In the Supreme Court of the United States

March Term, 2016

WILLAMETTE RIVER READER PUBLISHING, PETITIONER

v.

JANE DOE, RESPONDENT

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF OREGON

PETITI

ONERS OPENING BRIEF

MICHAEL CROWELL
Counsel of Record
P. Sherman Associates
42 Wallaby Way
Suite 2400
Cascadia 97204
(503) 111-1111

Counsel for Petitioner

PETITION FOR CERTIORARI FILED FEBRUARY 22, 2016
INTRODUCTIONSUMMARY OF ARGUMENTS
The question before the Court today is of whether or not the publication of names of
alleged abortion patients in a newspaper advertisement amounts to an abuse of the First
Amendment right to free press, and whether or not such an abuse constitutes speech that may be
censored by an act of State or Federal Government.
An anti-abortion group, dubbed The Truth Tellers, started placing regular
advertisements in my clients newspaperthe Willamette Valley River Readeraround six
months ago. For most of the six months, the ads were relatively benign, though concerning a
mature subject. The issue of this case was sparked when the group submitted an advertisement
that listed the alleged names of women who received abortions at a local family planning clinic.
The ad named the women as the murderers of our children It is your constitutional right to let
them know how you feel about what they have done. Respondent, Jane Doe, filed a restraining
order against the the newspaper. The restraining order effectively halts the publication of the
paper until it agrees not to publish the ad. Since the restraining order is an act of Government, the
cessation of the papers publishing amounts to prior restraint on the freedom of the press,
which the Supreme Court has long held to be unconstitutional. The main basis of this argument
stems from the First Amendment of the Constitution, which provides that Congress shall make
no law abridging the freedom of speech, or of the press. The First Amendment was
incorporated to apply to actions by the States, as well as the Federal Government, in Near v.
Minnesota, 283 U.S. 697 (1931). The Court also held in this case that prior restraint is
unconstitutional, as per the First Amendment. The writings many of the Nations Founders
establish the main intent of the guarantee to free press as the prevention of acts of prior restraint.
The Court has long held a preferred position with maintenance of free speech and press. The
Court holds in favor of free speech and press with almost unwavering reliability. Any system of
prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The Founders
and the Court also display some support of the free press on the basis of free press being vital to
the success of a free nation. There are very few exceptions for when the Court may hold against
free speech or press, and such situations are well-defined in doctrines of the Court. The Courts
current criteria for censoring speech require that the speech in question must present the danger
of imminent unlawful action. Brandenburg v. Ohio, 395 U.S. 444 (1969). Such criteria is rarely
implemented, as it is rather narrowly tailored. The speech in question in this case does not fit this
criteria, as it does not provide readers with any resources or plans for any unlawful action, and it
does not invite readers to partake in any illegal activity. Thus, the speech in question does not
present as Constitutionally subject to prior restraint. The Respondent may argue that the
publication of the names of abortion patients is a violation of the Fourth Amendment right to
privacy, but such an argument in this case is entirely invalid, as the Fourth Amendment right to
privacy only protects against intrusions by the State and Federal Governments. Being that the

Willamette Valley River Reader is not a function of state or federal government, abortion patients
may not use the Fourth Amendment right to privacy as a basis to block any publications. The
Respondent may also argue that the submitted at amounts to libel against the abortion patients,
and may well have standing in that regard. But whether or not the Respondent has standing for a
libel charge is of no concern to this Court. This Court is concerned with the issue of prior
restraint of the media, and with issues of Constitutionality. If the Respondent wishes to pursue
libel charges, she is in the wrong Court. Allegations that The Truth Tellers obtained the names of
the abortion patients by breaking into the clinic and stealing patient records may also be a point
of argument. Such an argument also has no standing in this Court, as this Court is not concerned
with the determination of criminal guilt. It also has no standing in this case in that the Court has
held that the publication of illegally gathered documents is itself not illegal and shall not subject
to any prior restraint. New York Times Co. v. United States, 403 U.S. 713 (1971). The Respondent
is still certainly open to pursuing prosecution of The Truth Tellers for the theft of private medical
records, should the theft allegations be found true. Whether or not Ms. Doe wishes to attempt
prosecution of the anti-abortion group is outside the scope of this case, however. The Court has
held that the news media may not be held liable for the publication of stolen data, and thus any
questions regarding stolen information are also of no consequence to the holding of this case.
Due to the Courts long history of upholding free press, to the Respondents lack of standing on
the basis of violent speech, libel, privacy, and stolen information, and the vitality of a free press
to the success of the nation, the Court should reverse the lower courts opinions and hold in favor
of Willamette River Reader Publishing.

