e-Speech Is Looking Like Free Speech With More Than Just Some Letters Missing

The instances cited above of prior restraint of speech, and others, exemplify a movement toward transforming Internet speech into semi-free speech.

The California Case

In Bank Julius Baer & Co. Ltd v. Wikileaks, 2008 WL 554721 (N.D.Cal.), the Northern District of California issued an order shutting down a U.S.-based Internet site for posting internal documents accusing a bank branch in the Cayman Islands of money-laundering and tax-evasion schemes. The plaintiff, a Zurich-based bank, stated that an employee illegally posted the documents on the Web site of Wikileaks, the uncensorable version of Wikipedia, and sued Wikileaks, alleging that it had posted confidential financial data.

Instead of proceeding directly against Wikileaks to stop the publication of disputed content, which might have been barred by Constitutional concerns, the plaintiffs moved against Wikileaks' American domain-name host. The plaintiffs, rather than requesting a restraint of publication, asked for changes to certain Internet protocols. Consequently, the court issued an order for permanent injunction requiring the U.S.-based company, which hosted the Wikileaks domain name, to remove the name-server settings for the Web site of Wikileaks rather than issuing an order restraining the Internet publication of content. The judge in Bank Julius Baer & Co. Ltd. attempted to shut down an entire Web site by ordering the removal of an Internet name from the Internet Domain Name system, rather than prohibiting the publication of content under guidelines and rulings that would have made such prohibition legally permissible. In essence, the court issued an order for a permanent injunction that shut down the entire Wikileaks site instead of narrowly ordering the removal of the disputed materials. Consequently, a claim of unconstitutional 'prior restraint' by the government of an entire publishing organization was made and the bank faced a severe setback in a subsequent court ruling. After that ruling, Bank Julius Baer filed a note with the court stating that it would voluntarily dismiss its own case, while reserving the right to file it again in the future or pursue it in an alternative court, jurisdiction or venue.

Actions Abroad

This restraint is not limited to the United States. Around the globe, technology has been regularly used by governments to limit speech. For example, China, Morocco and Turkey have prevented publication of unwanted content by limiting Internet access within their own countries. However, on Feb, 24, Pakistan used technology to limit speech; not its own speech, but rather that of people in the United States. Specifically, government officials in Pakistan who were unhappy with certain U.S. YouTube Internet content used technology to block almost all publications by the YouTube Internet site to those using the Internet in Pakistan.

To limit YouTube publications, YouTube access requests were routed to an Internet dead end in accordance with Pakistani governmental-initiated Internet-protocol changes. The Pakistani self-help action resulted in at least 97 major Internet providers and thousands of smaller ones automatically choosing to block all access in Pakistan to YouTube.

The term self-help refers to private actions taken by those involved in a transaction to prevent or resolve disputes without assistance from a court, a government official or a disinterested third party. In the past, courts have normally not favored the use of self-help methods to remedy a contract breach, because unhindered self-help has great potential to produce unfair results.

Congressional Activity

During 2007, Congress initiated numerous bills to protect Americans, particularly children, from harm due to Internet speech by restricting certain Internet publications. The reason for such action is understandable. For jurisdictional reasons, federal legislation cannot readily govern Internet sites outside the United States, even though they are accessible within the United States. With a substantial percentage of Internet harmful speech hosted on Internet sites that exist outside the United States, even the strict enforcement of American statutes is likely to have only a marginal effect on the availability of such material to Internet users in the United States.

Consequently, bills have been introduced to prohibit certain Internet content publications. A brief look at two of these bills follows.

The Kids Act. The nickname for the Sex Offender E-mail Registry (S. 431; passed by Senate Judiciary Committee) would likely reduce blogging and social-networking sites' ability to offer certain types of content. In particular, the definition of commercial social networking Web site in S. 431 would include many Internet social-network sites, blogs and a growing number of commercial sites. These Internet sites would have to bear the significant cost of screening their users against an e-mail registry of people who are barred from participating in certain sites or must restrict their Internet content. Failure to restrict access or refrain from publishing certain content would be unlawful. However, if such legislation is enacted, it is likely to be a form of publication restraint and hence unconstitutional.

The Safe Act. The short form of the Government Internet Site and Content Blacklist (H.R. 3791; passed by the House) is another example of governmental prior restrain on publication. This bill would authorize the creation of a federal blacklist of certain content and Web sites that were allegedly harmful, such as child-pornography sites, and then distribute the blacklist to Internet service providers ('ISPs') with a demand that the ISPs block this content before it is published on the Internet. Proponents of the legislation argue that it is constitutional because private entities would exercise the prior restraint. But because the Safe Act is a federal program, which would violate the First Amendment under the Supreme Court's decision in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), it is likely that the legislation would be found unconstitutional, if enacted.

