Swiss Bank Drops Controversial Wikileaks Suit

The drama began shortly after the bank filed a complaint against Wikileaks and Dynadot for posting leaked documents. After an initial review, Judge Jeffrey White ordered Dynadot, a California Web-hosting company, to “immediately clear and remove” records from Wikileaks and “prevent the domain name from resolving to the Wikileaks.org Web site or any other Web site or server other than a blank page” until he could undertake a closer review.

The judge and the bank quickly became the focus of international controversy as free-speech and civil-rights groups charged the decision was unconstitutional.

Wikileaks allows anonymous posting of documents, including those disclosing U.S. Army operations at Guantánamo Bay, Cuba; human-rights abuses in China; and political corruption in Kenya. But a new look at First Amendment law began when documents from the Swiss bank showed up.

Bank Warned

In the face of widespread media attention and rights-groups action, White last week reversed his decision. Dynadot had already blocked the Wikileaks.org domain name, but the site remained alive on other servers and could even be reached using its numerical address.

The bank dropped the suit after a warning that Wikileaks, Dynadot and the intervening defendants, including Public Citizen and the California First Amendment Project, could seek attorney fees under a California law designed to protect those who speak out against meritless lawsuits, according to Public Citizen attorney Paul Alan Levy.

“Although the bank’s notice of dismissal warns of the possibility that the bank may bring the same lawsuit in some different court, we are confident that judges in such future cases will have learned the basic lesson taught by the proceedings in federal court in San Francisco — that a prior restraint should not be used against free speech no matter how serious the plaintiff’s claim of wrongdoing may sound, especially when those whose First Amendment interests are at stake have not been able to appear in court to explain the flaws in the plaintiff’s case,” Levy said.

Inappropriate Balancing

The traditional rule in First Amendment law that prior restraint is not permissible would have seemed to rule out the original shutdown order. That didn’t happen, said Dennis Loomis, a partner with Baker Hostetler in Los Angeles, because there was an inappropriate balancing.

“If there is a site that’s specifically designed to hide the identity of people who are posting information that may or may not be credible, there seems to be a good argument for drawing the line as the court did in this case,” Loomis said. “If the post is anonymous and not traceable, free speech has to yield to the right of people and companies to not be potentially defamed or lied about with impunity.”