As we noted Monday, a Swiss bank convinced a California judge to issue an order blocking access to WikiLeaks.org. The New York Times makes clear this morning that it was a ham-handed and probably unconstitutional move.
Ham-handed because even though the injunction was sweeping in its scope (disabling access to the domain name), it will certainly not accomplish its goal, which was to restrict dissemination of the documents. Not only have dozens of mirror sites cropped up to host the documents, but the publicity from the move has also increased scrutiny on the bank, Julius Baer, and heightened WikiLeaks’ supporters’ resolve. Update: And the site is still available via its IP address. The documents allegedly show the bank’s efforts to set up shell entities to hide money. And as for the unconstitutional part:
Judge [Jeffrey] Whiteâs order disabling the entire site âis clearly not constitutional,â said David Ardia, the director of the Citizen Media Law Project at Harvard Law School. âThere is no justification under the First Amendment for shutting down an entire Web site.â
The narrower order [also issued by the judge], forbidding the dissemination of the disputed documents, is a more classic prior restraint on publication. Such orders are disfavored under the First Amendment and almost never survive appellate scrutiny.
When I asked Julian Assange, a member of WikiLeaks’ advisory board and its investigations editor, whether WikiLeaks plans to contest the injunction in court, he replied by email, “Bloody oath we will.”
He said that WikiLeaks, which relies on pro bono representation, was currently in talks with a number of lawyers and organizations for possible representation. As Wired reported, the site was caught by surprise late last week, receiving “notice only a few hours before the case went to a judge who accepted the agreement between Dynadot [WikiLeaks’ domain registrar] and the bank.”
My inquiries to Julius Baer’s attorneys about possible future actions were forwarded to a spokesman for the bank in Switzerland, who replied “We have always sought to act in the best interests of our clients and shall continue to do so.”
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