Judge dissolves Wikileaks shutdown order (updated 2x)

Judge White has had a serious Emily Latella moment.

From The Reporters Committee for Freedom of the Press:

The whistleblower site Wikileaks.org may resume its U.S. operation following a hearing in California federal court today, where Judge Jeffrey S. White dissolved a previous order that required the site to be taken offline and indicated he would not approve a second order prohibiting the site’s publication.

The Feb. 15 orders had required domain name service provider Dynadot to cut off access to the Wikileaks site, disabling the Web address. A Swiss bank had asked the court to require the site to be taken down, arguing it disclosed private banking records.

Acting as a friend of the court, The Reporters Committee for Freedom of the Press and several other media organizations asked the judge earlier this week to take notice of the prior restraint that occurred as a result of those orders. Wikileaks had not appeared in court to defend against charges by the bank that it had improperly posted private information and no First Amendment concerns were raised before the Court.

White’s order of today dissolved the injunction that had prohibited Dynadot from allowing Wikileaks.org to be accessible. It also “tentatively” denied the bank’s request for an order that would keep Wikileaks from independently publishing itself online.

“It’s not very often a federal judge does a 180 degree turn in a case and dissolves an order,” said Reporters Committee Executive Director Lucy A. Dalglish. “But we’re very pleased the judge recognized the constitutional implications in this prior restraint.”

White is expected to issue a full opinion on the matter in the near future. The media coalition’s brief in the case can be found at: www.rcfp.org/news/documents/20080229-amicusbrie.pdf

Shorter Judge White:

“Never mind!”

Update: From ACLU Blog

Free Speech Triumphs in Wikileaks Case

Today was a really good day for the First Amendment. And it was also a good day for our court system. From the very beginning of the argument over what should happen in the Wikileaks case, the judge made it clear that he took the Constitutional issues seriously, at one point reminding the lawyers for the Bank that he had taken an oath to uphold the Constitution. In the end the Court not only dissolved the permanent injunction locking up the Wikileaks.org domain name, he also denied the Bank’s motion for a preliminary injunction that would have required Wikileaks either to take the documents down in their entirety or to redact (black-out) some of the information.

…

[S]ometimes, as in the Wikileaks case, we need something more, because those protected by Section 230 may not take advantage of that protection. We need organizations like the ACLU, EFF, the Project on Government Oversight, Public Citizen and the First Amendment Coalition – and individuals like University of Texas student Jordan McCorkle – who are willing to go to court and move to intervene in an ostensibly private dispute in order to make sure that the public’s right to know is protected. And we need organizations like the Reporters’ Committee for Freedom of the Press and the many media outlets who appeared as “amici curiae” (friends of the court) to make the case that the First Amendment does not allow court orders that silence publication on the internet, any more than it allows the silencing of traditional media. And that’s what happened today. The First Amendment advocates made their case and the Court listened. As a result, the public’s right to know and the press’ right to publish, including websites such as Wikileaks, remains protected.

Today was a very good day.

It certainly was a very good day for both the 1st Amendment and the Internet.

Update 2:

The actual court order is here (PDF).

Some highlights:

On the 1st Amendment generally:

Although the matter of the First Amendment implications of the permanent injunction against Dynadot or the more limited preliminary injunction Plaintiffs seek against WikiLeaks has not been fully briefed, it is clear that in all but the most exceptional circumstances, an injunction restricting speech pending final resolution of the constitutional concerns is impermissible. See Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-27 (6th Cir. 1996).

“The cat is out of the bag”

The record currently before the Court indicates that even the broad injunction issued as to Dynadot had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries allover the world. Further, the press generated by this Court’s action increased public attention to the fact that such information was readily accessible online. The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose. See Nebraska Press Association v. Stuart, 427 U.S. 539, 569 (1976).

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. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980) (law that restricts speech must directly advance the state interest involved and may not be sustained if it provides only ineffective or remote support for that purpose.)

In its order the court also suggests that it may end up dismissing the case entirely due to a lack of jurisdiction.  Obviously, Judge White has finally realized just what a 1st Amendment mine field he has stepped into, and is trying to backtrack his previous steps to get out of it.

Yet even if Judge White doesn’t dismiss this case outright, the damage to the bank for its ill considered attempt to use the Federal courts as a tool for censorship is already done.  Far from removing the incriminating documents from the public eye, Julius Baer’s blunder now means these documents are the main feature of a cause celeb that has generated the interest of millions of people around the globe, and many who would have otherwise never had known the documents existed are now fully aware of their incriminating contents.

What’s more, the boomerang effect of the bank’s lawsuit will make other would be censors think twice about trying to use the courts to silence opposition – while the bad publicity Dynadot received for cravenly caving to the bank’s intimidation should make other ISPs understand that they need to stand up against corporate bullies, and not sell out their customers at the first whiff of a lawsuit.

All in all, very positive developments.