Court's Order Recalls the Earliest Free Press CaseTerry Francke
February 25, 2008 — 1,248 views
The New York Times provides the most thorough early account of a federal judge in San Francisco recently ordering the disabling of a website devoted to disclosing leaked confidential documents, "in a move that legal experts said could present a major test of First Amendment rights in the Internet era." The best recent report on what information a Swiss bank wanted kept secret and who's behind Wikileaks has been done by The Guardian in England, where the website is based.
For technical reasons the judge's order did not and could not entirely block access to Wikileaks. But the fact that the judge tried to do just that, and believed he had the authority to do so is astonishing, given that the very first case in the United States Supreme Court invoking the First Amendment as protection for the press and declaring the constitution's repugnance for prior restraint involved-at least for its day-a very similar annihilating spirit.
Near v. Minnesota, 283 U.S. 697 (1931), involved a state law that allowed officials to shut down ("abate"), as a "nuisance," scandal-focused publications that offended those in private prominence or public power. Minneapolis officials used the law to close a tabloid of just that character published by a man described by a historian of the incident as "anti-Catholic, anti-Semitic, anti-black and anti-labor." In the words of Justice Charles Evans Hughes for the Supreme Court, the last straw was added when the newspaper's articles charged in substance that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the Chief of Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The County Attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The Mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the first issue of the periodical had been published.
If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction-and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is punishable as a contempt. This is of the essence of censorship.
. . . the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . These limitations are not applicable here . . .
(Emphasis added) Despite Justice Hughes's refusal to call the rule against prior restraint absolute, in the 77 years since Near the Supreme Court has been confronted with only a handful of prior restraints and has struck down all but one of them (the proposed broadcast of a confidential phone conference between imprisoned former Panamanian dictator Manuel Noriega and his attorney). Otherwise, the court has held unconstitutional measures taken against the press to prevent publication of:
the Pentagon's classified history of the Vietnam War, during that war, because the government was not able to meet its "heavy burden of showing justification for the imposition of such a restraint" on national security grounds. New York Times Co. v. United States, 403 U.S. 713 (1971); information about a sensational capital murder case the public disclosure of which might deny the defendant a fair trial, since the trial court had not made express findings that the no-publish order would be effective in averting the feared prejudice, and that all procedural alternatives to protect the defendant's Sixth Amendment rights would be inadequate or unworkable. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); and an injunction issued by an Oklahoma judge, ordering the media not to publish the name or photograph of an 11-year-old boy obtained in a rare open proceeding, in that once the court had placed the identity information in the public domain by admitting the press to the proceeding, it could not then forbid its dissemination. Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977).
Note that in all four of these prior restraint cases, the challenged orders purported only to forbid the publication of particular information whose release would be irretrievably damaging to the public or private interests. In contrast, Judge Jeffrey S. White's order harks back to Near v. Minnesota's publication "abatement" in its totality. Dynadot, the American company conveying Wikileaks to the Internet by providing its domain name was told, effectively, to shut the website down-and surrender all related records. A second order issued the same day focused on the bank information that the plaintiff sought to keep secret, and ordered Wikileaks to remove it from any of its websites.
A full hearing on the orders was set for the leap year day this Friday, February 29, and if the court does not withdraw the prior restraint elements of both orders, they are destined for almost certain reversal in the U.S. Court of Appeals for the Ninth Circuit. If the matter were then to go to the Supreme Court, an interesting footnote might be that in the Noriega case-the sole instance in which the court has permitted a prior restraint to stand-a Deputy Solicitor General who co-wrote the brief for the government seeking that result was John G. Roberts, Jr., now Chief Justice.
Over all these periods Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights; written the most widely used guidebooks to the law governing open meetings, open courts and public records in California; served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and Propositioin 59 of 2004, making open government a basic right of citizens under the California Constitution. Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.