There has been a theme of late suggesting that far too many judges slept through their Constitutional Law class.  At least the part about the First Amendment’s guarantee of free speech.  The latest involves a website called wikileaks.org. 

Don’t bother to click on the link.  It’s dead air now.  Why?  A federal judge ordered the domain registrar to pull the plug on it. According to this editorial in the San Jose Mercury News,

In a suit filed by a Swiss bank complaining that Wikileaks had published confidential bank records, federal District Judge Jeffrey S. White last week signed an order directing the Web site’s Internet domain registrar to disable the wikileaks.org domain – resulting not only in removal of the offending bank documents, but the entire wikileaks.org site, including documents that were the basis for major news stories on the U.S. military’s rules of engagement in Iraq (in the New York Times), treatment of terrorist suspects held at Guantánamo (Wired.com) and official corruption in Kenya (BBC News), among others.

This ruling is called “breathtaking”, and indeed it is.  For obvious reasons, mainstream media has raised its collective voice and cried foul over this trampling of constitutional rights, from its prior restraint to the death of a website because of uploading one set of documents that is challenged.  Even the  New York Times got into the action.  Not surprisingly, they compare it to ending the publication of a newspaper because there was a problem with one article.

The mainstream media interest in this ruling out of San Francisco is a matter of self-interest.  It’s not that they love and admire the blogosphere to greatly that they are standing shoulder to shoulder with their blogging brothers, but that they see this as precedent that can, and eventually will, be used to stifle them.

But there’s a difference.  Newspapers are big business.  They are well-funded (even if not particularly profitable) and equipped to do battle with the government or some shady bank in the event that someone hauls them into court.  They can galvanize support through their reach amongst others in the media, as well as their readership.  They carry weight with politicians and can influence elections.

We, on the other hand, are just a bunch of blogs.  With a few rare exceptions (such as  David Lat and Ted Frank), nobody owns us and nobody finances us.  These are labors of love, not money.  We do not have the ability to finance a defense against all comers, or courts determined to view us as gnats annoying more important players, like banks or governments.  But we are, clearly, sufficiently annoying gnats that important players may want us to go away.

While mainstream media has come out with editorials decrying Judge White’s order shuttering wikileaks.org, I’ve heard nothing about a defense fund having been raised to aid it through its litigation.  To newspapers, words are cheap.  They have tons of them in the storage closet and pulling a few out for some editorials costs them nothing.  Where is the real concern, as shown through hard cash, legal support and amici?

There is a parallel here between the defense of free speech and the defense of criminal defendants.  It is always the smallest and weakest amongst us that ends up being the test case.  Clarence Earl Gideon was a “nobody”.  So was Ernesto Miranda and Danny Escobedo.  Yet each of these names is enshrined in our criminal law because a lawyer somewhere did his job and changed the face of criminal jurisprudence.

Who will stand behind wikileaks.org?  Where are the battery of attorneys that the New York Times keeps on the shelf for just such a challenge?  Now I’m not suggesting that Simple Justice is critical to the continued existence of western civilization by suggesting that the mainstream media needs to do a little more than pat the loser on the back and say they’re sorry for their loss.  But blogs are the runt of the media litter, and roundly misunderstood by the courts.  If bad law is going to come, it will be through us.

On the other hand, blawgs to have their impact.  Take a look at how the Texas Tornado, Mark Bennett, has been at the center of the Chuck Rosenthal (the now-former Houston “love” District Attorney) and broke most of the news that later appears (without proper attribution) in newspapers nationwide.   If anybody thinks that Mark wasn’t instrumental in this scandal, they’re dead wrong.  A blawg can make a difference. 

If you, fellow-blawger, found yourself the named defendant in a federal suit tomorrow, would you be willing to put your practice on hold, commit your life savings and family’s security to the fight, to fight the good fight for your right to exercise freedom of speech?  I probably would, just out of spite.  I bet Bennett would too.  But many would not.  Would the New York Times come to the rescue?  Would anyone?