Wikileaks Is Spared a Shutdown As a Federal Judge Reverses Course

How Broadly Will the First Amendment Protect A Website Inviting Leaks of Confidential Documents?by Julie Hilden*An extremely significant case is pending before San Francisco-based U.S. District Judge Jeffrey White — one that has tested, and likely will continue to test, the scope of First Amendment rights on the Internet.The case involves, a website that describes itself as “developing an uncensorable Wikipedia for untraceable mass document leaking and analysis.” Wikileaks further explains that “[o]ur primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behavior in their governments and corporations.”Judge White attracted a lot of press for first ordering Wikileaks and its domain name registrar, Dynadot, to disable its domain name, and then, after a full hearing, reversing himself, in light of the First Amendment issues that are implicated in the case.Some have compared Wikileaks’s situation in the case before Judge White with that of the New York Times in the “Pentagon Papers” case. The “Pentagon Papers” involved the Times’s publication, in 1971, of a lengthy secret government history of the Vietnam War, leaked by former Defense and State Department official Daniel Ellsberg. The Supreme Court ultimately lifted an injunction against the Papers’ publication on First Amendment grounds.Is the comparison a valid one? And, what are the broader implications of this dispute?In this column, Part One, of a two-part series, I’ll review the facts of the case thus far, the federal court’s rulings, and their implications. In Part Two, I’ll assess the “Pentagon Papers” parallel.* Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden’s novel, 3, Kirkus Reviews praised Hilden’s “rather uncanny abilities,” and Counterpunch called it “a must read…. a work of art.” Hilden’s website,, includes free MP3 and text downloads of the novel’s first chapter.

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