ARGUMENT
I.

THE FIRST AMENDMENT GUARANTEE TO FREEDOM OF PRESS IS RELEVANT

IN THIS CASE.
1.The First Amendment provides that Congress shall make no law
abridging the freedom of speech, or of the press.
2.The cessation of the publication of the Willamette Valley River Reader
occurred as a result of the Respondent filing a restraining order against the
newspaper until it agrees not to publish the ad in question. Being that the restraining
order is a function of Oregons State Government, in order for the restraining order
to be in conflict with the guarantee to freedom of press, the guarantee must apply to
acts of State government (not solely to acts of the Federal Government, as it was
originally written). This Court incorporated the right to freedom of press when it
held [T]he statute [of the State of Minnesota] to be an infringement of the liberty
of the press guaranteed by the Fourteenth Amendment. Near v. Minnesota, 283
U.S. 697, 722-723 (1931).

II.

PRIOR RESTRAINT ON THE PUBLICATION OF THE NEWSPAPER VIOLATES THE

FIRST AMENDMENT GUARANTEE TO FREEDOM OF PRESS.
A.
The original intent of the guarantee to the freedom of press is that
instances of prior restraint may no longer occur.
1.In determining the extent of the constitutional protection, it has been
generally, if not universally, considered that it is the chief purpose of the guaranty to
prevent previous restraints upon publication. Near v. Minnesota, 283 U.S. 697, 713
(1931).
2.The reason the writers of the Constitution (and of the First Amendment)
included the provision for free press was because they had experienced life without
it under British colonial rule. As colonists disdain toward the Crown grew, so too
did their affection toward the idea of a free press:
The conception of the liberty of the press in this country had broadened
with the exigencies of the colonial period and with the efforts to secure
freedom from oppressive administration. That liberty was especially
cherished for the immunity it afforded from previous restraint of the
publication of censure of public officers and charges of official
misconduct.

Near v. Minnesota, 283 U.S. 697, 716-717 (1931). Free press provisions started
appearing in the constitutions of certain colonies towards the end of the colonial era.
Referring to the constitution of Massachusetts, Chief Justice Parker wrote:
[I]t is well understood, and received as a commentary on this provision for
the liberty of the press, that it was intended to prevent all such previous
restraints upon publications as had been practiced by other governments,
and in early times here.
Commonwealth v. Blanding, 3 Pick. 304, 313 (emphasis in original).
1.As written by James Madison:
[T]he great and essential rights of the people are secured against legislative
as well as against executive ambition [t]his security of the freedom of
the press requires that it should be exempt not only from previous restraint
by the Executive but from legislative restraint also.
Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. Madison was
the leading spirit in the preparation of the First Amendment. Near v. Minnesota,
283 U.S. 697, 717 (1931). His description of the Amendments intent, and of its
therein contained right to free press, keys to the overall meaning of the Amendment,
and has guided this Court in its interpretation thereof.
B.
This Court has long held that prior restraint contradicts the intention of the
free press provision of the First Amendment.
1.The Court incorporated the right to free press in Near v. Minnesota, 283
U.S. 697 (1931). In the Courts holding, Chief Justice Hughes wrote:
The fact that, for approximately one hundred and fifty years [since 1931],
there has been almost an entire absence of attempts to impose previous
restraints upon publications is significant of the deep-seated conviction
that such restraints would violate constitutional right.
Near, 283 U.S. at 718.
1.Possessing such a deep-seated conviction, the Court has an inherent
disposition against most all incidences of prior restraint. The Court first established
this disposition in 1931. Near. Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its constitutional validity.
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The Court further
demonstrated its disposition in 1963. The Court solidified its opinion on prior
restraint with a third holding of its unconstitutionality eight years thereafter; with
the Court having such a strong conviction about the vitality of a free press, the
Government [T]hus carries a heavy burden of showing justification for the

