While I’m on a constitutional rant, I bring your attention to a developing case of a federal district court judge issuing a temporary restraining order to prevent three MIT students from giving a presentation at Black Hat, the awesomest security (hacker) conference, because it contained information on how to circumvent the payment system of the Boston transportation system.
Let me rephrase. A judge issued an order to stomp on free speech.
“But they are hackers that intended to defraud the MBTA!” you say?
The prevailing legal theory is “prior restraint.” Basically, you can’t very well restrict someone from saying something. It is more encouraged to allow the act of speech to occur and deal with the potentially negative consequences later. You can’t arbitrarily restrict acts of speech you don’t like.
I point out yet another article by Eugene Volokh, called “Temporary Restraining Order Against Crime-Facilitating Speech About Security Vulnerabilities“
On the other hand, even otherwise unprotected speech generally can only be restricted after a finding on the merits that the speech is indeed unprotected. It generally can't be restricted via a temporary restraining order or a preliminary injunction that's just based on a preliminary, quick-and-dirty estimate of whether a crime was violated and whether the speech is therefore constitutionally unprotected.
The students’ presentation is available, and is rather enjoyable to flip through. Nothing groundbreaking, but in my estimation, very cool. And, in any case, it is certainly worth protecting.
The Electronic Frontier Foundation (EFF) has taken up their case and plans to appeal the judge’s ruling. With hope this will minimally reprimand a judge for bad decisions against society and maximally set a positive precedent to follow: don’t screw with our First Amendment.