I’ve gotten ahold of the Wikileaks order. (Via EFF) It is better than I could have imagined.
Judge White begins by stating the importance of the First Amendment issues in play:
The First Amendment encompasses the “right to receive information and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 762 (19720 (citation omitted); see also Board of Education v. Pico, 457 U.S. 853, 867 (1982) (“the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom”) (emphasis in original).
He also recognizes the futility of his earlier injunction. Some judges would have thrown a tantrum. Not White.
Efficacy of an Injunction.
The record currently before the Court indicates that even the broad injunction issued as to Dynadot had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries all over the world. Further, the press generated by this Court’s action increased public attention to the fact that such information was readily accessible online. The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose. See Nebraska Press Association v. Stuart, 427 U.S. 539, 569 (1976). In addition, there is evidence in the record that “the cat is out of the bag” and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank’s clients. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990); see also Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980) (law that restricts speech must directly advance the state interest involved and may not be sustained if it provides only ineffective or remote support for that purpose.)
And even better, Judge White recognizes that while an injunction might be proper, it needs to be very narrow.
Narrowly Tailored Remedy.
At the TRO hearing, the Court was concerned that because WikiLeaks failed to appear and no interested party appeared on their behalf, the only effective remedy to stop the leaking of personal banking information was the broad remedy it made available by signing the stipulated permanent injunction between Plaintiffs and Dynadot. However, now that the Court has the full panoply of parties and the interested entities before it, the Court is concerned that an injunctive remedy, if any, that may be available to Plaintiffs should be narrowly tailored and the least restrictive means to achieve the purpose of protecting banking clients from disclosure of their personal information. For example, given sufficient evidence that the Court has jurisdiction to hear the matter and that the restriction would be constitutionally valid, the Court might fashion an injunction requiring the limited redaction of identifying information on the leaked documents. Because the Court is not convinced that the existing permanent injunction is the
least restrictive means to achieve Plaintiffs’ goals, this additional reason counsels against maintaining the permanent injunction or issuing a preliminary injunction at this time.
