ROE v. DOE

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Argument of Marvin M. Karpatkin

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1446, Roe and others against Doe.

Mr. Karpatkin.

Mr. Marvin M. Karpatkin: Mr. Chief Justice may I please the Court.

The critical question in this case is whether the First Amendment's prohibition against prior restraint is violated by the grant of a total preliminary injunction against the distribution of a scientific book.

A cycle of therapeutic cases where the only finding which has been made by any judge concerning disguise of the patients is that the defendant doctor took reasonable steps to meet the usual standards for disguising the patient's identity.

The injunction has been in effect since May 7th of 1973 more than 17 months.

Justice Harry A. Blackmun: Is that conceded that the usual steps were taken?

Mr. Marvin M. Karpatkin: It is conceded that that is what was held by the justice presiding its special term in New York county, Mr. Justice Silverman and its set forth of page 883 in the record, Mr. Justice Blackmun.

Chief Justice Warren E. Burger: Where in the appendix do we find that or is it there?

Mr. Marvin M. Karpatkin: The words appear at 883, Mr. Chief Justice.

883 in the appendix and if I may read, defendants have taken some steps to disguise the identity of the patients.

I think those steps reasonably meet the usual standards for such disguising of the patient's identities.

That is the only finding which has been made concerning disguise.

And then the court engages in this bit of speculation as to who might be able to penetrate the disguise.

The court says, while I have not read this 1,000 page book, the examples of possible identification given by plaintiff in the moving affidavit must be assumed to be the more striking ones.

I do not think that they would really identify plaintiff as the patient to someone who did not already know that plaintiff was the patient.

Necessarily subsumed into this primary question of the prior restraint is the connective question of what are the constitutional limits of any cause of action, which would seek to impose liability on a doctor for publication of a case history.

And as much as there can be no provisional remedy equitable or otherwise in the absence of a constitutionally sufficient cause of action, this second question is of necessity subsumed in the first, while the constitutionality of a prior restraint on publication is hardly enough of question for this Court.

It's attempted imposition in this case on a conceitedly truthful, non-obscene scientific book.

In fact, a book length case history of a cause of cycle therapeutic treatment which is more than 10 years over is most decidedly a case of first impression.

The booking question has more than 1,000 pages, 17,016 footnotes.

The least price is $20.00.

The original print order was to $3,000.00.

In the three months that was on sale prior to the injunction, approximately 200 copies were sold.

The subject of the book is the treatment of a man and wife, both diagnosed as Schizophrenics without drug or shock therapy.

The form is a transcription of approximately one fifth of the psychiatrist session notes with copious footnotes written by the psychiatrist.

The therapy is more than 10 years completed.

It was commenced in 1956, 18 years ago and terminated in 1963, 11 years ago.

The book was published in February of 1973.Defendants are a psychiatrist, her husband, a lay therapist, and a small publishing house.

The plaintiff is a former patient.

The other individual subject of the book is the patient's former husband, now deceased, but divorced with plaintiff prior to his demeanors.

His widow, who is also claimed by plaintiff to be identifiable in the book did not join plaintiff in this action.

A preliminary injunction was granted at Supreme Court New York County, Special Term without a trial or an evidentiary hearing of any kind indeed under the New York civil practice law and rules, there's no mandatory right to someone facing an injunction to have a testimonial hearing, much less a full trial on the merits.

Justice William H. Rehnquist: Is that a trial on the preliminary or in the permanent too?

Mr. Marvin M. Karpatkin: On a permanent injunction, Mr. Justice Rehnquist, I presume is an injunction f a trial and they're all the rights, which would normally take place on the trial.

Justice William H. Rehnquist: But the preliminary you can hear on affidavit, you can hear just on the affidavit?

Mr. Marvin M. Karpatkin: That is correct Mr. Justice Rehnquist and that is what happened in this case and that is indeed is the usual practice in New York.

It is unusual but it happens occasionally.

For a justice, its special term to order a testimonial hearing.

And there is no absolute right to it and we sight a case in our brief which indicates that it's within the discretion of the justice.

As this more of the states and his opinions that he has not even read the book.

What's more, he made the following observation, findings and statements within incomprehensively, inconsistent with his conclusion.

Namely, that it is a well-established practice in the medical profession and in the public interest for a physician to publish case histories.

This being a tradition started by Doctor Freud.

Indeed, the only citation of authority in the opinion with special term is a citation to Doctor Freud.

Also an observation, scientific value of the book is not a fit subject for judicial evaluation.

Also, the statements that defendants taken steps to disguise, which I read to the Court and respond for the Chief Justice's question, and with respect to the many examples, 34 number of claimed identification given by plaintiff and her moving affidavit.

It was not a sentence of all testimony or cross-examination on that.

The Court found, I do not think they were really identified plaintiff as the patient to someone who did not already know that plaintiff was the patient.

I respectfully submit that by the use of this double negative.

The special term, it is eliminated any possible finding of general identifiable and he found a mere possibility of the identifiable limited to an obviously small and discrete number of persons who met all the following requirements.

This must be persons who know the plaintiff and who know of the existence of the doctor and who know now, now mind you in 1973 and 1974, the plaintiff and the doctor had a doctor-patient relationship that ended more than 10 years ago.

And even there, Justice Silverman merely speculated that those might be the only ones or that the only ones whom might be able to know would be persons who would be within that discrete group.

I submit that the justice at special term and the appellant division, which affirm the Justice special term and the Court of Appeals, had an equal basis in the record for finding that normal standards of disguise for cases free publication were met and as much as plaintiffs were given false first names.

Plaintiffs were given no last names.

No location was indicated.

The patient's family group was radically altered, fictionalized so as to make it appear that they had only one child when in fact they had two children.

The book was not published until 10 years post treatment and after the divorce and the death of the husband.

