Wikileaks case shows courts still unsure about online media

March 5, 2008  ·   The whistleblower Web site Wikileaks.org is back up and running after U.S. District Judge Jeffrey S. White lifted his previous injunction against the site, noting he may have violated the First Amendment

White ordered the California-based Dynadot, a domain name registrar, to disable the Wikileaks.org domain following a request by Julius Baer Bank and Trust on Feb. 7. But in a later order, which White called an “amended temporary restraining order,” he narrowed the injunction to just preventing the cite from publishing confidential bank records and hundreds of pages of information that alleged the Zurich-based bank was connected to money laundering and tax evasion in its offshore operations in the Cayman Islands.

Several media organizations, including The Reporters Committee for Freedom of the Press, argued before the court that the injunction was too sweeping.

“Attempting to interfere with the operation of an entire Web site because you have a dispute over some of its content is never the right approach,” Electronic Frontier Foundation senior staff attorney Matt Zimmerman said in a statement. “Disabling access to an Internet domain in an effort to prevent the world from accessing a handful of widely-discussed documents is not only unconstitutional – it simply won’t work.”

In White’s Feb. 29 ruling, he denied the Bank Julius Baer’s motion for preliminary injunction and dissolved the permanent injunction, yielding to the difficulties of trying to limit the content that appears online.

“As made abundantly clear by the various submissions of the amicus curiae, the current request for an injunction, as well as the Court’s original entry of a stipulated injunction, raises issues regarding possible infringement of protections afforded to the public by the First Amendment to the United States Constitution,” White wrote.

He continued, “In addition, there is evidence in the record that ‘the cat is out of the bag’ and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank’s clients.”

Peter Scheer of the California First Amendment Coalition, who filed briefs with Public Citizen to act as interveners, notes the significance of this landmark case.

“It is one of the first cases in federal court to apply to a purely online entity that bears little resemblance to traditional forms of legal corporations. There is no formal community of users,” Scheer said. “It was gratifying and important to see that Judge White clearly understood that first amendment rights are very much implemented in this context – the doctrine of prior restraint does apply.”

With the Internet growing as an important form of newsgathering and news distribution, Scheer predicts that this is not the last case that the courts will see that attempts to shut down a Web site.

“What this teaches us is that when courts order prior restraints on speech, especially when it’s done quickly, there are bound to be mistakes,” said Paul Alan Levy, who argued at the hearing on Friday for Public Citizen Litigation Group in support of Wikileaks. “But it also shows that when concerned citizen groups, such as Public Citizen, are willing to speak up in defense of the First Amendment, the federal judiciary will respond by protecting the rights of Internet speakers and, just as importantly, the public’s right to know what corporations and governments are up to.”

The Reporters Committee joined an amicus brief with the American Society of Newspaper Editors, the Associated Press, Citizen Media Law Project, E.W. Scripps Co., Gannett Co., 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, arguing that the restraint was overbroad and unconstitutional.

(Bank Julius Baer & Co. Ltd and Julius Baer Bank and Trust Co. Ltd v. Wikileaks; Wikileaks.org; Dyandot, LLC) — Alanna Malone

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