No Comment — February 20, 2008, 4:53 am

Freedom of the Press, Bush Edition

Today No Comment features an interview with Anthony Lewis based on his new book Freedom for the Thought That We Hate: A Biography of the First Amendment. Lewis celebrates the triumph of modern First Amendment liberties, starting with the writings of Oliver Wendell Holmes, Jr. and Louis Brandeis, through the break-through year of 1931, when the Supreme Court finally began to take the First Amendment seriously and on to current issues relating to commercial speech, the internet and political speech.

Two stories out in the current press cycle reflect some judicial wrinkles in the rush to embrace broad First Amendment protections. The first out of California has a federal judge shutting down one of the world’s most important Internet publishers with a gesture of shocking nonchalance. Here is the report this evening from the Associated Press:

A federal judge has set off a free speech tempest after shutting down a U.S. Web site for posting internal documents accusing a Cayman Islands’ bank branch of money laundering and tax evasion schemes. . .

“This is akin to seizing all the copies of the New York Times, locking the doors and ordering the landlords not to let anyone back in the building,” said Julie Turner, a Palo Alto Internet attorney who briefly represented Wikileaks, but not during last week’s hearing in front of White. Wikileaks was not represented at that hearing. Wikileaks said in a statement that shutting down the entire Web site — instead of narrowly ordering the removal of the disputed materials — amounts to unconstitutional “prior restraint” by the government of an entire publishing organization.

Wikileaks vowed to continue publishing the bank’s documents on its other Web sites hosted by companies outside the United States. Wikileaks’ Web site says it was launched by Chinese dissidents, journalists and others, but it’s unclear where the organization is based.

“The order is clearly unconstitutional and exceeds its jurisdiction,” Wikileaks spokesman Julian Assange said in the e-mail statement issued from Paris on Monday. “Wikileaks will keep on publishing. In fact, given the level of suppression involved in this case, Wikileaks will step up publication of documents pertaining to illegal or unethical banking practices.” David Ardia, an Internet speech expert at Harvard Law School, said a court has never before ordered an entire Web site shut down over a document dispute. He said it struck a nerve. “This is a prior restraint in the most extreme fashion,” Ardia said. “This is a judge who doesn’t have a good understanding of the Internet.”

So whereas once the United States was seen as a bastion of free speech which might reach through the developments of modern technology, and particularly the Internet, around the world. Now the tables are turned. U.S. readers have to go to the Wikileak websites in Europe and Asia to read the news, because the U.S. publisher has been shut down through an unconstitutional prior restraint order.

Back on January 8, I reported on an effort by a federal prosecutor in Michigan to ban an advertisement by attorney Geoffrey Fieger which contained a long clip of a speech given by President Bush in which he attacked Fieger. The prosecutor issued subpoenas to a media agency and sought a gag order to block the advertisement. The ostensible ground for this act of suppression of commercial speech was that the ad reflected Bush’s bias against Fieger–which it clearly did–and that the citizens of Michigan must be prohibited from knowing about the president’s public temper tantrum. The prosecution clearly thinks that the linkage of their case with the Decider’s temper will prejudice a Michigan jury against them. They argue that the advertisement constitutes an extrajudicial statement by Fieger about their case. The ad, which can be viewed here, contain no statements about their case whatsoever, only a demonstration of George W. Bush’s pique.

The underside of the prosecution’s argument is that Fieger is engaged in an act of lèse majesté, and he must be silenced and punished for it. Conversely, the prosecution, violating established Justice Department policies and possibly the rule requiring grand jury secrecy, orchestrated the initial raid on the law office as a mass media spectacle. (This is the raid for which an FBI agent stated that he was called back from Iraq to participate in. Of course in the view of the Bush Justice Department, the threat presented by Democratic lawyers raising money for a political campaign trumps al Qaeda as a threat any day). Evidently, highly abusive and potentially criminal misconduct in media dealings by the prosecution is just fine. So we have a media double standard: the defendant is to be gagged, but the prosecutors are left free to break the rules. Of course, the theory operates in reverse: the restrictions on the prosecution are to be severe, and their violation is a breach of a public trust. The defendant is to be given considerably more latitude in public communications, because failing to do so dishonors the First Amendment.

You might think that the First Amendment, not to mention the overthrow of the British monarchy in 1776, put an end to the prosecution’s case. But think again. The Royal Court of Justice sitting in Southfield granted the prosecution’s motion and ordered the ad off the air. Read the decision here.

And who appointed the two fine federal judicial officers and issued them copies of the U.S. Constitution from which the First Amendment has been erased? You guess. George W. Bush, of course.

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