Puerto 80 Explains How Rojadirecta Domain Seizures Violated The First Amendment

from the prior-restraint dept

The appeal of a district court's refusal to return the Rojadirecta domain names has moved forward. Our original post discussed a filing to ask the Second Circuit appeals court for an expedited hearing of the case, which the court has agreed to do. That means that this case should move relatively quickly. To kick that off, Puerto 80s opening brief in the appeal is below. It goes through, in great detail, how seizing a domain name without any notification, and then stalling any attempt to get it back, clearly qualifies as prior restraint. The full thing is worth reading, as it lays out the argument clearly and in great detail. But here's the summary of the argument:
The government seized and shut down two Internet domain names—the 21st century equivalent of printing presses. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (noting that through use of the Internet, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”). Seizure of that sort is a prior restraint on speech. Prior restraints are “‘the most serious and least tolerable infringement’ on our freedoms of speech and press.” United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) ). They can be justified only by scrupulous attention to procedure and an extraordinary showing on the merits. Neither is present here.

The government seized and shut down Puerto 80 and its users’ means of communication in an ex parte procedure with no notice to Puerto 80 and no adversary hearing of any kind. It held those domain names for more than six months before any court ever considered whether the seizure violated the First Amendment or caused Puerto 80 substantial hardship such that the domain names should be released pending a determination of the merits of the forfeiture case. To date, no court has reached the merits of the government’s case. When the district court did rule, it dismissed the First Amendment concerns in a paragraph, improperly placing the burden on Puerto 80 to show that it suffered substantial hardship from the government’s prior restraint. And the government did all this without ever having had to prove to any court that Puerto 80 (or anyone else) was guilty of copyright infringement. Indeed, to this day the government takes the position that it will never have to justify its seizure by showing that Puerto 80 violated any law. (MJN, Exhibit D at 1.)

The procedure used by the government flies in the face of First Amendment law. Decades of First Amendment jurisprudence establishes that the government is entitled to seize property used for speech only after notice to the property owner and an adversarial hearing that fully vets the merits of the government’s case and concludes that the defendant acted unlawfully. This seizure was conducted with no notice, no hearing of any kind, and was based only on the government’s assertion that it had probable cause to believe that criminal infringement occurred because some of the content linked to by Puerto 80 may be unauthorized. That procedural failure is itself enough to condemn the government’s action as an unlawful prior restraint. And it is compounded by the government’s substantive failure to show anything more than probable cause to believe that criminal copyright infringement had occurred. The First Amendment requires more than probable cause. It requires a final determination on the merits that Puerto 80’s use of the domain names was unlawful. For both reasons, the government’s prior restraint was unlawful and should be lifted.
From there, it goes into a much more detailed explanation of why the seizures represent a violation of the First Amendment. There were some questions as to whether or not this argument would get heard at all after the district court's original ruling, so it's good to see it come up here. Hopefully the court recognizes the seriousness of the issue. I'm guessing the Justice Department will try to sidestep the First Amendment issues by focusing on the question of "substantial hardship," but one hopes that the court can recognize the simple ridiculousness of the government being able to seize an entire domain with no notice, no adversarial hearing, no path to getting the site back and (most importantly) no proof or evidence that a crime was actually committed.

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  1. identicon
    Anonymous Coward, 20 Sep 2011 @ 10:01am

    Re: Re: Re: Re: Yeah, but any yahoo can also make money off infringement.

    "The seizure of the domain is a first amendment issue. Puerto 80 didn't have to turn it into one."

    The seizure of the domain name implicates the First Amendment. I'm not denying that. But what does that have to do with whether the seizure is a "substantial hardship" under 983(f)? Remember, Puerto 80 brought a petition under 983(f). Bringing up the First Amendment in the 983(f) petition is like bringing up a parking ticket. How is it relevant? I'm not saying that this isn't prior restraint, I'm merely asking what prior restraint has to do with a 983(f) petition. Puerto 80 is trying to make this 983(f) petition about the First Amendment, but I think they're doing so in the wrong way. I think this will backfire. Not to worry though... I suspect they'll get another bite on the First Amendment apple.

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