We had just noted that the government had replied
to Puerto 80's motion in the Justice Department's attempt to forfeit the two Rojadirecta domains it had seized earlier this year. In it, we wondered if Puerto 80 was also
going to be appealing the earlier ruling from the court refusing
to return the domains, saying that Puerto 80 failed to show that a First Amendment violation represented "substantial hardship." It turns out that Puerto 80 is
in fact appealing that ruling, as the filing embedded below shows.
To understand what's going on, you have to dig a little bit into the laws around seizure and forfeiture. While similar and related, they're two separate things. Seizure is the preliminary effort, in which the government, with some sort of (often rubberstamped) court approval, goes and takes something. There are specific rules around that, and while the laws are not perfectly
clear, it does seem to suggest that the purpose of seizure in most cases is to hold evidence for a future trial, with the thinking being that leaving it in the hands of criminals could mean that the evidence might disappear. Forfeiture is a process that often follows seizure, in which the government makes its case that it should get to permanently keep some property. In many (but not all) cases, the government seizes first, and then forfeits later, in two separate processes.
In the Rojadirecta case, Puerto 80 initially challenged the seizure
, including on First Amendment grounds, arguing that seizing such a domain without an adversarial hearing represented a classic case of prior restraint. In response, about a week later, the government then went forward with the separate
process of filing to be able to keep those domains via the forfeiture process. So there were actually two parallel processes going on -- one about seizure and the other about forfeiture.
The specific filing against the seizure asked for the domains to be returned, which is allowed under seizure laws if the owner of the property can show "substantial hardship" from the government retaining the property. The judge ruled that a First Amendment violation did not count as a substantial hardship, and that it was the wrong time to raise the First Amendment anyway, suggesting it was better off being raised during the forfeiture fight that was about to start. What we've been writing about this week was the forfeiture fight, since the judge "closed" the seizure part with that previous ruling.
However, even as the forfeiture process is ongoing, Puerto 80 is now officially appealing the ruling on the seizure part of the case and arguing, compellingly, that the seizure itself was prior restraint and that a First Amendment violation is, without question, a "substantial hardship," contrary to the court's original claims. Not surprisingly, Puerto 80 relies on the Fort Wayne Books vs. Indiana
case that is pretty damning to the government's rationale:
In Fort Wayne, state and local officials (respondents) filed a civil action
pursuant to Indiana’s RICO laws, alleging that the defendant bookstores had
engaged in a pattern of racketeering activity by repeatedly violating Indiana’s
obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and
the trial court granted, immediate seizure of the bookstores pursuant to a state law
that permitted courts to issue seizure orders “upon a showing of probable cause to
believe that a violation of [the State’s RICO law] involving the property in
question has occurred.” Id. at 51. On appeal, the Supreme Court held that the
pretrial seizure order was unconstitutional, stating that “mere probable cause to
believe a legal violation has transpired is not adequate to remove books or films
from circulation.” Id. at 66. As in Fort Wayne, the government here has seized an
entire business and effectively suppressed all of the expressive content hosted on it,
including political discussions, commentary, and criticism by the site’s users—
without it being determined whether the seizure was “actually warranted” under
the relevant statutes. Id. at 67.
The prior restraint on Puerto 80 users’ and readers’ First Amendment rights
constitutes irreparable harm of the highest order. The Supreme Court has held that
“[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976); see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First Amendment rights are commonly considered irreparable
injuries for the purposes of a preliminary injunction.”). In CBS, Inc. v. Davis, the
Supreme Court stayed the lower court injunction that prohibited CBS from
broadcasting video footage documenting unsanitary practices in the meat industry,
finding that such prior restraint caused “irreparable harm to the news media that is
intolerable under the First Amendment.” 510 U.S. 1315, 1315-16, 1318 (1994)
(emphasis added). The deprivation of Constitutional rights is, therefore, ipso facto
irreparable injury and subject to expedited review.
In the instant case, the government effectively shut down an entire website,
suppressing all of the speech hosted on it, based on an assertion that there was
probable cause to believe that some of the material linked to by the website (though
not found on the website itself) might be infringing. Puerto 80 was not provided
any advance notice, nor was it provided the opportunity to contest the seizure
before (or, for that matter, shortly after) the government shut down the site. Nor
were the site’s users afforded any notice or opportunity to contest the seizure. That
procedural failing itself indicates that the government’s action was an unlawful
prior restraint. “[T]he lack of notice or opportunity to be heard normally renders a
prior restraint invalid.” United States v. Quattrone, 402 F.3d 304, 312 (2d Cir.
2005) (citing Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180
The filing at this point is mainly to convince the court to accept an "expedited appeals" process, rather than a full filing on the reasons why the seizure was prior restraint and why prior restraint is a substantial hardship, but it certainly presents the basics of the argument. What the case may come down to is a question of whether or not "irreparable injury" is the equivalent of "substantial hardship." Not surprisingly, I would argue that an irreparable injury that involves stomping on someone's First Amendment rights is a very substantial hardship. So far one judge has disagreed. We'll see what happens on appeal.