Wikileaks case emphasizes rule against prior restraint

Paul Alan Levy of Public Citizen has a Google Comment up on the whole Wikileaks fiasco. Now that Julius Baer has moved for dismissal,

We are confident that judges in such future cases will have learned the lesson taught by the proceedings in federal court in San Francisco - that a prior restraint should not issue against free speech no matter how serious the plaintiff's claim of wrongdoing may sound, especially when those whose First Amendment interests are at stake have not been able to get to court to explain the flaws in the plaintiff's case. When courts issue prior restraints against free speech on a few days' notice, mistakes are inevitable, and in our constitutional tradition, courts should bend over backwards to avoid improper orders against free speech

But the reversal only happened as the result of public outcry, legal work and California's legal environment, Levy says.

The enormous public outcry against the excessiveness of the relief granted by the judge ... plainly affected the judge who was concerned at the outset of the preliminary injunction hearing last Friday to explain away his grant of such sweeping relief. .... Judges DO read the newspapers. At the same time, we give the judge full credit for undertaking a meticulous review of the various considerations at stake - a four-hour oral argument is extremely unusual in an age when federal judges are overwhelmed with cases - and then reaching the right result.

Second, several different organizations and lawyers, many of them working entirely pro bono, poured very substantial time and talent into crafting a series of briefs and oral arguments that forcefully brought to the Court’s attention the various legal reasons why his existing orders could not be sustained and why no further relief should be granted in favor of Bank Julius Baer. The public needs organizations like Public Citizen and the ACLU and EFF to stand up for the public’s right to receive important information of the sort that is available on Wikileaks.

Finally, Levy says, California anti-SLAPP statute played an important role in the ultimate decision to drop the case.

Under that statute, once an anti-SLAPP motion is filed, the plaintiff cannot avoid being subjected to a finding that the case lacked merit - and to an award of attorney fees for having filed suit against an exercise of free speech without any probability of success - but dismissing the case voluntarily. Only by dismissing its suit before any SLAPP motions were filed (by the March 14 deadline given by the Judge for filing motions to dismiss) did the bank avoid getting stuck in court in a hopeless situation.

Levy takes the court to task for rushing into a decision based on only one side's presentation and in the face of basic legal concepts.

The obvious problems with the case should have been apparent - we learn about the need for “complete diversity” in the first year of law school, and his opinion finding a probable lack of jurisdiction was based on a phrase in the third paragraph of the complaint. We can have no doubt that, with time for reflection, he would have noticed this problem. We have a strong rule against prior restraints because although mistakes are inevitable when we rush, we bend over backwards to avoid mistakes about speech. We can only hope that the next time a plaintiff like Bank Julius Baer comes tearing into court with a complaint about the grievous wrong that it has suffered - and the posting of confidential bank documents containing truly private customer information, if that is really what is at stake here, is surely a grievous wrong - a court will still withhold a prior restraint as a remedy for that wrong.