at 4:21 pm

   Heidi,

   As I noted in a prior post, I’m reluctant to sign on to such a broad theory, at least in part because I think there are genuinely harmful video companies. The most obvious is the “Girls Gone Wild” franchise, which follows roughly the same pattern as Borat: Give alcohol to college students, have them sign waivers they probably don’ really understand, film their activity, and ultimately distribute images that many of the participants later view as harmful.

   Is there a good argument for dismissing the Borat suit that would not also bar suits against the scum who make Girls Gone Wild and such?

7. Heidi Kitrosser - December 9, 2006 at 4:37 pm

   Hi Kaimi! I suspect that the only real difference in doctrinal application based on the content of say, Borat, versus a Girls Gone Wild tape, would come in the type of weighing that the S.Ct. did in Bartnicki, and that I describe in my initial post. Although courts are inconsistent about this, and certainly court-discerned “speech value” is not unproblematic, the business of weighing privacy of the participants, anti-fraud concerns, etc. against the public / political value of the speech is not unprecedented. So I think that’s the most straightforward way in which one could bring in a content distinction between Borat (call it political satire) and Girls Gone Wild (call it soft porn).

   One other thing that comes to mind: As per the exchange above between Marty Lederman and myself, there certainly are arguments to be made that any contract-based claims are just about enforcing private agreements and have no bearing on the First Amendment. But if that’s the case (if it’s just a pure contract claim) then I don’t really see a ground for distinction based on the respective content of the works produced – at that point, I imagine it would just come down to a fact-specific analysis of whether the contract was valid in each case, whether the contracts limited distribution rights, etc. (Though I’m no contract person so maybe I’m missing a contract law argument about public policy or something. Plus there’s the possibility of a contract “constitutional avoidance” argument like I mention in one of the responses to Marty, in which case perhaps the content difference comes into play again).

   As I also mentioned in the exchange with Marty, I haven’t seen the complaint but I wouldn’t be surprised if the plaintiffs raise extra-contractual issues such as fraud or emotional distress claims under statute or common law. If that’s the case then the First Amendment analysis I mention in the post and in the first paragraph here more likely kicks in.

8. Heidi Kitrosser - December 9, 2006 at 4:40 pm

   p.s.: One day I’ll actually get all of my thoughts into one post and won’t have to follow with a p.s.! But in the meantime, I do have one more thought that I didn’t include in that last comment … To the extent that the degree of privacy infringement matters (which surely is the case in a 1st Am. weighing context, I don’t know how much if at all it matters in the contract context), I would imagine that the women from Girls Gone Wild have a better argument for privacy infringement: taking off one’s clothes while drunk and being filmed versus spewing one’s thoughts while drunk and being filmed.

9. Howard Wasserman - December 10, 2006 at 2:46 pm

   Marty’s approach suggests the germ of an interesting distinction in how the First Amendment interacts with private-law areas such as contract and tort, a distinction that turns on the timing of the private harm with respect to the expression.

   The question is whether the private interaction and harm predates or postdates the expression. Contract issues generally arise prior to the expression: Some private agreement antedates the expression and, perhaps as Marty suggests, makes the expression possible. On the other hand, tort issues generally arise after the expression: Usually some harm arises from the exression itself and without regard to anything that occurred prior to it. Bartnicki governs the latter, Cowles the former.

   Of course, some torts could occur pre-speech, notably Heidi’s suggested claim that the Borat (or GGW) producers fraudulently induced the subjects to appear in the videos. Because the tortious act occurred pre-expression (and made the expression possible), Cowles controls. On the other hand, note that the subjects would hit a First Amendment wall if they brought public disclosure or I/I/E/D claims for the way they were depicted in the videos.

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