A Legal Side Issue on the PCIJ TRO

According to Yuga and picked up by iBlog, the PCIJ Blog reports that its post on Jonathan Tiongco had been removed in compliance with a court order served on them on a holiday. 

The court also banned the PCIJ, for the 20-day duration of the TRO, from “broadcasting, publishing or posting or causing to broadcast, publish, or post articles and statements similar and related to, or connected and in conjunction with,” that blog post.

The TRO was issued presumably in protection of the privacy rights of Tiongco’s wife and children despite the fact that the PCIJ neither mentions or refers to any of them.  Nor are they in a position to assert Jonathan Tiongco’s right to privacy.  I can’t recall a case where you can use a proxy to invoke your personal right — even though Constitutionally protected.  Besides, Tiongco’s own right to privacy is diminished since by his own actions, he has become a public figure. After all, he issued public statements on a matter of intense public interest — the authenticity of the “Hello Garci” tapes.  In any case, neither he nor his wife and children are entitled to the TRO especially when weighed against the PCIJ’s freedom of express.  Let’s wait for the Supreme Court to rule on that one.

My side issue refers to this part of the PCIJ post:

(W)e cannot repeat the  facts  about Tiongco that we had revealed in our blog post, nor can we say what Mrs. Tiongco found so offensive in it. (That post, however, is cached in Google and can be downloaded from the Google website, which is not covered by this court order.)

While the folks at the PCIJ complied with the TRO by taking the offending post down, I believe they violated it when they directed others to view it from an alternate source.   Don’t believe me?  Here’s the Google cache.  It took me less than a minute to get it.  When you search through the PCIJ Blog for the words “Jonathan Tiongco”, the post is the top result.  See the results here. 

In fact, by this post, I’ve already republished it, haven’t I?  I’m not violating the TRO.  It doesn’t apply to me.  But having followed the instructions given out by the PCIJ, are they not indirectly “publishing” it?  This would be an interesting issue to raise before the QC RTC.

Of course, it’s also a Free Speech issue which sharpens the fight before the Supreme Court as well.  PCIJ invokes its free speech right to publish the material and also, instructions on how to access the material after the PCIJ has been restrained.  The latter is similar to a class of speech identified by UCLA Law Professor (and First Amendment Scholar) Eugene Volokh (of the Volokh Conspiracy) as crime facilitating speech.  He has an interesting article on the matter.  Crime facilitating speech is any speech that assists others in violating the law.  He cites many examples such as a website that instructs others on how to build a peer-to-peer system without violating copyright law, or a book on how to become a Mob hitman, or published instructions on how to build a nuclear device.  He notes that case law treats these situations differently and argues for a more consistent approach.

So, did PCIJ violate the TRO by directing its blog readers to an alternate source for the restrained material?  You be the judge.