And all that plaintiff was able to produce in the three months between the publication and the injunction to support her claim of identifiability was a single affidavit of a friend which does not refer to even a single one of the 34 allegedly identifying characteristics, which plaintiff herself identified in her moving affidavit.

Justice Potter Stewart: This actual representations that you're making Mr. Karpatkin, are you thereby implying if there had been identification, the publication of this book could have been enjoined?

Mr. Marvin M. Karpatkin: No court has ever so held.

Justice Potter Stewart: Well, what's you're --

Mr. Marvin M. Karpatkin: Mr. Justice Stewart, my submission is that if there would be a complete and total identification such as for example, if the identifying information in the Kinsey Institute of Sex Research files were suddenly to be made public.

I would concede that with appropriate safeguards or hearing and testimony and cross examination to have some things, the truth of those allegations that injunctive relief would be permissible and a prior restraint --

Justice Potter Stewart: Or let's you got the idea of writing a book, does the secrets of my clients, and wrote it up and had it printed, do the publication of such a book being enjoined if you identified all your clients, disclosed all their incompetencies, they have reposed in you?

Mr. Marvin M. Karpatkin: If there was a sufficient identification in breached of a professional attorney-client relationship where in fact that identification have been established and where in fact it was not consent.

I would have to answer in the affirmative to your question Mr. Justice Stewart, but I would assume --

Justice Potter Stewart: And nothing in the constitution at least would prevent the injunction of a publication of such a book, that hypothetical book?

Mr. Marvin M. Karpatkin: We do --

Justice Potter Stewart: Why hypothetical book?

Mr. Marvin M. Karpatkin: Yes, we do not maintain, Mr. Justice Stewart as --

Justice Potter Stewart: It's not say that the plaintiff won't have any constitutional right to have the book going but that would be up to the state, wouldn't it?

Mr. Marvin M. Karpatkin: It would be up to the state, your Honor, but it would be subject to any cause, any underlying cause of action being subject to constitutional limitations which would not impermissibly infringe on first -- guarantees.

Justice Potter Stewart: My hypothetical case of these authors, actually it is closing conceitedly disclosing the identity and thereby violating the confidences of their patients or in the attorney of hypothetical case of view the author of the book, the secrets of the clients of the lawyer's lifetime, you would concede that there's nothing in the constitution that would prevent a state from enjoining the publication of such a book, if the state shows to do so, would you?

Mr. Marvin M. Karpatkin: I would say that it would have to meet all of the standards with this --

Justice Potter Stewart: Well, what would meet then?

What are the standards?

Mr. Marvin M. Karpatkin: The procedural standards, Mr. Justice Stewart which this Court has said, must be met --

Justice Potter Stewart: Well, let's say after a full hearing, this was found.

Mr. Marvin M. Karpatkin: I would agree with you your Honor's hypothetical suggestion that it would be within the power of the state to --

Justice William O. Douglas: I thought that the command of the first amendment was in terms absolute.

Mr. Marvin M. Karpatkin: The command of the first amendment Mr. Justice Douglas is in terms absolutely.

Justice William O. Douglas: So, you're talking about a water down version of that -- it has been adopted by a constitutional convention, assembled here today?

Justice Byron R. White: That was the First Amendment directs itself to Congress and we're not dealing it with literally.

Were not dealing here within a congress at that time.

Mr. Marvin M. Karpatkin: For purposes of my argument, Mr. Justice Douglas and Mr. Justice Stewart, I must take the First Amendment as it comes to me in decisions of this Court beginning with Near against Minnesota.

Justice Potter Stewart: Seeking would make it applicable to the States?

Mr. Marvin M. Karpatkin: Again, I would have to say that in Near against Minnesota this Court sat down.

The absolute proscription against prior restraints pointed out the nature of prior restraint and violation of the First Amendment and indicated the absolutely limited and demarcated conditions and circumstances under which exceptions could be permitted.

Exceptions being permitted perhaps in the field of obscenity, perhaps in the area of national security, even though this Court declined to allow prior restraint in the New York Times Pentagon Papers case not withstanding allegations of national security issues being in State.

Justice William H. Rehnquist: Mr. Karpartkin, is there any rule of New York practice that would have prevented you or the respondents for that matter, while you are appealing the preliminary injunction up to the New York appellate system from asking the case to come on for hearing on the final injunction before the Supreme Court?

Mr. Marvin M. Karpatkin: No, there is no such rule and indeed the justice its special term and the appellate division indicated that either party or both parties could apply for a preference of the trial if they wish.

Justice William H. Rehnquist: Well, why didn't you do that, if you are concern about getting the book on the street service?

Mr. Marvin M. Karpatkin: Because of the unique circumstances of this case, Mr. Justice Rehnquist was such.

That it was counsel's view representing the defendants in this case that a trial in the face of a preliminary injunction and without adequate pretrial discovery of a plaintiff who makes allegations that she's identified throughout a 1,000 page book and can be recognized by persons going back to her earliest childhood and there are such allegations which are made, that to undertake the trial of that kind, it would have not been proper and expeditious to do, unless there have been adequate and complete pretrial discovery.

Justice William H. Rehnquist: Can't you get pretrial discovery in connection of the injunction action in New York?

Mr. Marvin M. Karpatkin: I would assume that the answer to that would have to be yes, but that would have to be under the direction of the justice to whom the application for preliminary injunction has made.

Justice William H. Rehnquist: Do you think he would have granted it in this case?

Mr. Marvin M. Karpatkin: Again, I would have to speculate but obviously there was a great push on the part of my advisories for the quick as possible decision by the justice's special term.

Justice William H. Rehnquist: Well, I can see their point of view.

They've got what they want.

They've got a restraining order but I think from your point of view, if you want to get rid of the thing as expediently as possible, at least one thing you would consider is having the thing come out in the same court that granted the preliminary.

