Post-wikileaks

From the Spring 2008 issue of The News Media & The Law, page 34.

If there was ever a period of innocence for prior restraints on information, that time has surely passed.

As U.S. District Court Judge Jeffrey C. White recently told a large gathering of lawyers and reporters in San Francisco during the hours-long hearing on Bank Julius Baer’s request for a preliminary injunction, “the genie is out of the bottle.”

White appreciated how futile it was to restrain the publication of the bank’s internal documents that were already widely available on the Internet. Once posted on www.wikileaks.org, the confidential documents could be read by anyone.

Ironically — but predictably — the court’s order brought world-wide attention to the very documents that the bank sought to keep secret.

The “genie is out of the bottle,” the “cat is out of the bag,” the “horse has left the stable” — all the clichés possible were said. All were apt.

Decades earlier, when Daniel Ellsberg was making photocopies of the Pentagon Papers to leak to the New York Times and the Washington Post, he simultaneously prepared himself for a long prison term if he was revealed as the source.

Concerned that his son might be falsely told that his father only acted because he was insane, Ellsberg purposefully took steps so that his son might appreciate that he knowingly leaked the Pentagon Papers because he felt doing so could change the course of the Vietnam War.

Yet Ellsberg was not alone; Ellsberg had a backstop — he wasn’t the sole individual making the decision as to whether the public would learn this information.

Editors at The New York Times and The Washington Post ultimately made the final decision about what to publish after weighing the importance of this secret information to the public.

The Supreme Court, in its landmark Pentagon Papers decision, New York Times Co. v. United States, recognized that the First Amendment protects this editorial process; other decisions of the court have prohibited prior restraints in nearly every circumstance, even where national security may be at risk and the press’ source is alleged to have obtained the information unlawfully.

If they choose to do so, the Daniel Ellsbergs of today can skip the editorial process and instantly publish their information to the world.

Whether using www.wikileaks.org or the growing number of other Web sites available online, confidential documents can be published first and analyzed second.

And, as in the case with Wikileaks.org, there may be no one from the Web site to answer questions or respond to judicial process.

The potential implications of this change are unfathomable. For the law of prior restraint, there is no going back.

To anyone who attended the Feb. 29 Wikilieaks hearing in San Francisco, it was obvious that White had no idea that his attempt to silence Wikileaks would be so ineffective or that it would spark the legal avalanche that it did.

It was nevertheless impressive to witness White’s willingness to reverse direction once he realized that, as a matter of substantive First Amendment prior restraint law, a continued prior restraint order would be ineffective.

He didn’t have to rule this way and could have creatively gone in many other directions.

In the Wikileaks era when confidential information can be instantly posted online to a world-wide audience before any prior restraint can issue, if litigation follows, a heightened legal focus will invariably be shifted to how to punish — after the fact — those responsible for posting confidential information, both the source and the owner of the Web site.

While Wikileaks steadfastly pledges to safeguard the anonymity of those who post confidential documents, post-publication, it seems inevitable that the identity of sources of confidential information will be even more closely scrutinized through litigation.

In the process, the substantive law that governs traditional source-publisher protections for other forms of media may be revisited.

Moreover, not all judges will be willing to exercise the kind of restraint shown by White and instead will look for ways to still impose some form of prior restraint to placate the demands of an aggrieved plaintiff, in spite of technology.

The very fact that confidential documents can be instantly posted online by sources — bypassing the traditional editorial review process long safeguarded by the First Amendment — will not be lost on future litigants or judges.

Future lawsuits challenging such Internet postings may narrowly redraw the contours of prior restraint law for the traditional media as they continue to exercise a rigorous editorial review process before publishing confidential information.

These are the many substantive changes that journalists face in the wake of Wikileaks.

— Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine LLP. For nearly two decades, Burke has defended journalists and publishers in libel, privacy, shield law and other First Amendment litigation and, over the past decade, increasingly represents online publishers. Burke also teaches a class in media law at the University of California Berkeley’s Graduate School of Journalism.