First Amendment: No Prior Restraint

Most interpretations of the First Amendment have found a clear intent to prohibit prior restraints on publications. The Supreme Court held on two separate occasions that injunctions preventing the exercise of speech should be viewed very skeptically (see, Near v. Minnesota, 283 U.S. 697 (1931) and New York Times v. United States, 403 U.S. 713 (1971)). The Supreme Court also found that such injunctions carry a presumption of unconstitutionality.

In Near v. Minnesota, the Supreme Court considered an injunction issued by Minnesota courts against The Saturday Press. After finding that several editions of The Saturday Press carried articles that were malicious, scandalous or defamatory, the state courts enjoined future publications. The Supreme Court concluded that after-publication punishment was a preferable remedy than restraining speech.

In New York Times v. United States, the government wanted to stop the publication of the stolen 'Pentagon Papers' by The New York Times. The government argued that the publication was a threat to national security. The court concluded that a prior restraint on publication of excerpts from the 'Pentagon Papers' violated the First Amendment.

In Reno v. ACLU, 521 U.S. 844 (1997), the court found that Internet speech restrictions merit the same level of scrutiny as traditional speech. In particular, the unanimous Reno court ruled that the Internet is a free-speech zone deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

Free Internet Speech Is Still Fragile

From a technological perspective, the Internet is the most used form of speech publication yet developed. However, it still requires the action of our courts to maintain its free-speech status, a status that will, in a ripple effect, also have an impact on the conduct of e-commerce because, while advertising and business enjoy less protection than political speech, forums and other Internet 'venues' connected to commerce might find themselves subject to restraints if the apparent trend discussed here continues.

The future will likely bring more court action such as the Bank Julius Baer & Co. case and an expressed dissatisfaction by the courts for self-help actions as exemplified by the YouTube blackout in Pakistan. And for the time being, at least, Internet speech will be reduced to semi-free speech as even Congress tries to enact, though surely with difficulty in the face of evident constitutional issues, legislation restraining such speech.

On our own shores, a California court in February took prior restraint, an idea that is anathema to the First Amendment and against which the Supreme Court has many times ruled in instances of traditional ink-on-paper publishing, ordered an entire Web site to be shut down to prevent the publication of a disputed document.

On other shores ' where, of course, e-commerce interests typically practice business without impingement by physical geographical barriers ' a Pakistani agency used self-help technical means to disable an American Internet site to stop it from disseminating content.

Legislatively, during 2007, Congress introduced an unprecedented number of bills intended to impose mandates on, or limit access to, social networking sites for the specific purpose of restricting speech before it occurs.

The instances cited above of prior restraint of speech, and others, exemplify a movement toward transforming Internet speech into semi-free speech.

The California Case

In Bank Julius Baer & Co. Ltd v. Wikileaks, 2008 WL 554721 (N.D.Cal.), the Northern District of California issued an order shutting down a U.S.-based Internet site for posting internal documents accusing a bank branch in the Cayman Islands of money-laundering and tax-evasion schemes. The plaintiff, a Zurich-based bank, stated that an employee illegally posted the documents on the Web site of Wikileaks, the uncensorable version of Wikipedia, and sued Wikileaks, alleging that it had posted confidential financial data.

Instead of proceeding directly against Wikileaks to stop the publication of disputed content, which might have been barred by Constitutional concerns, the plaintiffs moved against Wikileaks' American domain-name host. The plaintiffs, rather than requesting a restraint of publication, asked for changes to certain Internet protocols. Consequently, the court issued an order for permanent injunction requiring the U.S.-based company, which hosted the Wikileaks domain name, to remove the name-server settings for the Web site of Wikileaks rather than issuing an order restraining the Internet publication of content. The judge in Bank Julius Baer & Co. Ltd. attempted to shut down an entire Web site by ordering the removal of an Internet name from the Internet Domain Name system, rather than prohibiting the publication of content under guidelines and rulings that would have made such prohibition legally permissible. In essence, the court issued an order for a permanent injunction that shut down the entire Wikileaks site instead of narrowly ordering the removal of the disputed materials. Consequently, a claim of unconstitutional 'prior restraint' by the government of an entire publishing organization was made and the bank faced a severe setback in a subsequent court ruling. After that ruling, Bank Julius Baer filed a note with the court stating that it would voluntarily dismiss its own case, while reserving the right to file it again in the future or pursue it in an alternative court, jurisdiction or venue.

