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.
Although the process that led to the issuance of the first injunction was flawed, it was flawed because there was no one there to speak up for the First Amendment rights of the people who turn to the Wikileaks site as a valuable source of information. One of the lessons we all need to keep in mind from this experience is that there are "gate-keepers" on the internet, such as domain name registrars, who play a vital role in allowing information to flow on the internet.
When these gatekeepers get dragged into court as part of a dispute in which they don't really have a stake, their main interest may be to avoid costly litigation. In order to avoid incurring those costs, intermediaries may not stand up for the important First Amendment rights of others that are at stake. That's why Section 230 of the Communications Decency Act is so important. It provides immunity to internet intermediaries when private parties try to hold them responsible for content on the internet that originates with a third party.
But sometimes, 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.