Mr. Marvin M. Karpatkin: After having read the preliminary injunction what I might say was respect to the justice's special term the baseless preliminary injunction and opinions supporting it and the opinion of the appellate division.

It was our view that there was of course to follow would be to seek reversal of the preliminary injunction by of courts in the appellate system.

It was our view that there was a prior restraint on publication in effect and we just had to find the Court with power to dissolve it.

Justice Harry A. Blackmun: In that connection I think in what you're saying would satisfy any requirement of finality for fair view.

Mr. Marvin M. Karpatkin: I think that's clear Mr. Justice Blackmun and under the decisions of this Court and I think that this Court has held that a decision of a State Court even though a nominally interrogatory, is final for purpose of Section 1257, if it concerns an important question of national policy and I believe that's precisely what this Court held in the Kiff case, and it's difficult to conceive of anymore important national policy I respectfully submit.

Then that which is so frequently rearticulated by this Court that there was a presumptive invalidity to a prior restrained on expression.

Chief Justice Warren E. Burger: Now, which way do you think the time factor works again in relation to the Kiff case, as I recall it in the Kiff case the temporary injunction have been in effect for about three years, here it's a little bit over one year.

Mr. Marvin M. Karpatkin: I would say yes your Honor, it's a year and five months.

I suppose I would have to stand by the First Amendment and take the view that even a day of a prior restrain is an assault which has to be justified by --

Chief Justice Warren E. Burger: As same question that Mr. Justice Rehnquist is passing to you, whether you have a final judgment in the Kiff case, I think the Court took on pains to say or indicate that temporary injunction having continued for three years that was reasonable, so that was quite permanent.

Mr. Marvin M. Karpatkin: I think it is deeply reasonable to assume Mr. Chief Justice, then the light of the opinion on special term the unanimous decision of the appellate division, the unanimous decision of the Court of Appeals that it would be most unlikely are in the Court, rather this Court, to have dissolve the injunction before the case have gone its way.

Justice Lewis F. Powell: May I attend to what Mr. Justice Stewart's question or questions, let's assume for the moment that your clients on that day, patient's identity had been disclosed clearly unequivocal in this book, would you be here today in that situation?

Mr. Marvin M. Karpatkin: I do not think I would be here today to answer your question Mr. Justice Powell.

Justice Lewis F. Powell: In other words, it's a basis of your case, that as matter of fact the patient's identity was not revealed in this book?

Mr. Marvin M. Karpatkin: Well, I respectfully submit that my argument is more than that, it is not just that as a matter of fact but its that as a matter of law, a prior restraint preliminary injunction cannot be entered on the basis of a record which has as deficient as this record is, and that any underlying cause of action whatever it is and I doubt if anyone can read the mélange of opinions from special term and from the appellate division and ascertain what the cause of action was suppose to be.

But that there has to be an articulated cause of action.

There has to be an indication of harm to the patient from identification, there has to be findings of insufficiency of disguise and the identification and the judge has to say so in his opinion.

And it seems to me that some of the things that this Court said in the case of Mayo against Canning about which there was some discussion in the argument was proceeded mine even thought the Court of course was doing --

Justice William H. Rehnquist: But that's under rule, that's under the federals rules as civil procedure, we're administrating a very explicit system of rules, over courts which we have supervisory authority, but we don't have supervisors there over the New York Courts.

Mr. Marvin M. Karpatkin: That is of course correct Mr. Justice Rehnquist, but I think it is possible to at least see some due process laws or some notions of due process laws at least in some of the words of Mr. Justice Roberts in Mayo against Canning Company.

And I believe that the talks about the statement of fact are mingled with arguments and inferences, for which we find no sufficient basis other than the affidavits or in oral testimony, in our case of course there was no oral testimony.

And such finding is there are they can be called findings run in petitioner's favor.

But, it seems to me that there is a suggestions in that opinion that this intermingling of arguments and inferences and this absence of elucidated statements in fact, is precisely what makes difficult if not impossible the course of appellate review.

And therefore, I think it's possible to read from that case in due process clause as to the views of this Court.

Justice Byron R. White: I wonder, back in response to Mr. Justice Stewart you indicated that under that thing and the attorneys example he gave that there state would have power who in such injunction, was that answer based on the reach of the confidential relationship that was inherit in Mr. Justice Stewart's questions or was it the nature of the disclosure, so that would be upon fully aside from whether they would have reach any confidential initiative?

Mr. Marvin M. Karpatkin: I don't wish to be vague in answer to your question Mr. Justice White but all that I can say is that learning amicus representing the American Psychiatric Associations and two other world organizations have postulated five different possible theories of liability, and said that it's unclear which of them or which combinations of them would be involved.

Justice Byron R. White: Well, you gave-- you answered Mr. Justice Stewart however, I wondered what's basis was?

Mr. Marvin M. Karpatkin: I would suppose that it would be possible for a State Court to formulate a standard of liability based on the breach of the confidential relationship between a professional person and someone coming to see the professional person, assuming that all of the standards have been met and that all of the procedural necessities have been met.

Justice Potter Stewart: Well, if the state might assert a variety of interest or maybe the same interest expressed a variety of ways one like the breach for confidential relationship, another way of perhaps putting the same thing as the violation of an implied contract.

Another way might be of saying if the state law is so protective of this confidential relationship that will not allow a position physician or a lawyer to testify even a Court of law where the whole purpose is to get at the truth.

Certainly, that interest is strong enough to prevent anybody ride a free zone profit violating the same secrets of how it came around in the bookstores of this state.

And there might be other and there might be just to regulation of the professions as such, even the medical profession or the legal person, the ethics profession.

And the variety of another state interest none of these is a constitutional interest to put the constitutional question is on the other side of the coin, can a state even when they're on for disclosure, in the interest of furthering of these objectives prevent in advance the publication of the book that would, probably wouldn't do, in amount to a full disclosure of these confidences.

