Prior Restraints

Yesterday, a California appellate court struck down a brazenly unconstitutional preliminary injunction prohibiting two defendants from making "false and defamatory statements" about, or publishing the "confidential personal information" of, Thomas Evans, a deputy sheriff in San Diego. The case, Evans v. Evans, 2008 WL 2009669 (Cal. Ct. App. May 12, 2008), involves a nasty post-divorce dispute between Thomas Evans and his former wife, Linda Evans, and her mother, Shirley Preddy. Linda and Preddy allegedly posted false statements about Thomas on various websites, filed complaints about him with his employer, and published confidential information from his medical and financial records on the Internet. The lower court granted Thomas a broad preliminary injunction against their alleged misconduct, without specifying any particular forbidden statements or defining what "confidential personal information" means.

The appellate court held that the preliminary injunction was an unconstitutional prior restraint on speech, and that it was unconstitutionally vague because it failed to alert Linda and Preddy as to what conduct would violate the court's order. The case itself is relatively prosaic; it is interesting largely because it demonstrates yet again just how unfamiliar many lower court judges are with basic First Amendment principles. Beyond that, it tells us two important things about California law relating to prior restraints:   read more »

As if the order by Judge White vacating the injunctions in the Wikileaks case weren't enough, the Banks that brought the case have now filed a notice of dismissal seeking to voluntarily dismiss the entire case. It's a short filing, so I've quoted it in its entirety below:

PLEASE TAKE NOTICE that Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD (“Plaintiffs”) hereby voluntarily dismisses, without prejudice, the above captioned action in its entirety,whereby Plaintiffs may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue.

Pursuant to Fed. Rules of Civil Proc., Rule 41(a)(1)(i), Plaintiffs have the absolute right to dismiss the action “without order of the court” by filing a notice of dismissal “at any time before service by the adverse party of an answer or of a motion for summary judgment” Id.; See Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc. (9th Cir. 1999) 193 F.3d 1074, 1077.

Query whether this case should be dismissed with prejudice. Clearly the Banks don't think so -- their notice of dismissal is without prejudice -- but that is worth looking into. Note also that the Banks have stated that they "may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue." I don't think we've seen the last of this dispute.

Other CMLP blog posts on the Wikileaks case:   read more »

We've just received word that the judge in the Wikileaks case, Jeffrey White, has vacated the Permanent Injunction that ordered Wikileaks' domain name registrar, Dynadot, to disable the entire Wikileaks.org domain name and remove all DNS hosting records. The judge also refused to renew the Temporary Restraining Order that enjoined Wikileaks from publishing or distributing copies of purported bank documents and tentatively denied the plaintiffs' motion for a preliminary injunction, indicating that he would issue an order addressing the motion in the near future.

For now, the only official record from the hearing is a one-page "Minute Order" issued by the clerk. CNET News has also just posted an update on the hearing. As we get more information, we'll update this post.   read more »

I have a column running on the Guardian’s website. It’s entitled “Freedom of information” — and is reprinted below:

What does a Swiss bank that does business in the Cayman Islands have in common with a Hong Kong actor who jets around the globe? They are object lessons this month in a reality that anyone handling information needs to understand. Like toothpaste squeezed from a tube, information, once out in the wild, is all but uncontainable.

The Julius Baer Bank is a protagonist in the now-famous Wikileaks case. The bank’s lawyers managed to persuade a US federal judge, Jeffrey White, that the first amendment of the US Constitution had no meaning, obtaining an injunction and follow-up order that, among other things, required blocking the visibility of the domain wikileaks.org in the internet’s Domain Name System (DNS). A former bank employee had posted documents on the anonymous whistle-blowing website, allegedly describing shady dealings - hmmm, Cayman Islands, Swiss banks - on behalf of clients.

“The orders don’t just direct the take down of existing content, they also enjoin any future publication of the material,” says David Ardia, director of the Citizen Media Law Project at Harvard University Law School’s Berkman Center for Internet & Society (of which I’m a co-founder). “Even more significantly, the second order requires anyone who receives notice of the order to refrain from publishing, distributing or linking to the documents.”   read more »

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, Gannett, 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."   read more »

Yesterday, I reported that a federal judge in San Francisco had issued a stunningly broad injunction that brought down Wikileaks.org, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis." (I'll let the prescience of that statement sink in on its own.)

The plaintiffs in the case, a Cayman Islands bank and its Swiss parent company, probably thought they could slip into court in California right before a holiday weekend and silently silence a critic that had made them and their customers look bad. So much for that plan.

First, the banks overreached. They worked out what appears to be a sweetheart deal with Wikileaks' domain name registrar, Dynadot. Even though Dynadot appears to bear no liability for the material at issue, the banks added Dynadot as a defendant in the case. No doubt thinking they had come up with a legal "silver bullet," the banks and Dynadot signed a joint stipulation in which Dynadot agreed to, among other things, "lock" and "disable the wikileaks.org domain name" in exchange for being dismissed from the case (a case in which, it appears, Dynadot bore no liability). To give their stipulation the force of law, the banks slipped an order to the judge, which he promptly signed.   read more »