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EFF spearheaded an online prior restraint case that recently had a mixed outcome. |
On Jan. 19
I wrote about a case of court-ordered prior restraint involving confidential leaked documents from pharmaceutical giant Eli Lilly. The attorney who received those documents (as part of the discovery process in a lawsuit over the top-selling schizophrenia drug Zyprexa) distributed them to various parties -- and of course they wound up on the net.
Eli Lilly petitioned a U.S. District Court to have all copies of the documents returned. The preliminary injunction issued also made it illegal for anyone to post or even link to the documents online -- an unusual move that the Electronic Frontier Foundation (EFF) considered prior restraint.
EFF fought this injunction in court and, as of last week, won -- sort of. According to EFF's Feb. 8 release: "A U.S. District Court judge today refused Eli Lilly's request to ban a number of Web sites from publishing leaked documents relating to Zyprexa. ...Although the judge rejected the First Amendment arguments made by a variety of individuals eager to publish the documents, the court concluded that 'it is unlikely that the court can now effectively enforce an injunction against the Internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so.'"
Download the most recent court order on this case. The core of the First Amendment discussion is on pages 65-68.
I asked EFF attorney Fred von Lohmann what this ruling might mean for news organizations or others seeking to publish the next Pentagon Papers. He said, "As far as I know, this is the first published court ruling to ever approve a prior restraint on pure speech about a matter of public concern on the part of individuals who did nothing illegal in receiving the documents in question. It's very difficult to see how this can be squared with the Supreme Court's ruling in Bartnicki v. Vopper [a case that relieved a media defendant of liability for broadcasting a tape conversation of a labor official talking to other union people about a teachers' strike]."
Also, von Lohmann observed that the recent Zyprexa ruling is "particularly ironic as it comes on the heels of the similar prior restraint approved by a court in Los Angeles handling the ParisExposed.com case."
To boil it down, this ruling leaves ample room for future courts to enact online prior restraint. And again, it's not just about posting leaked documents online, but linking to them. Not the best situation for investigative journalists and other muckrakers.
News and journalism organizations might want to chat with their attorneys about this one. And you might want to quietly arrange some offshore, third-party Web hosting space, just in case...
See EFF for more on the case.
