AFT Michigan v. Project Veritas et al

Filing 64

OPINION and ORDER Denying Plaintiff's 61 Emergency Motion for Temporary Restraining Order. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AFT MICHIGAN,
Plaintiff,
v.

Civil Case No. 17-cv-13292
Honorable Linda V. Parker

PROJECT VERITAS, a foreign
corporation, and MARISA L. JORGE,
a/k/a MARISSA JORGE, a/k/a
MARISSA PEREZ,
Defendants.
_______________________________/
OPINION AND ORDER DENYING PLAINTIFF’S EMERGENCY
MOTION FOR TEMPORARY RESTRAINING ORDER (ECF NO. 61)
Plaintiff, AFT Michigan (“Plaintiff”), initiated this lawsuit against
Defendants Project Veritas (“Defendant PV”) and Marisa L. Jorge, a/k/a Marissa
Jorge, a/k/a Marissa Perez (“Defendant Jorge”) in state court on or about
September 28, 2017. (ECF No. 1 at Pg ID 1.) On October 6, 2017, Defendants
removed this case to federal court. (Id.) Presently before the Court is Plaintiff’s
Emergency Motion for Temporary Restraining Order, filed May 4, 2018. (ECF
No. 61.) Defendants filed a response on May 7, 2018. On May 7, 2018, this Court
held a telephone conference. For the reasons stated below, the Court finds that
Plaintiff has not met its burden to warrant a temporary restraining order.

A court must balance four criteria in deciding whether to issue a temporary
restraining order:
(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury without
the injunction; (3) whether the issuance of the injunction would cause
substantial harms to others; and (4) whether the public interest would
be served by the issuance of the injunction.
Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir. 2013) (quoting Hunter v.
Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011)) (brackets
omitted). Plaintiff has not presented any new evidence to permit the Court to issue
an injunction prohibiting Defendants from publishing any documents or videos it
has in their possession. Plaintiff refers the Court to statements Defendant PV
founder James O’Keefe made where he states he is in possession of videos and
documents relating to AFT that will be released this week. However, these recent
statements are no different than the statement Mr. O’Keefe previously made that
was the subject of the prior motion for injunctive relief. (See ECF No. 7 at Pg ID
121.) Strikingly, Plaintiff’s focus is on video or documents Defendant Jorge may
have taken while she was an intern with Plaintiff. However, Plaintiff terminated
Defendant Jorge’s internship almost a year ago, and no video or documents have
been published relating to Plaintiff, even after the Court denied Plaintiff’s first
motion for injunctive relief, which was almost five months ago. Nothing in

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Plaintiff’s recently filed motion for injunctive relief changes the Court’s analysis
on Plaintiff’s claims. (See ECF No. 46.)
Furthermore, Plaintiff cannot show that its commercial interests are more
fundamental than Defendants’ First Amendment right1. As the Court stated in its
Order dated December 27, 2017:
The United States Supreme Court noted:
Although the prohibition against prior restraints is by no
means absolute, the gagging of publication has been
considered acceptable only in ‘exceptional cases.’ Even
where questions of allegedly urgent national security, or
competing constitutional interests, are concerned, we
have imposed this ‘most extraordinary remedy’ only
where the evil that would result from the reportage is
both great and certain and cannot be mitigated by less
intrusive measures.
CBS v. Davis, 510 U.S. 1315, 1317 (1994); see also Proctor &
Gamble v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“The
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During the telephone conference, Plaintiff referred the Court to Doe v. Boland,
698 F.3d 877 (6th Cir. Nov. 9, 2012) to support its claim that when defendant
commits a crime, there is no protection under the First Amendment. In Doe, the
parents of children whose images were downloaded from a stock photography
website and used as images for child pornography sued under two child
pornography statutes. In rendering their decision, the Sixth Circuit stated, “[n]ot
all speech, whether verbal or visual, receives First Amendment protection.
Obscenity, defamation, fraud, incitement and solicitation of crime are all examples
of communication for which the speaker must take responsibility and from which
the First Amendment offers no sanctuary.” Id. at 883. An important distinction is
that the Sixth Circuit found that child pornography overwhelmingly outweighs any
expressive interest. In this case, Plaintiff has not made a showing that their
commercial interest outweighs Defendants’ First Amendment right, even assuming
Defendants engaged in illegal conduct.
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private litigants’ interest in protecting their vanity or their commercial
self-interest simply does not qualify as grounds for imposing a prior
restraint.”); [Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 751 (E.D.
Mich. 1999)]; LL NJ, Inc. v. NBC-Subsidiary (WCAU-TV), L.P., No.
95-4078, 2006 U.S. Dist. LEXIS 77431, at *4 (E.D. Mich. Oct. 6,
2006).
(ECF No. 46 at Pg ID 1538.) Further, the Sixth Circuit “has held that
allegedly improper conduct in obtaining the information is insufficient to
justify imposing a prior restraint.” See e.g., Murray Energy Holdings Co. v.
Mergermarket USA, Inc., No. 2:15-cv-2844, 2016 U.S. Dist. LEXIS 79183,
at *27-28 (S.D. Ohio June 7, 2016) (citing Proctor & Gamble Co., 78 F.3d
at 225 (“Weeks passed with the ‘gag order’ in effect, while the court
inquired painstakingly into how Business Week obtained the documents and
whether or not its personnel had been aware that they were sealed. While
these might be appropriate lines of inquiry for a contempt proceeding or a
criminal prosecution, they are not appropriate bases for issuing a prior
restraint.”)). “Only when ‘publication [would] threaten an interest more
fundamental than the First Amendment itself’ is such a restraint justified.”
Proctor & Gamble Co., 78 F.3d at 225. Therefore, the Court denies
Plaintiff’s emergency motion for temporary restraining order. (ECF No. 61.)
Accordingly,

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IT IS ORDERED, that Plaintiff’s emergency motion for temporary
restraining order (ECF No. 61) is DENIED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 8, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 8, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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