A Handbook of Contemporary Research
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 12: First Amendment Defenses in Trade Secrecy Cases
Pamela Samuelson* Courts often refuse to enjoin the use or disclosure of unlawful information (e.g., defamatory statements) because this would be inconsistent with free speech principles embodied in the First Amendment to the U.S. Constitution.1 Yet, courts routinely enjoin the use and disclosure of misappropriated trade secrets. This chapter will explain why injunctions in trade secret are generally, but not always, consistent with the First Amendment. In the typical trade secret case, the misappropriator is an errant licensee, a faithless employee, an abuser of confidences, a trickster who uses deceit or other wrongful means to obtain the secrets, or a knowing recipient of misappropriated information who is free riding on the trade secret developer’s investment. Trade secrecy law requires parties to abide by express or implicit agreements they have made, to respect the confidences under which they acquired secrets, and to refrain from wrongful conduct vis-àvis the secrets. First Amendment defenses to trade secret claims have been relatively rare; yet they have occasionally been successful.2 These successes have generated considerable controversy. Some commentators assert that trade secrets are categorically immune (or nearly so) from First Amendment scrutiny, 3 while others argue that the First Amendment * Richard M. Sherman Distinguished Professor of Law and Information, University of California at Berkeley. This chapter is a derivative work of Principles for Resolving Conflicts Between Trade Secrets and the First Amendment, 58 Hastings L.J. 777 (2007). 1 See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases,...
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