Mr. Marvin M. Karpatkin: Well, I submit that those are the issues which are in the case --

Justice Potter Stewart: But the state interest—it's not for us to say what the ground the state might put as centers now, that's not a constitutional question, the question is does the constitution permit the state from enjoining the publication?

Mr. Marvin M. Karpatkin: My advisory has suggested in this brief and that there might be a constitutional right of privacy which we justify and action by the --

Justice Potter Stewart: -- it's a state cause of action under the state tort law, isn't it?

Mr. Marvin M. Karpatkin: But as -- that is the way the cause of actions is played Mr. Justice Stewart but to indicate the difficulties and attempting to comprehend what happened in the State Courts of New York.

The decision which is cited by the appellate division is this Courts decisions in the abortion cases is suggesting that there is a merging constitutional right of privacy, how that can be read into this case is beyond me but there it is.

Chief Justice Warren E. Burger: Was it suppose to little early to expect that read Mr. Justice Stewart's opinion in the case that came down this morning or perhaps you did --

Mr. Marvin M. Karpatkin: I was able to glance at it, Mr. Chief Justice.

Chief Justice Warren E. Burger: You read that during lunch hour.

Well, was that something like this kind of a case, so do you think or not that was a tort, a claim for violations of privacy that sounds in tort?

Mr. Marvin M. Karpatkin: The Kent Roe case Mr. Chief Justice turns on one of the recognized subdivisions which has been establish in the state law of many states and I believe appears in the reinstatement of the false light notion of a cause of actions for privacy violation.

And it seems to me that all that the decisions of this Court says and I hope I have not left anything out in my brief reading, is that the law is still the law as it was handed down by this Court in Time against Hill, and nothing which may have been said or may have been intimated or which anyone may seek to try to derive from the decisions by this Court in the 2534 case changes the law in Time against Hill.

Justice Potter Stewart: You said we don't even have to consider that question because in this case the Court follow time --

Mr. Marvin M. Karpatkin: Yes, Mr. Justice Stewart and we urge --

Justice Potter Stewart: Or you read it essentially correct I mean.

Mr. Marvin M. Karpatkin: Thank you and we urge that the standard of Time against Hill which is the only occasion when this Court posited a standard of liability in the case of a confrontation between an alleged violation of right or privacy and the First Amendment is the only standard which is applicable here.

Justice William H. Rehnquist: Well, your case is stronger too, is it because here you were enjoined and then 2614 was an action for damage, and it Time against Hill it was action for damage.

Mr. Marvin M. Karpatkin: Yes of course, but I do agree that the case is stronger but --

Justice William O. Douglas: Don't overlook the --

Mr. Marvin M. Karpatkin: I -- I've not overlooked it, Mr. Justice Douglas.

I never overlooked any of the descents written by any of the members of this Court, but as I said before and it's add up to the Chief Justice's question that perhaps that Mr. Justice Stewart's question that a lawyer arguing before the bar of this Court has to take the First Amendment as its come down from decisions of this Court and that is exactly how we urge this Court should treat this case and under the decisions of this Court from near to date this is clearly an impermissible private restraint and any acts of semantics or overlooking or exceptionalizations which have been attempted other by my learned advisory or in the decisions of the New York Courts simply will not wash when compared against the clear writing of Chief Justice Hughes in there against Minnesota and in the decisions since then.

With the Courts permission I'll save the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. London.

Argument of Ephraim S. London

Mr. Ephraim S. London: Mr. Chief Justice and may I please the Court.

Now, this doesn't involve the simple case of publication of the case history that is being enjoined.

What we have in this case is a patient's confidences divulge to her psychiatrist copied almost verbatim.

Notes made during each psychiatric session between the psychiatrist and her patient, who is the respondent in this case, and the patient's husband, and those notes written at lenght after the sessions and then made into a book and as I understand from the brief of the amicus in this case, the American Psychiatric Associations.

In these sessions, a patient is encouraged to dredge up from the unconscious thoughts that would never be expressed.

Memories that had been too distressing to keep in mind and the like, and all these were written down, where a vote by the psychiatrist questions, were then written down and then publish and they relate to such matters as the patient's thoughts during intercourse, her husband's masturbation, her own masturbation, her fantasies about incest, then the like, all these then published in a book and retailed in and discount houses, department stores, trade bookstores even music stores.

This is the kind of book and this is the problem that we have here today and this is again just not a case history.

I can't imagine the situation in which there has been a greater assault on a persons dignity, on a person's self respect to have these thoughts said out for one's neighbors, for one's children, for one's students to read because patient here is an assistant professor in the university.

She is herself a psychotherapist, one can't imagine what would happen if this got into the hands of her pupils or her own patients or her own children or her own friends.

Chief Justice Warren E. Burger: Do you disagree with that challenge that figure 3,000 volumes copies of the book come in than published?

Mr. Ephraim S. London: I don't know your Honor, I think as the statement made by the psychiatrist here and we have no --

Chief Justice Warren E. Burger: Do you have that in the record?

Mr. Ephraim S. London: Pardon me.

Chief Justice Warren E. Burger: Isn't that in the record?

Mr. Ephraim S. London: Oh, it's a statement made which we haven't verified as yet, and I'm going to come to this question of the status of the case and why we are so little advance and why a year and half had past since the preliminary injunction was granted.

Now, the first preliminary injunction on this case was an injunction which prevented the sale only in the trade stores and the department stores, and in the discount houses put a large sale, in medical schools, in libraries who dealt with scientific books and the like, and as soon as that injunction was issue the limited injunction was issued we representing the patient wrote a letter to the Court saying we would like an immediate trial and we suggest that the Court allow ten days for pretrial examination, pretrial discovery before the full trial starts and we receive no response, that letter is that A91 of the record.

