NEWS MEDIA UPDATE · SECOND CIRCUIT · Prior Restraints · Jan. 19, 2007
Judge’s order preventing posting of documents challenged
Jan. 19, 2007 · An anonymous Web poster is challenging a judge’s order preventing him from posting documents leaked from Eli Lilly pharmaceutical company, arguing that the court injunction ordering the removal of links from a public “wiki” — a Web site that allows readers to edit the content of the site — constitutes an unconstitutional prior restraint on speech.
“Preventing a citizen journalist from posting links to important health information on a public wiki violates the First Amendment” the Electronic Frontier Foundation, who represents the anonymous poster, said in a press release.
According to a Jan. 15 New York Times article, the controversy began when attorney James B. Gottstein of Alaska discovered that Dr. David Egilman, a consulting witness in litigation against Eli Lilly, possessed confidential company documents.
Gottstein, who was representing mentally ill patients suing Lilly over the drug Zyprexa’s undisclosed side effects, subpoenaed Egilman. By the time Lilly was informed of the subpoena, Gottstein had already obtained some of the internal material.
Gottstein turned over the documents to more than a dozen individuals and organizations, including the Times.
According to the Times article, the papers revealed that Eli Lilly had deliberately downplayed Zyprexa’s side effects, including weight gain, high blood sugar, and diabetes, and had promoted the drug for “off-label” uses not approved by the Food and Drug Administration. Zyprexa is Eli Lilly’s best-selling drug and is used to treat schizophrenia and bipolar disorder.
In December, U.S. District Judge Jack B. Weinstein in Brooklyn, N.Y., ordered that Gottstein release the names of those who received the information and recollect the documents.
The anonymous poster, known in court papers “John Doe,” posted links to the documents on a public wiki called “Zyprexa Kills” (zyprexa.pbwiki.com).
An attorney for Eli Lilly e-mailed the wiki site on Dec. 29 and demanded that the site delete “Zyprexa Kills,” referencing the December court injunction, which did not specifically include the wiki.
Weinstein’s injunction soon followed on Jan. 4, ordering several organizations and individuals to remove their links to the Lilly documents and stop “facilitat[ing] dissemination” of the information. The list did not include the Times, but did include the wiki.
Doe removed all links to the papers, but still believes that public access to the documents is necessary for the public to understand the medical, ethical, and health issues concerning Zyprexa, according to court filings.
“Eli Lilly’s efforts to censor these documents off the Internet are particularly outrageous in light of the information reported by The New York Times, which suggests that doctors and patients who use Zyprexa need to know the information contained in these documents,” the EFF press release states.
EFF maintains that the court does not have the authority to stop people not involved in the lawsuit from “facilitat[ing] dissemination” of the Lilly documents. The organization believes that the independent parties’ right to link important public information must be protected.
The leaked documents are available online from servers outside of the United States, including Sweden.
Weinstein has yet to rule on the case.
(In re: Zyprexa Products Liability Litigation, Doe’s Counsel: Fred von Lohmann, Electronic Frontier Foundation, San Francisco) — MA