imposition of such a restraint. Organization for a Better Austin v. Keefe, 402 U.S.
415, 419 (1971).
1.In New York Times Co. v. United States, the Courts most famous support
of a free press, this Court denied prior restraint on the publication of stolen,
classified government documents: the Pentagon Papers. The Papers were illegally
obtained and submitted to the New York Times and the Washington Post, among
other news outlets, for publication therein. Upon the documents submission, the
Federal Government filed suit against the newspapers and placed a temporary
injunction on their publication. New York Times Co. v. United States, 403 U.S. 713
(1971). Justice Black posited in his concurrence that:
[E]very moment's continuance of the injunctions against these newspapers
amounts to a flagrant, indefensible, and continuing violation of the First
Amendment.
New York Times Co. v. United States, 403 U.S. 713, 715. The exact same can be said
for the injunction currently held against the publication of the Willamette Valley
River Reader.
0.A free press is essential to the success of the United States as a free nation.
1.Madison, aforementioned as the main contributor to the preparation of
the First Amendment, reflected:
Had 'Sedition Acts,' forbidding every publication that might bring the
constituted agents into contempt or disrepute, or that might excite the
hatred of the people against the authors of unjust or pernicious measures,
been uniformly enforced against the press, might not the United States
have been languishing at this day under the infirmities of a sickly
Confederation? Might they not, possibly, be miserable colonies, groaning
under a foreign yoke?
Report on the Virginia Resolutions, Madison's Works, vol. iv, 544. Indeed, an
ungoverned press is so integral to the freedom as we know it, that this nation may
have never come to existence without it.
2.Such a truth as is mentioned above was known even before Madisons
time. The people of England first gained access to a free press in 1695, upon the
failure of the Licensing of the Press Act. In response to this newfound liberty, Sir
William Blackstone declared:
The liberty of the press is indeed essential to the nature of a free state
Every freeman has an undoubted right to lay what sentiments he pleases
before the public; to forbid this is to destroy the freedom of the press.

Constitutional History of England, vol. 2, chap. IX, p.4. As it was then in England,
so it is now in the United States. Liberty of the press is most certainly essential to
the freedom of the State; to forbid this is to destroy the freedom of the nation.
D.
This Courts allegiance to the free press, as unwavering as it presents, is
not without bounds.
0.[T]he protection even as to previous restraint is not absolutely unlimited.
But the limitation has been recognized only in exceptional cases. Near v.
Minnesota, 283 U.S. 697, 716 (1931). For example:
When a nation is at war, many things that might be said in time of peace
are such a hindrance to its effort that their utterance will not be endured so
long as men fight, and that no Court could regard them as protected by any
constitutional right.
Schenck v. United States, 249 U.S. 47, 52 (1919).
0.The Court uses certain criteria to decide issues of censorship. Schenck
defines the criteria which issues of speech or press censorship are judged according
to:
The question in every case is whether the words used are used in such a
nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree.
Schenck, 249 U.S. at 52. This holding established the clear and present danger
doctrine: in order for a publication to be legally censored, its content must present a
legitimate danger at the moment of its consumption by a readers eyes. When it
comes to the case now before this Court, the possibility of harassment at [the
Respondents] workplace or in public comes nowhere close to satisfying the clear
and present danger standard. Thus, according to the precedent set by Schenck, the
restraint placed on the Willamette Valley River Readers publication is
unconstitutional. But other doctrines have since been applied to the issue of
censorship and prior restraint. In 1942, the Court held that:
There are certain well defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include [among others] the insulting or
"fighting" words -- those which, by their very utterance, inflict injury or
tend to incite an immediate breach of the peace.
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572. The clear and present
danger and fighting words doctrines obviously differ greatly in scope; while the
former provides room only for very strict interpretation, the latter can be applied in

