There is a paper that discusses this issue in more detail,
"Principles for Resolving Conflicts Between Trade Secrets and the First Amendment" by P. Samuelson:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925056Upholding contracts and preventing trespassing (or other "wrongful conduct") are usually fair game for restrictions on 1A. But "Trade secret law is grounded in unfair competition principles, ... [so] First Amendment defenses to trade secret claims are most likely to succeed as to those who did not participate in misappropriating the information, who acquired the information lawfully, and who seek to make public disclosures as to matters of public concern. In exceptional cases, preliminary injunctions may impinge on First Amendment rights even when defendants are in privity or have wrongfully acquired the information."
This isn't just "what's your secret method for cheaply polishing ball bearings." It's clearly a "matter of public concern," and that does help enormously. But your first amendment claims would improve even more if the person distributing the information neither trespassed nor broke an employment contract.
Also note that the California Supreme Court has made it a jurisdiction least likely to apply first amendment to trump trade secret law, thanks to DVD Copy Control v. Bunner.
It would be advisable for any prospective documentarians to pass off any collected information to a local news station (rather than just youtube). Don't tell the network how you got it or develop any long term relationship with them. Make sure they have media liability insurance. Then maybe lay low while they fight the case, which they'll probably have to appeal all the way up. That'd set up the model case and the money to fund it.
Even short of that, though, as a "matter of public concern," this may be one of those "exceptional cases" alluded to above. It'd be interesting to see it argued.
Upholding contracts and preventing trespassing (or other "wrongful conduct") are usually fair game for restrictions on 1A. But "Trade secret law is grounded in unfair competition principles, ... [so] First Amendment defenses to trade secret claims are most likely to succeed as to those who did not participate in misappropriating the information, who acquired the information lawfully, and who seek to make public disclosures as to matters of public concern. In exceptional cases, preliminary injunctions may impinge on First Amendment rights even when defendants are in privity or have wrongfully acquired the information."
This isn't just "what's your secret method for cheaply polishing ball bearings." It's clearly a "matter of public concern," and that does help enormously. But your first amendment claims would improve even more if the person distributing the information neither trespassed nor broke an employment contract.
Also note that the California Supreme Court has made it a jurisdiction least likely to apply first amendment to trump trade secret law, thanks to DVD Copy Control v. Bunner.
It would be advisable for any prospective documentarians to pass off any collected information to a local news station (rather than just youtube). Don't tell the network how you got it or develop any long term relationship with them. Make sure they have media liability insurance. Then maybe lay low while they fight the case, which they'll probably have to appeal all the way up. That'd set up the model case and the money to fund it.
Even short of that, though, as a "matter of public concern," this may be one of those "exceptional cases" alluded to above. It'd be interesting to see it argued.