We received no response, the order or the injunction, the limited injunction was slightly modified and the case was assigned to a judge for all purposes including trial and we wrote that judge and we said, “May we have an immediate trial?”

And the attorney for the psychiatrist wrote back and said, “We don't join in that application, as a matter of fact we probably we'll appeal,” and this is a very complicated case and we want our learned pretrial examinations.

Now of course, the appeals were taken, so that it wouldn't been difficult to have at trial, and New York state could have been secured without any difficulty I think your Honor, Mr. Justice Stewart asked that question before and a state would be issued on appeal, the state of the trial of the question of the right to injunction were challenged.

Chief Justice Warren E. Burger: Under New York law did the trial Court not lose jurisdiction, and some hasn't appeared in this file?

Mr. Ephraim S. London: Well, retain jurisdiction of the case you Honor.

Chief Justice Warren E. Burger: Well, but who's jurisdiction in the sense of being able to do anything about it without leaving the Appellate Court?

Mr. Ephraim S. London: I think it would have been necessary to apply to the Appellate Court for stay but those stays are automatically granted.

As indeed, they should be if there is a real question to be determined.

But now, coming back to this procedure here as I said when the case was assigned to a judge for trial and for all other purposes we again ask for the immediate trial and we again had the opposition of the psychiatrist here.

And they said they had a law in pretrial examination and indeed, it occupied a longer period of time because of his completed only last week, exactly one week ago.

And we got it completed only by applying to the Court to compel that completion of the examination, but only the parts of six days and now according from the psychiatrist's brief, the reply brief only the parts of six days were taken over this year and half, that examination before trial.

So that any delay or duration of this preliminary injunction is entirely the fault of the psychiatrist here and indeed, over the opposition of the patient, who wanted a quick trial on disposition of this case.

Now, Mr. Karpatkin stated an answer to a question of Mr. Justice Stewart that if there were identification of the patient in this book, an injunction could issue at the trial.

And I think that virtually dispossess of the case.

May I first tell you factually what the identification in the book is, the book does give fictitious names to the parties and says they are fictitious.

But then goes on to give a great many details of the lives of these people indicates that the patient's husband was a professional speech writer.

Justice Harry A. Blackmun: Why are you making this argument?

Mr. Ephraim S. London: I wanted to show that there's a factor of base for identification because Mr. Karpatkin and says if there is identification, then there is an end to the matter.

Justice Harry A. Blackmun: What do we do with this--how do you characterize this statement of the special term, where the judge says, “I think these steps reasonably meet the usual standards for such disguising of the patient's identities.”

Mr. Ephraim S. London: Mr. Karpatkin failed to indicate that that was modified by the appellate division, and it's no longer a holding that --

Justice Harry A. Blackmun: You think it was modified by the statement which characterize the publisher acts has an attempt to disguise her identity?

Mr. Ephraim S. London: No, it what it says that the claim justification for publication, the attempt to disguise her identity does not provides sufficiently valid --

Justice Harry A. Blackmun: Well, that maybe so but do you think that is appellate position's rejection of this factual?

Mr. Ephraim S. London: I think so but I think we can go great deal further your Honor and say that it is a matter of law.

Justice Harry A. Blackmun: Oh, I know but on that basis, this just becomes a fact bound case that may not --

Mr. Ephraim S. London: Certainly not.

Justice Harry A. Blackmun: Interest a lot of people.

Mr. Ephraim S. London: May I --

Justice Harry A. Blackmun: Your suggesting, I'm just -- are you -- Let us assume for the moment that we accept the finding of the special term, I guess that's the finding that this meets the usual standards for disguising identity.

Mr. Ephraim S. London: May I say your Honor that as I understand the law you should not and may I expand on that for just a moment of does your Honor have some other question?

Justice Harry A. Blackmun: No, you go ahead but you might get back to telling me at some point what if we do except that finding in the special term, what happens to your case if anything?

Mr. Ephraim S. London: Well, I still think we have a cause action your Honor.

I think we have a cause of action base --

Justice Harry A. Blackmun: So did both of the lower courts.

Mr. Ephraim S. London: Yes, Your Honor.

There was unquestionably of violation of statute and that Mr. Justice Stewart pointed out, I mean implied contract between the parties.

Justice Potter Stewart: When I -- Mr. Karpatkin, the question that you just referred to whether or not he conceded it if after full due process procedures there were a finding that this book did identify your client and did disclose and publicize the confidentiaries repose by your client and the defendant authors of the book.

Could New York constitutionally enjoin the publication of the book, and I understood him to say, yes it could.

Now, may I ask you the opposite question, if after a due process hearing by a process hearing, it was determined that there was no identification of your client in this book, do you think New York could constitutionally enjoin this publication?

Mr. Ephraim S. London: Yes, Your Honor.

I think New York could on two basis.

One basis is there has been a violation of statute given rise to a cause of action without identification.

The law is very clear and says the doctor may not disclose.

It doesn't say and identify in the cause of disclosure.

Justice Potter Stewart: Disclosure implies identification, doesn't it?

Mr. Ephraim S. London: No, no, no, I don't think so your Honor, I think that the cause of action exist and I think that the cause of the action exist just by the publication because the patient has been injured by that publication.

Justice Potter Stewart: Now, that wasn't my question, my question wasn't whether or not a cause of action might exist in—under the statute or common law in New York, but whether or not such a cause of action could constitutionally exist if there were no identification whatsoever of your client.

Mr. Ephraim S. London: Again, the answer I believe --

Justice Potter Stewart: And the answer isn't that New York gives this cause of action, because the question does not have to do with the law of New York it has to do with the constitution of the United States.

Mr. Ephraim S. London: As I understand the First Amendment it applies to speech but where conduct is prohibited by a lawful statute.