a multitude of ways. Ms. Doe may try to use this property of the fighting words
doctrine to her advantage, since the content of the enjoined publication clearly does
not satisfy the clear and present danger standards criteria. But that very property
which todays Respondent may well claim earns her damages, is the same property
that is the pitfall of the Chaplinsky standard; because it can be interpreted so
broadly, and because issues of lawespecially issues which reach the Supreme
Court of the United Statesrequire such scrutinizing standards upon which to be
decided, the fighting words doctrine has not once been used as grounds to censor
speech or press. In fact, the only Supreme Court cases in which Chaplinskys
precedent has been a factor, have been cases in which the Courts holding nullified a
prohibitory speech statute, or cases in which the holding resulted in the reversal of a
censorship conviction. See Street v. New York, 394 U.S. 576 (1969); Cohen v.
California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v.
City of New Orleans, 415 U.S. 130 (1974); R.A.V. v. City of St. Paul, 505 U.S. 377
(1992); Snyder v. Phelps, 562 U.S. 443 (2011). The Courts currently accepted
standard for censorship and prior restraint, however, comes from Brandenburg v.
Ohio, 395 U.S. 444 (1969). In Brandenburg, the Court held that:
Freedoms of speech and press do not permit a State to forbid advocacy of
the use of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or
produce such action.
The standard presented in Brandenburg still requires a rather heavy burden of proof
and is narrowly tailored, but not to the degree of severity as that presented in
Schenck. Regardless, when applied to the publication which is the question todays
case, the prior restraint still is not justified. The censored ad informs readers that It
is your constitutional right to let them [the women] know how you feel. While the
ads text certainly intends to illicit some form of response from its reader, no
response in any way, shape, or form may resemble anything close to imminent
lawless action, nor is such action likely to be produced. For most readers, the
response is likely to be that of throwing the publication in a wastebasket, as is the
response of the vast majority of American consumers upon encountering such an ad.
And, as for the few individuals whose response is of an even slightly higher degree
of sophistication, the ad may produce a concerned letter to one or two of the named
women, or even a troubled Facebook post. In all logicality, the publication presents
not the slightest threat to societys peace.
III. THE RESPONDENT MAY HAVE STANDING TO SEEK DAMAGES FOR LIBEL
A.

Libel is defined as written speech which defames another individual.

A.
The Court has limited libels scope, with concern to private individuals,
such that [A] private-figure plaintiff must bear the burden of showing that the speech
at issue is false before recovering damages for defamation. Philadelphia Newspapers,
Inc. v. Hepps, 475 U.S. 767, 779 (1986). The Respondent in todays case may well be
able to prove the ads claim that Ms. Doe is a murderer is false; all she would need is
the medical record from the abortion clinicwhich was reportedly stolenor a witness
testimony from one or more of the doctors at the clinic. If Ms. Doe can prove this, she
will be able to pursue damages via a libel tort.
C.
Appellant, Willamette River Reader Publishing, may not be held liable in
any libel tort, nor may Appellant have burden of proof against libel.
1.This Court has long held that operators of the free press may not be held
responsible for an abuse of this freedom, nor may the freedom of the press be
abridged due to an abuse thereof.
[T]he main purpose of such constitutional provisions is 'to prevent all such
previous restraints upon publications as had been practiced by other
governments,' and they do not prevent the subsequent punishment of such
as may be deemed contrary to the public welfare.
Commonwealth v. Blanding, 3 Pick. 304, 313-314. A free press, while a wonderful
tool for society and individuals, does not come without its misgivings; when there is
freedom, there too shall be the abuse of freedom. The Constitution was written with
this in mind, which is why the issue of dealing with such abuses is left to legislature,
and is why libel exists as an avenue for reparation. Madison, in reflection, described
this situation rather poetically:
Some degree of abuse is inseparable from the proper use of everything, and
in no instance is this more true than in that of the press. It has accordingly
been decided by the practice of the States that it is better to leave a few of
its noxious branches to their luxuriant growth than, by pruning them away,
to injure the vigour of those yielding the proper fruits.
Report on the Virginia Resolutions, Madison's Works, vol. iv, 544. This Court has
held time and time again in agreement with Madison:
The fact that the liberty of the press may be abused by miscreant purveyors
of scandal does not make any the less necessary the immunity of the press
from previous restraint in dealing with official misconduct. Subsequent
punishment for such abuses as may exist is the appropriate remedy
consistent with constitutional privilege.
Near v. Minnesota, 283 U.S. at 720. As described by Madison, the process by which
to seek damages is not before the defamatory speech is published, but after. Ms. Doe