Actions Abroad

This restraint is not limited to the United States. Around the globe, technology has been regularly used by governments to limit speech. For example, China, Morocco and Turkey have prevented publication of unwanted content by limiting Internet access within their own countries. However, on Feb, 24, Pakistan used technology to limit speech; not its own speech, but rather that of people in the United States. Specifically, government officials in Pakistan who were unhappy with certain U.S. YouTube Internet content used technology to block almost all publications by the YouTube Internet site to those using the Internet in Pakistan.

To limit YouTube publications, YouTube access requests were routed to an Internet dead end in accordance with Pakistani governmental-initiated Internet-protocol changes. The Pakistani self-help action resulted in at least 97 major Internet providers and thousands of smaller ones automatically choosing to block all access in Pakistan to YouTube.

The term self-help refers to private actions taken by those involved in a transaction to prevent or resolve disputes without assistance from a court, a government official or a disinterested third party. In the past, courts have normally not favored the use of self-help methods to remedy a contract breach, because unhindered self-help has great potential to produce unfair results.

Congressional Activity

During 2007, Congress initiated numerous bills to protect Americans, particularly children, from harm due to Internet speech by restricting certain Internet publications. The reason for such action is understandable. For jurisdictional reasons, federal legislation cannot readily govern Internet sites outside the United States, even though they are accessible within the United States. With a substantial percentage of Internet harmful speech hosted on Internet sites that exist outside the United States, even the strict enforcement of American statutes is likely to have only a marginal effect on the availability of such material to Internet users in the United States.

Consequently, bills have been introduced to prohibit certain Internet content publications. A brief look at two of these bills follows.

The Kids Act. The nickname for the Sex Offender E-mail Registry (S. 431; passed by Senate Judiciary Committee) would likely reduce blogging and social-networking sites' ability to offer certain types of content. In particular, the definition of commercial social networking Web site in S. 431 would include many Internet social-network sites, blogs and a growing number of commercial sites. These Internet sites would have to bear the significant cost of screening their users against an e-mail registry of people who are barred from participating in certain sites or must restrict their Internet content. Failure to restrict access or refrain from publishing certain content would be unlawful. However, if such legislation is enacted, it is likely to be a form of publication restraint and hence unconstitutional.

The Safe Act. The short form of the Government Internet Site and Content Blacklist (H.R. 3791; passed by the House) is another example of governmental prior restrain on publication. This bill would authorize the creation of a federal blacklist of certain content and Web sites that were allegedly harmful, such as child-pornography sites, and then distribute the blacklist to Internet service providers ('ISPs') with a demand that the ISPs block this content before it is published on the Internet. Proponents of the legislation argue that it is constitutional because private entities would exercise the prior restraint. But because the Safe Act is a federal program, which would violate the First Amendment under the Supreme Court's decision in Bantam Books, Inc. v. Sullivan , 372 U.S. 58 (1963), it is likely that the legislation would be found unconstitutional, if enacted.

First Amendment: No Prior Restraint

Most interpretations of the First Amendment have found a clear intent to prohibit prior restraints on publications. The Supreme Court held on two separate occasions that injunctions preventing the exercise of speech should be viewed very skeptically ( see , Near v. Minnesota , 283 U.S. 697 (1931) and New York Times v. United States , 403 U.S. 713 (1971)). The Supreme Court also found that such injunctions carry a presumption of unconstitutionality.

In Near v. Minnesota, the Supreme Court considered an injunction issued by Minnesota courts against The Saturday Press. After finding that several editions of The Saturday Press carried articles that were malicious, scandalous or defamatory, the state courts enjoined future publications. The Supreme Court concluded that after-publication punishment was a preferable remedy than restraining speech.

In New York Times v. United States, the government wanted to stop the publication of the stolen 'Pentagon Papers' by The New York Times. The government argued that the publication was a threat to national security. The court concluded that a prior restraint on publication of excerpts from the 'Pentagon Papers' violated the First Amendment.

In Reno v. ACLU , 521 U.S. 844 (1997), the court found that Internet speech restrictions merit the same level of scrutiny as traditional speech. In particular, the unanimous Reno court ruled that the Internet is a free-speech zone deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

Free Internet Speech Is Still Fragile

From a technological perspective, the Internet is the most used form of speech publication yet developed. However, it still requires the action of our courts to maintain its free-speech status, a status that will, in a ripple effect, also have an impact on the conduct of e-commerce because, while advertising and business enjoy less protection than political speech, forums and other Internet 'venues' connected to commerce might find themselves subject to restraints if the apparent trend discussed here continues.

The future will likely bring more court action such as the Bank Julius Baer & Co. case and an expressed dissatisfaction by the courts for self-help actions as exemplified by the YouTube blackout in Pakistan. And for the time being, at least, Internet speech will be reduced to semi-free speech as even Congress tries to enact, though surely with difficulty in the face of evident constitutional issues, legislation restraining such speech.