Intellectual Property Law

Two Federal Courts Undercut the First Amendment

By Cynthia Brumfield

Something is in the air these days because in two separate cases, federal court judges have issued rulings that do some damage to the First Amendment right to free speech. In the first case Judge Jeffrey S. White of the Federal District Court in San Francisco issued last week what the Citizen Media Project calls a "stunningly broad injunction" against web site Wikileaks.

Wikileaks says it's an "uncensorable Wikipedia for untraceable mass document leaking and analysis," and has actively published a number of purloined documents submitted to it, including the secret censorship lists of Thailand's military Junta and files that purported to expose money-laundering by the former president of Kenya, Daniel Arap Moi.

This go-around Wikileaks published documents regarding a Cayman Islands bank Julius Baer Bank and Trust Company. Julius Baer asked first for a temporary restraining order against Wikileaks and then received a permanent injunction against the web site because, it argued, a disgruntled ex-employee has provided the site with stolen documents that violate a confidentiality agreement and banking laws. Judge White issued an order not to the site itself but to Wikileaks domain registrar Dynadot to disable the entire Wikileaks.org domain name and account and remove all DNS hosting records.

As the New York Times points out, the order is an ineffectual one and betrays the lack of Internet knowledge by both the court and Julius Baer. Moreover, it underscores how difficult it is to restrain speech on the Internet. The site remains available to pretty much everybody via its IP address (http://88.80.13.160/) and mirror sites are available all over the world, outside the reach of the U.S. court system.

Still, how this whole thing came down seems to smack of some kind of worrisome star chamber proceeding, according to Wikileaks. In a press release, the organization said that Julius Baer's attorneys wrote the injunction and Judge White accepted it without amendment and without hearing from Wikileaks or its supporters. Even though Wikileaks has pro bono attorneys in San Francisco, it was given only hours to prepare for the injunction hearing. A friendly attorney that rushed to hearing, not yet acting in a formal capacity, was apparently kicked out of the hearing room.

Even worse, the judge didn't issue a preliminary injunction, which is usually the safest route in these kind of cases, but went straight for a permanent shutdown. It's hard to tell what facts were available to the judge, but they had better be good in order to justify this kind of prior restraint and hardline crack down.

Wikileaks says that to find a comparable example of prior restraint by a U.S. court, one has to go back to the Pentagon Papers case, when a court enjoined the New York Times from publishing leaked documents, a decision ultimately overturned by the Supreme Court. Although Wikileaks is no New York Times, the analogy may not be far off.

In another case that better illustrates the trade-offs between free speech and other legal principles, federal judge Reggie B. Walton has found a former reporter (now a journalism professor) Toni Locy in contempt of court for refusing to comply with his order that she reveal confidential sources for a series of reports she wrote on a former Army scientist's possible role in the anthrax attacks that temporarily gripped the nation in 2001.

Former army bioterrorism expert Dr. Steven Hatfill is suing the government for defamation because of leaks that falsely and widely portrayed him as the source of the anthrax threat. In order to make his case, Hatfill needs to prove that someone in the government leaked information about him to Locy, but Locy won't compromise her sources.

Locy is now subject to fines of $500 a day for seven days, which escalate to $1,000 a day for seven days and then up to $5,000 a day for seven days. Locy thinks that if she caves, other journalists will have a hard time getting inside tips from law enforcement authorities. Judge Walton, however, thinks the feds should get their due for "destroying" Hatfill's life.

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