may likely have standing for libel after the ads publication which is when she
should pursue damages. Regardless of whether or not she has standing for libel,
however, Ms. Doe will never have grounds to enjoin the ads publication. This is
due, in part, to the fact that libel is a tort claim, meaning that it is filed in pursuit of
damages, or money. So, by the very nature of the tort, Ms. Doe may not pursue the
enjoinment of the publication, as such enjoinment does not constitute damages.
That she will never have grounds to enjoin the publication of the newspaper, or any
advertisements contained therein, is due in other part to the Constitutions
guaranteed protection of the free press. Indeed, Ms. Doe may pursue libel damages,
but may not bring about the cessation of the Willamette Valley River Readers
publication, neither before nor after the publication of allegedly defamatory
material. Even in the face of allegations of defamatory publications, the Willamette
Valley River Reader may not, under Constitutional law, be made to halt its
publication, whether it be of the entire newspaper or merely contents therein. Chief
Justice Hughes defined this property of the free press in the Courts holding on
Near:
Nor can it be said that the constitutional freedom from previous restraint is
lost because charges are made of derelictions which constitute crimes.
Near, 283 U.S. at 720. So it is said. Freedom always is accompanied by the abuse of
freedom, which, in a proper society, must be, and is, dealt with. But when it comes
to the press, freedom and its evil twin never actually touch; they are always so close
to each other, but never make contact. In the case of Willamette River Reader
Publishing v. Jane Doe, this perfect avoidance of entanglement means that the
Respondent, Jane Doe, has no legal justification for her injunction against the
newspapers publication. This Court has held over and over that prior restraint of the
media is unconstitutional; the Courts holding should follow suit in todays case.
The only legal reason the newspaper could actually be made to halt publication is in
the case of speech which presents the danger of imminent lawless action, and the
speech in the to-be-published advertisement has already been shown to not present
that threat. As such, the Respondents argument is null, the Petitioner is at no burden
to disprove anything, and the legal issue of the case is resolved. The Respondent
still is concerned with a legal issuethe issue of libelbut that is not the issue of
this case. This Court is not concerned with issues of torts, but with issues of
Constitutionality. If Ms. Doe is still concerned with the possibility of libel against
her, she should take that issue to the Clackamas County Circuit Court.
IV. ANY ALLEGATIONS OF STOLEN MEDICAL RECORDS FROM THE CLINIC HAVE
NO LEGAL STANDING IN THIS CASE

