Samuelson, Pamela --- "First Amendment Defenses in Trade Secrecy Cases" [2011] ELECD 553; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 12

Section Title: First Amendment Defenses in Trade Secrecy Cases

Author(s): Samuelson, Pamela

Number of pages: 30

Extract:

12 First Amendment defenses in trade
secrecy cases
Pamela Samuelson*


Courts often refuse to enjoin the use or disclosure of unlawful informa-
tion (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 devel-
oper'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-à-
vis the secrets.
First Amendment defenses to trade secret claims have been rela-
tively 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).
...