Washington Post Death Spiral Watch (Matthew Mosk Edition)
"Commitment" to Health Care Reform

Prior Restraint...

Michael Froomkin writes:

Discourse.net: On the fringes of the public sphere:Federal District Court Judge Jeffrey S. White of the Northern District of California has issued a pair of (unprecedented?) ex parte orders in a case brought by Bank Julius Bear against Wikileaks.org.... One order requires an ISP, Dynadot, to take down all DNS records pertaining to the wikileaks.org site.... I presume Dynadot was their registrar as this had the effect of making the wikileaks.org domain inoperative.... This isn't a classic prior restraint on speech since it reaches the registrar not the speaker -- but it's close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern. The IP numbers for the site still work, though. Try

The second order is a much broader gag order that enjoins everyone sued by the plaintiffs... and "all others who receive notice of this order" (!) and orders them not to do any of the following: "displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property -- and any information or data contained therein, including on [listed websites or other websites they control]."

Leaving aside the sweep of the order -- on what theory does this court have jurisdiction of everyone who learns of the order? -- this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I'm pretty skeptical.... Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar -- not foreclosed utterly...