The mere fact that that conduct is progated with communication that is that conduct comes in to effect though communication doesn't prevent, the First Amendment does not prevent in such a situation.

The interference with the communication, the communication may be interfered with because the interference is essentially with conduct and the mere fact that it is the conduct is --

Justice Potter Stewart: Well, here the conduct is writing and publishing a book is that conduct?

If this conduct then the First Amendment is meaningless.

Mr. Ephraim S. London: The conduct is the disclosure of the patient's secrets.

The betrayal of the patient's confidence, that is the conduct your Honor.

And it is accomplished through book, it would be conduct if it was expressed orally and it doesn't become sacred because it is a book.

Justice Potter Stewart: My hypothetical case was one which there was no violation of any confidences because there was no disclosure.

Now, if I told you that somebody once told me the following confidential story, and I won't tell you who it was or when it was I'm not violating anybody's confidences am I?

I would think so Your Honor, if you would tell him not to disclose that story as she would promised not to tell that story ever.

But may I say that we have a case here in which the question of identification does not exist because as a matter of law that patient was identified in this book.

Chief Justice Warren E. Burger: You are saying in effect to the actively publishing of this book, or I'll put it as a question, are you saying that the act of publishing this book was the same as taking all of these notes and files, and putting them in the public library where everybody could look at them.

Mr. Ephraim S. London: Certainly, Your Honor.

Chief Justice Warren E. Burger: That's your thesis, that is conduct not reference.

Mr. Ephraim S. London: Yes, Your honor.

Except giving it wider publicity, then that it might receive if it were merely put into the library.

But may I return to this question--

Justice Potter Stewart: Now, if you were right, then this means that there could be no publications of this nature by any psychiatric authority?

Mr. Ephraim S. London: Of this particular nature, I think not your Honor.

Justice Potter Stewart: By any psychiatric authority.

Mr. Ephraim S. London: Not without the agreement --

Justice Potter Stewart: That Freud himself could have published what he did published, because he did to his very level best to obliterate any identification or identity.

This means if New York State had it wanted to, back in the era where Freud was writing, could have enjoined that publication of everything he wrote.

Mr. Ephraim S. London: Not at all, Your Honor.

Justice Potter Stewart: Well then I misunderstood you.

Mr. Ephraim S. London: I've quoted Dr. Freud to the effect that no matter what happens, one must not do anything to betray the patient, and if one is faced with the necessity of not publishing or betraying the patient one does not publish.

But again, there is a statute here and may I speak a little of New York practice.

The New York Court of Appeals is a court of very limited jurisdiction. And the constitution of the State of New York provides that the Court of Appeals may not pass questions of pact, that by the way is set out of page 1A in the appendix.

The Court of Appeals may not review any question or fact at all, unless the appellate division in an interlocutory judgment, finds new facts or in it's auto granting leave to appeal new facts are set forth.

Now, I think almost every practitioner in that court knows that rule and in point or should know the rule and then there is another statute, so that the Court of Appeals may pass upon questions of law in the context of a particular case and in the context or facts.

There is a statute, 5612, which is again in the appendix which provides that if there are not new findings or fact in the opinion of the Court or in its order or in the auto granting leave to appeal then the Court of Appeals must assume that those facts were determined in favor of the party who is the respondent, who is the patient here.

And questionably there is a disputed fact here, at least there is disagreement with respect to whether there was identification.

Justice Potter Stewart: It seems to me that special term may have found I have suggested, but it went on to say that it didn't think that this disclosure would really identify plaintiff as the patient to someone who did not already know that plaintiff was a patient.

Now, that implies that certainly people who knew the patient could identify him.

Mr. Ephraim S. London: Yes, Your Honor.

It doesn't -- because there were many who knew of her doctor.

Justice Potter Stewart: And they might be able to identify the patient through some of these events, but they certainly wouldn't know everything that was disclosed.

So, I would suppose you would argue this is in itself is enough, there's never been any finding here that there was no identification.

Mr. Ephraim S. London: We, we, we could Your Honor but we can go very much further because we say that the patient --

Justice Potter Stewart: Why you -- I don't know, why you don't stop there for at least, but just to say that that is--you should be able to win your case on that --

Mr. Ephraim S. London: I think we do Your Honor on that alone, but it does go much further and may I just speak once again for a moment about this statutory presumption that the identification was found and that the Court of Appeals is bound by that.

Mr. Karpatkin, the attorney for the psychiatrist in case wrote a reply brief in which he complained three times.

But he's not bound by this section because it wasn't a call to his attention and the Court of Appeals, and he says we must have waived that right to rely on this rule of practice, because it wasn't discussed in the Court of Appeals and he discusses this as a kind of arcane statute, that's his word.

There's nothing mysterious or secret about this statute, it's published in all of the book practice.

And in permanent inc and in point of fact we did call Mr. Karpatkin's attention to that section in our Court of Appeals brief although he three times denied that we did.

At page 14 of our brief to the Court of Appeals, we did discussed the section, we said the court must presume to any question, in fact in dispute, were resolved by the appellate division in favor of the respondent.

And then cited civil practice law and rules 5612b.

May I, by the way have the Court's permission to respond to some errors, misstatements of fact in the reply brief by the letter to this Court?

Justice William H. Rehnquist: Mr. London, before you leave that, I'm puzzled about your explanation of New York practice because I'm trying to agree with what I think is Mr. Justice White's view that the special term found the issue of disguising against you --

Mr. Ephraim S. London: I'm just trying to say you find it my favor.

Justice Byron R. White: Well partially implied -- applied there was identification for perhaps with respect with anybody else.

Justice William H. Rehnquist: Okay, well -- now is it your position that it's that finding that is controlling on us or that's something more favorable of you -- wait, wait till I finish my question.

Mr. Ephraim S. London: I'm sorry.

Justice William H. Rehnquist: Or that something more favorable to you happened in the appellate division and then if that finding that's binding us.

