The First Amendment and Wikileaks

To clarify some things I misunderstood about this story this morning. Dynadot is Wikileaks' domain registrar, and it was Dynadots not Wikileaks who stipulated to blocking the domain.

To clarify some things I misunderstood about this story this morning. Dynadot is Wikileaks' domain registrar, and it was Dynadots not Wikileaks who stipulated to blocking the domain. Which explains why there was a stipulation at all. And why Wikileaks was so outraged by the court's action. OK, here's some samplings of the press coverage on this.

One of several interesting aspects of the case is the fact that the Dynadot chose not to fight on behalf of its Web hosting client, said Mark McCreary, an attorney with Fox Rothschild. "While First Amendment rights are not an absolute defense to reporting false information, it does appear here that Wikileaks.org is being censored without adequate opportunity to defend or explain its actions and postings," McCreary told LinuxInsider. However, it is not clear what arguments the bank was putting forward to justify the order and whether it is arguing that the site was breaking the law in any way, he cautioned. "Without further information, it is too soon to scream censorship from the rafters, but this is a case of very aggressive actions being taken by a host provider," McCreary added. (Linux Insider)
Judge White’s order disabling the entire site “is clearly not constitutional,” said David Ardia, the director of the Citizen Media Law Project at Harvard Law School. “There is no justification under the First Amendment for shutting down an entire Web site.” (NY Times)
The second order is a much broader gag order that enjoins everyone sued by the plaintiffs — wikileaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working “in concert” with them, and “all others who receive notice of this order” (!) and orders them not to do any of the following: displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property … and any information or data contained therein, including on ....

Leaving aside the sweep of the order — on what theory does this court have jurisdiction of everyone who learns of the order? — this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I’m pretty skeptical. Assuming that the information was in fact stolen, one has to admit that the case law relating to the retention of stolen documents is confusing: on the one hand the law clearly allows the owner to demand their return. On the other hand, as far as I know, the very strong presumption against prior restraints on publication has not been overcome as regards to parties who receive the information from a person other than the thief. Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar — not foreclosed utterly.(Discourse.net

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