0.The publication of illegally gathered material is not illegal, and Willamette River
Reader Publishing cannot be held responsible for the alleged gathering of medical
records in any criminal investigation or subsequent prosecution.
1.This Court held in New York Times Co. v. United States, 403 U.S. 713
(1971) that the publication of illegally obtained, classified government documents is
not illegal, and can not be held subject to any attempts of prior restraint.
Title 18 U.S.C. 793(e) provides that "[w]hoever having unauthorized
possession of, access to, or control over any document, writing . . . or
information relating to the national defense [s]hall be fined not more
than $10,000 or imprisoned not more than ten years, or both.
NY Times Co., 403 U.S. at 720-721. The Court recognized the illegality of the act of
gathering the documents and cited United States Code, wherein defined is the the
punishment for the act of gathering those documents. In the Courts holding, the
illegality of gathering the classified documents was never in question. But the Court
still went on to protect the Times right to free press:
"Nothing in this Act shall be construed to authorize, require, or establish
military or civilian censorship or in any way to limit or infringe upon
freedom of the press or of speech as guaranteed by the Constitution of the
United States and no regulation shall be promulgated hereunder having that
effect.
18 U.S.C. 793 1(b); NY Times Co., 403 U.S. at 722. Thus, even when documents
are gathered so blatantly in violation to existing law, the publication of such
documents is still not subject to restraint. The same issue presents in todays case,
and if the Court should follow precedent, its holding will favor the unrestricted
publication of the Willamette Valley River Reader. Allegations have been made that
the Truth Tellersthe anti-abortion group who submitted the advertisement in
questionobtained the names of the abortion patients when some of its members
broke into the abortion clinic and stole the patients records. The clinic will neither
confirm nor deny whether the listed names were obtained from stolen records, but
polices confirmation that the stolen records match the names in the ad lends much
truth to the allegations. Either way, these allegations are of zero concern to this
Court, as this Court is not concerned with the determination of criminal guilt, nor is
it concerned with issues outside the legal question of this case. The Respondent, Ms.
Doe, may pursue damages against the Truth Tellers in reparation for her stolen
medical info, and she may have standing to do so, but Ms. Doe shall have no
standing against Willamette River Reader Publishing in such a matter, as the
Petitioner did not steal the records, and as it has been established that the
publication of stolen documents is not illegal nor worthy of censorship.

B.
The privilege of privacy between healthcare providers and patients is
comparable to an attorney-client privilege, and this Court has held that the potential for
a broken attorney-client privilege as the result of media publishing shall not be grounds
for censorship of publication.
0.In 1990, this Court denied applications to stay restraining orders which
were enjoining the publication of a recorded conversation between a private
individual and his attorney. Cable News Network, INC. v. Noriega, 498 U.S. 976. In
this case, petitioner CNN obtained recordings of a conversation between criminal
defendant, Manuel Noriega, and his counsel. The District Court submitted an
injunction against CNN, preventing publication of the recordings, such that
Noriegas right to an impartial trial would be preserved. The question of whether or
not CNN could break Noriegas attorney-client privilege was not considered much
in depth by the Court, as the Courts strong prejudice against the restriction of the
press answered yes to that question before it was even asked. Thus, The
application to stay restraining orders is denied. CNN v. Noriega, 498 U.S. 976
(1990). A possible argument by the Respondent could be in the defense of the
provider-patient privilege. The Respondent may try to argue that the publication of
the names of the alleged abortion patients violates this privilege and therefore may
be restrained, but the Court should follow the precedent it set in CNN v. Noriega
and dismiss that argument.
V.

THE FOURTH AMENDMENT RIGHT TO PRIVACY IS NOT A LEGITIMATE

DEFENSE AGAINST THE PUBLICATION OF ALLEGED ABORTION PATIENT
NAMES
A.
The Fourth Amendment provides that The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated. While individuals are guaranteed the right to personal security,
they are only given this guarantee against unreasonable searches and seizures. The
mere publication of names in a newspaper does not amount to neither a search nor a
seizure, so such a defense is void.
E.
The Respondent may then argue that while publication is not a search or
seizure, the alleged theft of medical records is. And they would be correct in such a
statement. But such a statement still does not amount to a legitimate defense, due to the
Courts establishment of the State Action Doctrine, part of which states that the Fourth
Amendment right to privacy is only guaranteed against actions by state or federal
government. The Fourth Amendment does not guarantee personal privacy against
intrusions by private entities.

