Saturday, August 01, 2015

Interesting analysis by Prof. Volokh....

...concerning the prior restraint against showing the Planned Parenthood videos.

If this was a liberal group trying to out some shenanigan by a business - let's say dumping toxic waste in a community water supply - I suspect that the court would find that different kinds of speech are entitled to different kinds of protection. Thus, while NDAs might be sufficient to override the minimal First Amendment concern about business speech - for which proposition there is Supreme Court authority - when we are talking about a matter of public concern, the Court cannot enforce an NDA since that would violate the absolute bar of the First Amendment vis a vis a core concern of the First Amendment.

Of course, this is not that situation, so I suspect that analysis will never see the light of day.

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