You Can't Say That!: Enjoining Publication of Trade Secrets Despite the First Amendment

Authors

• Brooks W. Taylor, Southern Methodist University, Dedman School of Law

Abstract

Enjoining publication of trade secrets is certainly restraint of speech, but is it invalid under the First Amendment to the United States Constitution? Different courts have answered that question in different ways. Some courts have applied strict scrutiny and found preliminary injunctions against the publication of trade secrets to be unconstitutional prior restraint of free speech. Most recently, the California Supreme Court, applying intermediate scrutiny, found such an injunction against the re-publication of computer code on the Internet to be a content-neutral restraint not barred by the prior restraint doctrine.

For a number of reasons, corporations are relying increasingly on trade secret protection. One reason is that information has come to play a larger part in the American economy, and, where patent law protects inventions and copyright law protects expression, trade secret law protects information. Another reason is that a corporation can unilaterally create trade secrets, without governmental or administrative involvement. Furthermore, trade secret protection is available immediately-as soon as the secret is developed and the corporation has implemented secrecy measures. The potential for permanent protection (albeit at the price of eternal vigilance) provides yet another reason for a corporation to seek trade secret protection of its information.

Thus, trade secret law is a form of intellectual property protection that is becoming more attractive and necessary to American businesses. As a result, finding a resolution to the conflict between the trade secrets owner's right to prevent disclosure of his secrets and the freedom of speech guaranteed to the discloser by the First Amendment has become imperative. A clear indication of how to balance the rights of the two parties in such a controversy is necessary; unfortunately, though, the indications from the current case law are murky and conflicting. This comment will examine the range of answers given by the case law and some of the proposed solutions in the scholarly commentary. Section II presents a history of the two areas of law at issue: free speech and trade secrets. Section III examines cases in which courts reviewed First Amendment challenges to injunctions against the disclosure of confidential information. Section IV concludes with a review of possible resolutions to the conflict between these rights.

Recommended Citation

Brooks W. Taylor, You Can't Say That!: Enjoining Publication of Trade Secrets Despite the First Amendment, 9 Computer L. Rev. & Tech. J. 393 (2005)