Mr. Ephraim S. London: I think it is the much more favorable finding that is binding upon --

Justice William H. Rehnquist: And that's in the opinion of the appellate division?

Mr. Ephraim S. London: No, no.

The fact is that this is by operation of law.

It is the contention of the patient here, that she is easily identified by a large number of unique facts of her life, so that anyone who knew her and read the book would be able to identify.

Or in fact, a lady did identify, we have her as a witness in the case below.

Now, it is that broad question of identification that we say is binding by reason of a statute.

Justice William H. Rehnquist: Well, let me again, give you this example, supposing that the special term had refused an injunction and specifically found there was no irreparable injury.

And you went up to the New York Courts and consistently disputed whether or not there was irreparable injury, but you never got any finding different from on the special term.

Now, could you come here and say that because that was disputed even though the special term we founded against you we had to resolve it in your favor?

Mr. Ephraim S. London: No, Your Honor, because Your Honors assuming a situation which I would representing the appellant.

And the appellant is the one that has the facts resolved against the appellant.

It is not the respondent, that doesn't work us against the respondent at all it works only in the respondent's favor, where a particular manner and method of appeal is taken.

Now as a matter of fact Mr. Karpatkin had the option of requesting findings a fact that the appellant division and invariably they are granted, it may have been those findings would have been against him.

And it maybe for that reason that he did not want to ask the court to make specific findings or fact but he certainly did not make those findings.

In any attorney who wants to go to the Court of Appeals and have questions of disputed facts considered by that court must raise those questions or fact and they were not raised by the psychiatrist in this case not even in the request for leave to appeal to the Court of Appeals.

The request indicates that the appeal was sort only on the question of fact, I mean on the question of law I'm sorry, and that no disputed questions of fact.

Justice Byron R. White: What aspect -- fact finding why this case comes to us based on what you find in the special term and the appellant division opinion.

Mr. Ephraim S. London: No, Your Honor.

Only --

Justice Byron R. White: No, I mean what -- how does the case come to us with respect to the facts?

Mr. Ephraim S. London: The case comes to you as to the facts with the appellate division opinion, which modified the court at special term and in addition --

Justice Byron R. White: Well, summarize, just for me, what is the fact finding with respect to identification?

Mr. Ephraim S. London: The fact finding with respect to identification is that the patient was readily identifiable from the text of the book and anyone who knew the patient, although the name did not appear in the book would immediately know that she was the subject to the book.

Justice Byron R. White: Now that's the extent of it?

Mr. Ephraim S. London: That is the extent of it and no less Your Honor.

Chief Justice Warren E. Burger: I take it that you are arguing from that this would mean her identity would be widely known in the psychiatric circles.

Mr. Ephraim S. London: Widely known and certainly in any people who knew her and who knew the events of her life.

Chief Justice Warren E. Burger: Specifically that group if she was identifiable to some psychiatrist it would readily expand, I take it that's part of your case.

Mr. Ephraim S. London: Well, that would be it but it would be known I think to anybody who knew that her husband was a man who began to practice the law at the age of 50 and prior at that time had been a speech writer and that she had a son that was a musical prodigy.

These are relatively unique facts.

Justice Harry A. Blackmun: Mr. London gets me back to basics here.

Let me ask you a question that no one else has asked, by basics, I mean this 12573 of 28 USC provides a petition for certiorari here from a final judgment of a State Court.

You can see there's a final judgment here when we've had no trials yet?

Mr. Ephraim S. London: I don't see that we have a final judgment Your Honor, but I think this comes within the exception that case law has made.

I think the case was properly before the court, I did --

Justice Harry A. Blackmun: Well, It seems to me all these question are asked because of something must done a -- than what we would have after a full trial.

Mr. Ephraim S. London: Yes, Your Honor.

But there was the Giff case, the organization for Giff case, in which a preliminary injunction did in fact come before this Court, and the Court stated that it had jurisdiction, and we are not contesting the jurisdiction of the Court in this case.

I understood--

Chief Justice Warren E. Burger: How is it by stipulation either, isn't it?

That doesn't mean the we can't as Justice Blackmun suggests that concludes that there is no jurisdiction -- it was not easy if you read the Giff case closely.

It was not easy for the Court to find jurisdiction there.

And I think there were some indication of an almost abandonment by one party of any effort to challenge the temporary injunction.

There's no such factor here.

Mr. Ephraim S. London: Oh, no.

No, there isn't that fact in this case and we are stipulating

Chief Justice Warren E. Burger: As you say you've been actively engaged on it until a week ago, wasn't that it?

Mr. Ephraim S. London: Yes, Your Honor.

On the examinations before trial alone I understood from Your Honors now that we may send you a letter and I --

Chief Justice Warren E. Burger: Yes, to this supplement, you're in respond to the reply brief.

Mr. Ephraim S. London: I would just like to add one word with respect to the procedures that are followed before preliminary injunction is granted.

In New York State, preliminary injunction is merely an adjunct to the final injunction that may be granted or denied.

And it is a temporary order granted simply to be certain that if final relief is given to the plaintiff in the case, that final relief will not be meaningless, because if the temporary injunction was not granted we would have the sale of the book and it wouldn't have done us any good after a period of time to get the final injunction.

Now, you did have evidence submitted by affidavit, you did have all argument briefs, all the requirements of due process are met, even the demand that a valid cause of action be proved before the injunction can be granted.

There is—it was indicated before a right even to ask for an evidentiary hearing with respect to any crucial fact, any crucial disputed fact.

And Mr. Karpatkin's only complained about that right or about that section allowing a hearing on the disputed fact is that if he asked for it, the Court might have refused to give it to him, because the fact in this case are complex, they certainly aren't complex, they couldn't be simpler.

