US DISTRICT COURT Judge Jeffrey White did a U-turn on his own earlier order in San Francisco on Friday, reversing suppression of the whistleblower website Wikileaks.
Swiss bank Julius Baer had obtained the injunction on February 15 by alleging that Wikileaks was publishing confidential documents that violated its client's right to privacy. The controversial papers tended to suggest that the bank and its client might have been involved in some tax evasion and money laundering.
Wikileaks' US ISP Dynadot complied with Judge White's order and removed its DNS entries, but the website was still accessible via its numeric IP address. In addition, online activists immediately mirrored Wikileaks at dozens of alternate websites worldwide. The ensuing publicity made headlines almost everywhere.
The American Civil Liberties Union and the Electronic Frontier Foundation filed a motion protesting the censorship of Wikileaks, and The Reporters Committee for Freedom of the Press (RCFP) assembled a media coalition that filed a friend of the court brief on Wikileaks' behalf.
The media coalition comprised almost all of the major US newspaper publishers and press organisations, including -- in addition to the RCFP -- the American Society of Newspaper Editors, The Associated Press, the Citizen Media Law Project, The E.W. Scripps Company, the Gannett Company, The Hearst Corporation, the Los Angeles Times, the National Newspaper Association, the Newspaper Association of America, The Radio-Television News Directors Association, and The Society of Professional Journalists.
On the grounds that Wikileaks had not appeared in court to defend itself and no First Amendment issues had yet been raised before the court, the press coalition requested to be heard as a friend of the court to call attention to relevant points of law that the court had apparently overlooked.
In a twenty-three page brief, with one voice most of the US fourth estate argued:
"First, Wikileaks provides a forum for dissidents and whistleblowers across the globe to post documents, but the Dynadot injunction imposes a prior restraint that drastically curtails access to Wikileaks from the Internet based on a limited number of postings challenged by Plaintiffs. The Dynadot injunction therefore violates the bedrock principle that an injunction cannot enjoin all communication by a publisher or other speaker.
"Second, the [Temporary Restraining Order] against Wikileaks violates the First Amendment because judicial orders enjoining reporting on or dissemination of documents constitute prior restraints. Under Pentagon Papers, the First Amendment prohibits prior restraints in nearly every circumstance, even where national security may be at risk and the press's source is alleged to have obtained the documents unlawfully. The privacy and commercial interests Plaintiffs cite are simply not on the same order of magnitude required to justify a prior restraint, and the grab bag of federal, state and foreign laws they cite do not authorize prior restraints.
"Third, both the [Temporary Restraining Order] and Dynadot injunction lack the rigorous findings required for a prior restraint and are far broader than constitutionally permissable, as the [Temporary Restraining Order] purports to reach anyone with "notice," not just parties, and is not narrowly tailored.
"Finally, the [Temporary Restraining Order] and Dynadot injunction are precluded by Section 230 of the Communications Decency Act, which prohibits injunctive relief against websites and services such as Wikileaks and Dynadot for publishing information provided by third parties." (All citations omitted.)
Faced with such concerted and well founded opposition from the press, Judge White not only dissolved the injunction requiring Dynadot to suppress Wikileaks' DNS entries but also denied the plaintiff's request for an order prohibiting the website's publication.
In a press release, RCFP Executive Director Lucy Dalglish said, "It's not very often a federal judge does a 180 degree turn in a case and dissolves an order. But we're very pleased the judge recognized the constitutional implications in this prior restraint."
The press coalition's brief is here (pdf). µ
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