Bunner

I concur in the majority’s narrow holding, which, as I understand it, is that the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets. I further agree that the First Amendment requires independent appellate review of such preliminary injunctions, rather than the deferential review usually accorded such injunctions. I write separately for two reasons. First, I believe there is a need to clarify how the prior restraint doctrine under the First Amendment applies to the publication of alleged trade secrets. Second, I would forgo further proceedings in the Court of Appeal and simply affirm that court’s judgment. In my view, the DVD Copy Control Association’s (DVD CCA) trade secret claim against Bunner is patently without merit for the reasons explained below.

I.

I agree with the majority that computer code is a form of speech under the First Amendment. “Because computer code ‘is an expressive means for the exchange of information and ideas about computer programming’ [citation], ‘we join the other courts that have concluded that computer code, and computer programs constructed from code can merit First Amendment…

Today we resolve an apparent conflict between California’s trade secret law (Civ. Code, § 3426 et seq.) 1 and the free speech clauses of the United States and California Constitutions. In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to know that the secrets were acquired by improper means. The trial court found that the operator misappropriated these trade secrets in violation of section 3426.1 and issued a preliminary injunction pursuant to section 3426.2, subdivision (a), prohibiting the operator from disclosing these secrets. Accepting as true the trial court’s findings, we now consider whether this preliminary injunction violates the First Amendment of the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. We conclude it does not.

I.

A.

Digital versatile discs (DVD’s) “are five-inch wide disks capable of storing more than 4.7 [Gigabytes] of data. In the application relevant here, they are used to hold full-length motion pictures in digital form. They are the latest technology for private home viewing of recorded motion pictures and…

I write separately because I agree partly with the majority and partly with Justice Moreno. I agree with the majority’s conclusion that the First Amendment to the United States Constitution does not necessarily preclude injunctive relief in trade secret cases. I find in Justice Moreno’s concurring opinion, however, a more satisfying reconciliation of that conclusion with the constitutional rules governing prior restraints and content-based restrictions of speech.

*891 The court agrees that a reviewing court in First Amendment cases must examine the entire record independently to ensure that the factual predicates for injunctive relief truly exist. Justice Moreno would have us conduct that examination ourselves. Certainly we have the power to do so. In my view, however, considerations of judicial economy justify the majority’s decision to leave this factually intensive task to the Court of Appeal. (See Cal. Const., art. VI, § 12, subd. (c); Cal. Rules of Court, rule 29(b)(3).)

Dan Robbins, Jason M. Okai; Williams & Connolly, David E. Kendall, Thomas G. Hentoff, Janet C. Fisher, Suzanne H. Woods, Washington, DC, Julia B. Shelton; Paul, Hastings, Janofsky & Walker; Roger M. Milgrim, New York, NY; John Fithian; Daniel L. Brenner, Neal M. Goldberg, Washington, DC, Michael S. Schooler, Diane B. Burstein; David M. Proper; William Daly; and Thomas J. Ostertag, New York, NY, for Motion Picture Association of America, Inc., American Federation of Musicians of the United States and Canada, American Federation of Television and Radio Artists, AFMA (formerly the American Film Marketing Association), American Society of Composers, Authors and Publishers, American Society of Media Photographers, Inc., Association of American Publishers, Inc., Business Software Alliance, Broadcast Music, Inc., Department of Professional Employees, Directors Guild of America, Graphic Artists Guild, Interactive Digital Software Association, National Academy of Recording Arts & Sciences, Inc., National Association of Theatre Owners, National Cable & Telecommunications Association, Inc., National Football League, National Football League Properties, Inc., National Hockey League, National…