All that we have here is a simple problem of the book, the revelations in the book, and the problem of identification which I think is evident from the book itself.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. London.

Mr. Karpatkin, you have four minutes left.

Rebuttal of Marvin M. Karpatkin

Mr. Marvin M. Karpatkin: Thank you, Mr. Chief Justice.

First I'm delighted that my learned adversary now agrees that this Court has jurisdiction, when we'd not have known that from reading his brief in opposition to certiorari.

With respect to the presumption, it is evident that respondent's position is lost without the presumption, because it's evident that the basic finding in this case is the finding which was made by Mr. Justice Silverman, a special term, which has in fact and affirmed by the appellate division just modifying the relief granted there from, and also affirmed regrettably without opinion by the Court of Appeals.

And the most that can be found from that finding I say is as Mr. Justice White observed is an implication but even there an implication which is insulated by a double negative.

And it seems to me that a due process means anything, and if the special kind of due process which is necessary before one grants a presumptively unconstitutionally invalid prior restraint.

Justice Byron R. White: Mr. Karpatkin, it seems to me that you have said at least that whether there's identification or not, it's a rather important fact in arriving at some resolution of the case.

Mr. Marvin M. Karpatkin: Absolutely.

Justice Byron R. White: And if it's awfully hard to tell what the facts are from the opinions as the case comes to us, if it's rather hard to grapple with some legal issues.

Mr. Marvin M. Karpatkin: I do not say that it is awfully hard to tell, what I do say that it is impossible --

Justice Byron R. White: Well, I know, but at least special term did not find that your client or that the plaintiff could not be identified them on prints.

Mr. Marvin M. Karpatkin: Sir, special term did not find that the plaintiff could be identified by anyone Your Honor.

Justice Byron R. White: Oh, I know.

But the --

Mr. Marvin M. Karpatkin: You can't find a law in there which even hits that.

Justice Byron R. White: I know but special term did indicate that the normal precautions to avoid identification --

Mr. Marvin M. Karpatkin: Had been taken.

Justice Byron R. White: That's right.

Mr. Marvin M. Karpatkin: That it had been taken, that's right.

And I think I have to win on that.

Chief Justice Warren E. Burger: Well, but then you went beyond that.

Justice Byron R. White: You went beyond that.

Chief Justice Warren E. Burger: You went beyond that and qualified to this finding and let's assume hypothetically that you went to trial on that permanent injunction.

And Mr. London brought in 25 people who had said, “Yes, they read this book without having any knowledge of the background.

And from reading that book they could identify the patient.”

Mr. Marvin M. Karpatkin: The fact is Mr. Chief Justice --

Chief Justice Warren E. Burger: Now, what you have then?

Mr. Marvin M. Karpatkin: That Mr. London had three months.

Mr. London and his client had three months and they submitted one slim affidavit by a friend and --

Chief Justice Warren E. Burger: You don't always try a permanent injunction on that matter of affidavits do you?

Mr. Marvin M. Karpatkin: In that is the customary, if not the required practice.

Chief Justice Warren E. Burger: Not always though.

Mr. Marvin M. Karpatkin: The preliminary injunctions in New York.

Chief Justice Warren E. Burger: I'm speaking of permanent injunction.

Mr. Marvin M. Karpatkin: No, Your Honor.

Of course not.

Chief Justice Warren E. Burger: If he could, he would be, and he certainly could not be denied the opportunity to bring him 25 witnesses could he?

Mr. Marvin M. Karpatkin: Of course not, Mr. Chief Justice --

Chief Justice Warren E. Burger: Let's assume that though, for all the assumption that the 25 witnesses said yes, I read this book and never heard about it before Mr. London asked me who he is.

From a reading of that book I put these factors together and I identified this patient as Dr. X.

Mr. Marvin M. Karpatkin: I assume that these witnesses would be subjective to cross examination of course, and I presume that the trial of the facts would have an opportunity to evaluate this --

Chief Justice Warren E. Burger: As Mr. Justice White has suggested presumably make some findings of fact and then we wouldn't engage in this extensive cross examination that both of you gentlemen to try to find out some of these things, would we, if we need to?

Mr. Marvin M. Karpatkin: Mr. Chief Justice, I would say that your argument follows completely if this were not the case --

Chief Justice Warren E. Burger: Question maybe

Mr. Marvin M. Karpatkin: Prior -- I beg your pardon.

If these were not the case where there has been a prior restraint against a concededly, scientific, none up seen book which has now been in effect for more than one year.

And it seems to me that is the crucial First Amendment question, which has not received any attention at all by the courts of the State of New York and which must recieve --

Chief Justice Warren E. Burger: Whose burden was it to hurry that case on for trial?

The restraint was against you, your client, was it?

Mr. Marvin M. Karpatkin: Mr. Chief Justice, yes it certainly was.

But I saw it as my burden to attempt to relieve the injunction and to seek whatever tribunals could be found with the power and the authority, and the motivation, and the understanding of the First Amendment to do it.

Justice Byron R. White: Were any request for a stay of the injunction turned down or pending to you?

Mr. Marvin M. Karpatkin: No application was made by me for a stay of the injunction, because --

Justice Byron R. White: And you didn't make any here?

Mr. Marvin M. Karpatkin: No Mr. Justice White, but we did go to the appellate division on to the Court of Appeals on an expedited preferred schedule.

Justice Byron R. White: I take it if one your possible arguments would mean that unless and until the plaintiff who brought this suit convinces a Court to make the kind of findings that would work a prior restraint, that there shouldn't be a prior restraint pending in appeal.

Mr. Marvin M. Karpatkin: Certainly, unless the findings have been made, yes Your Honor.

Justice Byron R. White: But you haven't asked for any stay of--

Mr. Marvin M. Karpatkin: No, I have not asked for a stay, I have relied on seeking appeals on the merits as quickly as possible.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is Submitted.