Judicial Legitimacy Overcomes the First Amendment: Kraham v. Lippman

Abstract

Beyond the questions of privacy and free speech raised by the Wikileaks case, which will go unanswered due to BJB s dismissal, the nature of Wikileaks itself is still unre solvedThe bank's complaint referred to Wikileaks as "an entity of unknown form," and Wikileaks was not represented by counsel before the court at any time during the dispute. This case offers several lessons, the most immediate of which is that the Internet significantly complicates the imposition and effects of prior restraints. BJB, and to some extent Judge White, argued that whatever overreach the restraining orders and permanent injunction may have contained were motivated by the difficulty in pro tecting the legitimate property and privacy interests of the bank and its customers. These attempts backfired; rather than controlling the potential injury pending reso lution of the underlying legal issues, the court's efforts brought attention to the dis pute and to the disputed documents. Another lesson, however, is that courts will need to exercise caution and creativity if they are to recognize and protect important interests of specific parties in cyberspace without disregarding the substantial impli cations of their actions for the free flow of information protected by the First Amendment, jsj