Intellectual Property Law

One judge at a time

By Susan Crawford

So you can educate a judge. Bravo to EFF, ACLU and their colleagues for reminding Judge White about the First Amendment and persuading him that a take-down order for an entire bulging web site when you’re worried about a few pages isn’t constitutional. (EFF press release, Judge Dissolves Wikileaks.org Injunction: First Amendment Rights of Internet Users Upheld in Today’s Hearing.) And bravo to the judge for having the grace and judgement to learn and back down.

Media coverage said that Judge White’s initial order was a “prior restraint.”  I have to say that this puzzles me.  What’s a prior restraint once something has been posted online?  EFF and the ACLU had to educate this judge about the impracticality of his order - the Wikileaks.org material was echoed, copied, cached in hundreds of places.  Yes, Wikileaks.org itself may have gone dark, but the substance was everywhere.  The order was a post restraint and an unconstitutional adventure, but we’ve got to come up with some internet-specific language that adequately expresses our distate for censorship while recognizing the futility of the Wikileaks move.

Maybe the shorthand can simply be “Remember Wikileaks.”

Full post as published by Susan Crawford Blog on February 29, 2008 (boomark / email).