Intellectual Property Law

In Free Speech Flap, Calif. Judge Orders Web Site to ShutterWSJ.com: Law Blog - WSJ.com

The Law Blog loves the Orwellian nature of a good free speech spat, particularly when the First Amendment clashes with mass media. And a real doozie of a case out in California came to a head on Friday.

Wikileaks.org, a site we?re sad we didn?t know existed until today, was developed as an Internet forum for posting leaked materials. Its stated goal is discouraging ?unethical behavior? by corporations and governments. According to this NYT article, the site has posted documents said to show the rules of engagement for American troops in Iraq, a military manual for the operation of the detention center at Gitmo, and other evidence of what it has called corporate waste and wrongdoing. But on Friday, a federal judge in San Francisco issued a permanent injunction shutting the site down.

The plaintiff in the case was Cayman Islands-based Julius Baer Bank and Trust. According to reports, the bank claimed that a disgruntled ex-employee ?engaged in a harassment and terror campaign,? providing stolen documents to Wikileaks in violation of a confidentiality agreement and banking laws. According to Wikileaks, ?the documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion.?

But how effectual is ordering a Web site to shut down, anyway? The Times suggests that ?locking the front door? of the website is akin to a game of whack-a-mole: closing one avenue to the site leaves plenty of other avenues available to the savvy Web user.

In a statement on its site, Wikileaks compared the injunction to ones eventually overturned by the Supreme Court in the Pentagon Papers case. There, the government tried to enjoin publication by The Times and The Washington Post of a secret history of the Vietnam War.

David Ardia, the director of the Citizen Media Law Project at Harvard Law School, told the NYT that the injunction is clearly unconstitutional, and that ?There is no justification under the First Amendment for shutting down an entire Web site.?

Full post as published by IP Law Daily on February 20, 2008 (boomark / email).