Yesterday, a coalition of organizations dedicated to preserving free
speech rights on the Internet, including the Citizen Media Law Project,
Reporters Committee for Freedom of the Press, Los Angeles Times, Hearst Corp., Gannett Co., Associated Press, and Society of Professional Journalists, filed a “friend of the court” brief in the Wikileaks case. If you haven’t been following the case, a federal judge in San Francisco issued a stunningly broad injunction on February 15 that brought down Wikileaks.org, a site that is developing what it describes as an “uncensorable Wikipedia for untraceable mass
document leaking and analysis.”
True to its mission, Wikileaks has served as a repository for, among
other things, documents that outline the rules of engagement for
American troops in Iraq, a military manual for the operation of the
detention center at Guantanamo Bay, Cuba, and “other evidence of what
it has called corporate waste and wrongdoing,” the New York Times
has reported. Documents posted on Wikileaks have been used in a number
of news stories in recent months, including stories on the U.S.
military’s rules of engagement in Iraq (in the New York Times); the treatment of terrorist suspects held at Guantanamo (in Wired); and government corruption in Kenya and Somalia (on BBC News).
The case in California was initiated by Julius Baer Bank and Trust Company, a Cayman
Islands banking entity, which was able to convince the judge to issue a Temporary Restraining Order (TRO) that enjoined Wikileaks from publishing or distributing copies of
documents the bank claims contain “stolen or otherwise wrongfully
obtained confidential and protected bank files and records.” The judge also issued a Permanent Injunction that ordered Wikileaks’ domain name registrar, Dynadot, to immediately disable the entire
Wikileaks.org domain name and remove all DNS hosting
records. While Wikileaks’ U.S.-hosted site is still in limbo, users can access the material through its many mirror sites, including www.wikileaks.be, wikileaks.org.uk, and wikileaks.cx. For more background on the case, you can read two prior posts I’ve written, here and here.
I’ve strongly criticized the actions of the bank in a prior post on the Citizen Media Law Project Blog,
asserting that it overreached in this case and misjudged the public
reaction to its scorched earth tactics: Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age.
In this post I want to focus on the free speech issues at stake and why
the two orders violate longstanding First Amendment law and should be
First, the TRO and Permanent Injunction are clearly prior restraints. It is easy to see how the TRO
is a prior restraint because it enjoins Wikileaks and “all others who
receive notice of this order” from publishing, posting, linking to, or
otherwise using certain documents and information originating from the
bank. This is a classic prior restraint because it “actually forbid[s]
speech activities.” Alexander v. United States,
509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent
injunctions – i.e., court orders that actually forbid speech activities
– are classic examples of prior restraints.”).
The Permanent Injunction
is a little more complicated to explain — even though its impact on
speech is far more broad than the TRO — because it is directed at an
intermediary, Dynadot. In the Permanent Injunction, the court ordered
to “lock” the Wikileaks domain and erase the “navigation information”
that directs people to the site.
(Jonathan Zittrain does a nice job explaining how this works here.).
That is like telling a newspaper it can continue to print its paper,
but the delivery drivers all have to go home. Such a prohibition on
“distribution” is a prior restraint. See Lovell v. City of Griffin,
303 U.S. 444, 452 (1938) (“The ordinance cannot be saved because it
relates to distribution and not to publication. ‘Liberty of circulating
is as essential to that freedom as liberty of publishing; indeed,
without the circulation, the publication would be of little value.’”).
Indeed, it is a prior restraint of the most extreme kind because it
restrains all speech on the site, including speech
that concerns other important issues that have nothing to do with the
bank or its customers. See Near v. Minnesota, 283 U.S. 697 (1931).
Second, under established First Amendment law, prior restraints — if
constitutional at all — are permissible only in the most extraordinary
circumstances. Prior restraints represent “the most serious and the
least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976), and are presumptively unconstitutional, see Organization for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971). It makes no difference that the documents
posted on Wikileaks are confidential bank records wrongfully uploaded
by a former employee. See, e.g., New York Times Co. v. United States (“Pentagon Papers Case”),
403 U.S. 713 (1971) (holding that injunction against publication of
illegally leaked classified documents from Defense Department is an
impermissible prior restraint).
As the Supreme Court warned in the well-known Pentagon Papers Case,
the First Amendment prohibits prior restraints in nearly every
circumstance, even where national security may be at risk and even when
the source unlawfully obtained the documents. 403 U.S. at 713. The
privacy and commercial interests asserted by the bank simply do not
meet the exceptionally high standard required for a prior restraint.
See, e.g., Keefe, 402 U.S. at 419 (“Designating the conduct as an invasion of privacy” does not justify a prior restraint.); Matter of Providence Journal Co.,
820 F.2d 1342, 1350 (1st Cir. 1986) (concluding that privacy, “although
meriting great protection, is simply not of the same magnitude” as the
interests that could justify a prior restraint).
Moreover, the validity of the TRO and Permanent Injunction is further
undercut by the broad immunity granted to Wikileaks and Dynadot by section 230 of the Communications Decency Act
(CDA 230). CDA 230 likely immunizes Wikileaks and Dynadot from
liability because they are both providers of interactive computer
services and the documents were posted by a third party. As a result,
the bank cannot establish serious questions going to the merits, let
alone a likelihood of success on the merits, of its claims. See Optinrealbig.com, LLC v. Ironport Systems, Inc.,
323 F. Supp.2d 1037, 1047 (N.D. Cal. 2004) (denying motion for a
preliminary injunction because defendant was immune under CDA 230).
Despite the clear First Amendment issues at stake in the case, neither
the bank — nor the court — addressed the exceptionally high standard
that must be met to warrant the shutdown of the Wikileaks website or
the forced removal of newsworthy documents. As a result, with the help of the Cyberlaw Clinic
at Harvard Law School and lawyers at Davis Wright Tremaine LLP, the Citizen Media Law Project and almost a dozen
other organizations dedicated to preserving free speech on the Internet
have asked the court in the Wikileaks case to allow us to file an Amici Curiae brief opposing continuation of the TRO and Permanent Injunction. You can read our brief here.
Other briefs filed yesterday include a submission by the Project for Government Oversight, ACLU, and Electronic Frontier Foundation, and a motion to intervene
in the case filed by Public Citizen and the California First Amendment
Coalition that argues that the court did not have jurisdiction in the
case, and therefore had no power to issue the injunctions.
(You can follow future developments in the case by going to the CMLP’s database entry: Julius Baer Bank and Trust v. Wikileaks.)