New Jersey Law Journal Volume 192, No. 3                       April 21, 2008

E-SPEECH BECOMING SEMI-FREE SPEECH - RECENT GOVERNMENTAL MOVEMENT TOWARDS MAKING INTERNET SPEECH RESTRICTED

Jonathan Bick   Bick is counsel to WolfBlock of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law (Random House) .

Recent court decisions, Congressional legislation and foreign governmental self-help actions appear to be aimed at transforming the new millennium's icon of free speech --; the Internet --; into a semi-free speech source. In February, a California court ordered an entire Web site to be shut down to prevent the publication of a disputed document. In terms of foreign actions, a Pakistani agency used self-help technical means to disable an American Internet site to stop it from disseminating content. Legislatively during the year of 2007, the U.S. 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 above instances of prior restraint of speech and others exemplify a movement towards making Internet speech into semi-free speech.

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 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's American domain name host. The plaintiffs, rather than requesting a restraint to publication, requested 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 Web site of Wikileaks rather than issuing an order retaining 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.

The Court issued an order for permanent injunction that shut down the entire Wikileaks Internet 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 it would voluntarily dismiss its own case, while reserving the right to file it again in the future or pursue it in an alternate court, jurisdiction or venue.

This restraint is not limited to the United States --; all around the globe technology has been regularly used by governments to limit speech. For example, China, Morocco and Turkey have all 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 the United States. More specifically, government officials in Pakistan who were unhappy with certain United States YouTube Internet content employed technology to block almost all publications by the YouTube Internet site.

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 to automatically choose to block access to YouTube completely.

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 governmental 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.

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 are likely to only have a marginal effect on the availability of such material on the Internet in the United States.

Consequently, bills have been introduced to prohibit certain Internet content publications. For example, the 'Kids Act' --; Sex Offender E-mail Registry (S. 431, passed by Senate Judiciary Committee) would likely reduce the ability of blogging and social networking sites to offer certain types of content. In particular, the definition of 'commercial social networking website' 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' --; 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, and then distribute the black list to Internet service providers (ISPs) with a demand that the ISPs block this content before it is published via the Internet.

Proponents of the legislation argue it to be constitutional because it would be performed by private entities. However, since 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 the legislation would like be found unconstitutional, if enacted.

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 Saturday Press published articles were malicious, scandalous, or defamatory, the state courts enjoined future publications. The Supreme Court concluded that after-publication punishment was a more preferable remedy than restraining speech.

In New York Times v. United States, the United States wanted to stop the publication of 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.

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. 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 case black out. For the time being, Internet speech will be reduced to semi-free speech as Congress will likely have difficulty enacting legislation restraining such speech due to unconstitutionality issues