Leaked Documents Spur First-Amendment Debate

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A federal judge in Brooklyn, N.Y., is considering whether bloggers are entitled to the same free-speech protections given to reporters for newspapers and other media. The case involves leaked documents belonging to the pharmaceutical giant, Eli Lilly.

Specifically, the documents concern the drug Zyprexa. It's a schizophrenia drug and the company's best-seller. Lilly had turned over the documents to lawyers representing patients who were suing the company.

As is common in such cases, the documents — thousands of pages of internal Eli Lilly e-mails, research studies and marketing reports — were kept confidential by court order. But last month, they leaked out and were obtained by several organizations, including The New York Times and NPR.

On Dec. 17, 2006, the Times ran the first of several stories based on the leaked documents. According to the Times, they showed that Lilly had engaged in a decade-long effort to play down the risks of Zyprexa — risks such as excessive weight gain and diabetes. Lilly strongly disputes the description of what the documents show.

For a couple of days, you could judge for yourself, because the Zyprexa documents were posted on the Web by individuals to whom they were also leaked.

On Dec. 18, Lilly obtained a temporary court order to get its documents back. The New York Times refused, but the Web links were shut down. On Wednesday, U.S. District Judge Jack Weinstein will be asked to restore the links.

Fred von Lohmann of the Electronic Freedom Foundation in San Francisco will argue that the order to shut down the Web links violated the protections of the First Amendment.

"Courts in the United States, thanks to the First Amendment, are not allowed to issue what are called 'prior restraints,' Von Lohmann said. "After all, the Pentagon Papers were also allegedly improperly obtained. And the courts have said over and over again, 'It doesn't matter if the documents were improperly obtained. Courts do not issue stop-the-presses orders against people who happen to get the documents after they had been released.'"

Von Lohmann's client is anonymous. "John Doe" posted entries on a Wikipedia Web site about the Zyprexa documents. He doesn't have the stature of the reporters involved in the Pentagon Papers case. They worked for The New York Times and The Washington Post.

Neil Richards, a professor of law at Washington University in St. Louis, says this case squarely poses the question of whether "John Doe" deserves the same protections as the established media.

"A number of people have made claims to be the press," Richards said. "The Supreme Court, in interpreting the First Amendment, has defined the press very broadly because it doesn't want to foreclose new types of people who are engaged in press-like activities from claiming First Amendment protection."

Richards thinks the court will decide that "John Doe" is a full-fledged member of the press.

But to release the documents on the Web, Richards says, Judge Weinstein will also have to decide that the public interest in knowing what's in the documents outweighs Lilly's interest in protecting its trade secrets.

For its part, Lilly says releasing the documents could harm patients and physicians, because the documents tell only part of the story about Zyprexa.

A ruling could come at any time.

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