VI. IMPLIED CONSTITUTIONAL RIGHTS ARE SUBORDINATE TO

CONSTITUTIONALLY EXPRESSED RIGHTS (this could use revision due to the
language of the 9th amendment)
0.*see Penumbral rights (Griswold v. Connecticut 1965), 4th amendment right to
privacy, 9th amendment, balancing judicial philosophy, philosophical judicial
philosophy,
In Gitlow v. New York, 268 U. S. 652, 268 U. S. 666, the Court said:
"For present purposes, we may and do assume that freedom of speech and of the press -- which
are protected by the First Amendment from abridgment by Congress -- are among the
fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth
Amendment from impairment by the States.
The reason the Constitution was written in the first place was to protect citizens from the
Government. It was not written to protect citizens from other citizens. There is indeed an implied
right to privacy which emanates from the Constitution, but such a right cannot be construed as to
protect citizens from invasion by other citizens. The Due Process Clause of the Fourteenth
Amendment has been used to incorporate the 4th amendment right to privacy as to protect
citizens from invasion by both Federal and State governments. The subsequently enacted
Fourteenth Amendment prohibits the States as well from abridging fundamental personal
liberties Griswold v. Connecticut, 381 US 479, 493 (1965). But it does not prohibit citizens
from abridging the fundamental liberties of other citizens. Indeed, the writers of the
Constitution left it to Congressto the peopleto make legislation regarding such issues.
Justice Brandeis described the writers intent in Olmsted v. United States, 277 US 438, 478,
writing that They conferred, as against the Government, the right to be let alone. Indeed, they
conferred such right against the government, but not against each other.
The Ninth Amendment states, The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people. As such, there are other
fundamental rights, not expressly defined by the Constitution, that are retained by citizens. Such
rights are known as penumbral rights, as they emanate from the Constitution. The right to
privacy has been held to exist as a penumbral right. But it only exists as a protection against the
Government, not against other citizens.

CONCLUSION
As I have established, the First Amendment right to Free Press is a quintessential element
of the freedom of this nation. It was written with the intent of prohibiting incidences of prior
restraint of the press. The Courts favor has long fallen on free speech and press, and the Court
hardly ever holds against those freedoms. Such instances in which the Court may hold against
free press exist as defined in the doctrine of imminent unlawful action. Brandenburg v. Ohio,
395 U.S. 444 (1969). The speech contained in The Truth Tellers advertisement in my clients
newspaper does not fit the criteria of inciting imminent unlawful action, and as such is not
speech that can be Constitutionally censored. This alone should be enough to repeal the
invocation currently placed on my clients publishings. The Respondent may still try to defend
the censorship on the basis of the Fourth Amendment right to privacy. While the Fourth
Amendment does protect individuals from intrusions by acts of state and federal governments, as
per the State Action Doctrine of the Fourteenth Amendment, the Fourth Amendment does not
guarantee privacy against intrusions by private entities. Willamette River Reader Publishing is
not a function of neither the state nor federal governments, so the Fourth Amendment does not
protect individuals from invasions of privacy by Willamette River Reader Publishing. The
Respondent may also try to argue on the basis of libel. With libel being defined as written
defamation, the Respondent may well be able to prove libel against the writers of the
advertisement, but she may not have standing for libel against my client, as my client is did not
write the defamation. As such, the issue of libel should not be of concern in the Courts decision.
And still, the Respondent may try to argue on the basis of the names of the abortion patients
potentially having been obtained from stolen medical records at the clinic. This stance too would
be void, as the Court held in NY Times v. US that the publication of illegally gathered documents
is itself not illegal and shall not be subject to prior restraint. Another possible stance may be on
the basis that, should the names be proven to have been obtained from stolen medical records,
the publication of patient info would violate patient-provider privilege. This privilege is quite
similar in nature to attorney-client privilege, which the Court held in CNN v. Noriega, 498 U.S.
976 (1990) to not be legitimate grounds for the prior restraint of media publication.
Subsequently, the Respondent lacks a strong argument. With this in mind, I submit that this
Court should hold in favor of my client, and in doing so, hold in favor of the free press that this
Nation rose to greatness upon.