One judge at a time

So you can educate a judge. Bravo to EFF, ACLU and their colleagues for reminding Judge White about the First Amendment and persuading him that a take-down order for an entire bulging web site when you’re worried about a few pages isn’t constitutional. (EFF press release, Judge Dissolves Injunction: First Amendment Rights of Internet Users Upheld in Today’s Hearing.) And bravo to the judge for having the grace and judgement to learn and back down.

Media coverage said that Judge White’s initial order was a “prior restraint.”:  I have to say that this puzzles me.  What’s a prior restraint once something has been posted online?:  EFF and the ACLU had to educate this judge about the impracticality of his order – the material was echoed, copied, cached in hundreds of places.  Yes, itself may have gone dark, but the substance was everywhere.  The order was a post restraint and an unconstitutional adventure, but we’ve got to come up with some internet-specific language that adequately expresses our distate for censorship while recognizing the futility of the Wikileaks move.

Maybe the shorthand can simply be “Remember Wikileaks.”

One thought on “One judge at a time

  1. anon

    “Media coverage said that Judge White’s initial order was a ‘priblockquote cite or restraint.’ I have to say that this puzzles me.”

    Professor Crawford,

    The order disabling the domain name appears to have been intended to disable access to the site entirely.

    There are two arguments that this order effected a prior restraint:

    First, disabling access to the site restrains all publishing. It doesn’t merely halt further publication of material already published—it also halts all other publishing.

    Prohibiting publication of material in advance of any publication is a classic prior restraint.

    That is the first argument. The second argument regards the material which was already published, but not yet adjudged on the merits.

    Blackstone’s concept of a previous restraint was heavily influenced by the English licensing system as it existed prior to the expiration of the 1662 Licensing Act in 1694.

    Under this concept of a previous restraint, as it has been extended (see Near), any order halting publication before a judicial determination on the merits—works a prior restraint. This applies not only to administrative decisions by the executive branch, but also, most particularily, to preliminary injunctions by the judiciary (see Pentagon Papers case).

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