A few weeks ago, a Federal judge shut down the Wikileaks website. The judge did this because this muckraking website, modeled after Wikipedia, published documents about a Swiss bank implicated in alleged moneylaundering. According to one published account, "The anonymous whistleblower site, devoted to battle against corruption and censorship, published several hundred documents from a Swiss banking whistleblower purportedly showing that Bank Julius Baer and its Cayman Islands subsidiary had been involved in offshore tax evasion and money laundering by extremely wealthy and, in some cases, politically sensitive clients from the US, Europe, China and Peru."

Wikileaks is a sign of the times. Today, everyone is a journalist. If you can get your hands on some incriminating documents, it's easy to put them online for all to see. In the 1970's, the Washington Post brought down a President in aggressively covering the Watergate scandal. In the new millenium, anyone else lucky enough to get the right news tip can achieve the same result.

What happened to Wikileaks? A Swiss bank sued Wikileaks over the unquthorized publication of these secret documents. A judge shut down the website. As the New York Times pointed out in editorializing against the Wikileaks shutdown, that's like closing down an entire newspaper because of one bad article. Shutting down Wikileaks means that all the smoking gun documents that it posts online are unavailable. This includes, among other things, documents revealing the U.S. rules of engagement for Iraq.

What makes the Wikileaks case different is that nothing really disappears online. Web pages are cached, or preserved, and mirror websites will copy the content no matter what happens to the Wikileaks site. But that's not the point. The Wikileaks page today looks like this. A small headline along the top of the web page says that "Wikileaks Has Been Unconstitutionally Censored!" In fact, the judge reversed himself the other day, basically changing his mind:

A federal judge on Friday withdrew his earlier order disabling a Web site that allows the anonymous posting of documents to discourage unethical behavior in governments and corporations.

On Feb. 15, the judge, Jeffrey S. White of Federal District Court in San Francisco, ordered the American address of the site, Wikileaks.org, to be disabled at the request of Bank Julius Baer & Company, a Swiss banking company, and its Cayman Islands subsidiary. They charged that Wikileaks had posted confidential, personally identifiable account information on some of the bank’s customers.

The judge’s action drew criticism — and court filings — from numerous organizations concerned that the order violated the First Amendment protection of free speech. Because Wikileaks operates sites, like Wikileaks.cx, in other countries, the documents were and are still widely available, both in the United States and elsewhere.

In reversing himself at a hearing here on Friday, Judge White acknowledged that the bank’s request posed serious First Amendment questions and might constitute unjustified prior restraint. He also appeared visibly frustrated that technology might have outrun the law and that, as a result, the court might not be able to rein in information once it had been disclosed online.

There is nothing more complicated in constitutional law than First Amendment doctrine. The guy on the street may tell you that free speech is free speech and censorship is illegal. But nothing is clear cut. Each time the First Amendment is implicated in a lawsuit, the court has to balance the interests of the government with the interests of the speaker. So that, in the classic case of incitement to riot, the government has a greater interest in suppressing the speech than the speaker has in yelling fire in a crowded theater. When government employees want to blow the whistle on their employers' unlawful or unethical activities, the court has to balance the interests of the government's need for an efficient workplace against the interests of the employee in blowing the whistle. Balancing tests in First Amendment law make it difficult to predict who will win the case.

But in the Wikileaks case, this was an easy call. There is no real balancing test when someone wants to shut down a newspaper or website. If the website is publishing classified or illegally-obtained documents, the court can order the website to take those documents offline. To shut down the entire website over some documents is like cutting off your head to stop the dandruff. I would like to meet this judge and ask what, if anything, he was thinking. I would also ask him what it feels like to be a national laughingstock. A first-year law student would know that shutting down Wikileaks was unprecedented.

The issue of whether the courts can censor the media was settled a long time ago. The answer is that the courts cannot do this. This is equally true in times of war. In the early 1970's, a brave government employee named Daniel Ellsberg smuggled secret documents relating to the Vietnam War and gave them to the New York Times and Washington Post. These newspapers published the documents, which became known as the Pentagon Papers. They revealed that the government had lied to the American people in prosecuting this war for over a decade and that the war was a lie. Confirmation that the Vietnam war was a sham was certainly jarring to the families of the nearly 60,000 American soldiers who died in that needless conflict.

The Nixon administration went to court to stop the newspapers from publishing the Pentagon Papers. The Supreme Court rejected that authoritarian stunt, ruling that the newspaper could publish these documents and that any other outcome would constitute a prior restraint, legalese for the notion that the government cannot stop speech before it happens.

The Pentagon Papers case stands a high point in the Supreme Court's protection of First Amendment liberties. Every school district should educated its students about that case and explain exactly what it means and the terrible consequences that would have ensued if the Supreme Court ruled the other way on that case. The Wikileaks case should also be taught in school. It should also be an issue in the Presidential campaign. The lesson in the Wikileaks case is that even one judge can crumple up the Constitutional with serious consequences for free speech and the dissemination of information.