Last week, the U.S. senator sent a letter to Google CEO Eric Schmidt decrying YouTube as a clearinghouse for terrorist propaganda videos and calling upon Google to remove them. “… Islamist terrorist organizations use YouTube to disseminate their propaganda, enlist followers and provide weapons training–activities that are all essential to terrorist activity,” Lieberman, Chairman of the Homeland Security and Governmental Affairs Committee, wrote. “According to testimony received by our committee, the online content produced by al-Qaeda and other Islamist terrorist organizations can play a significant role in the process of radicalization, the end point of which is the planning and execution of a terrorist attack. YouTube also, unwittingly, permits Islamist terrorist groups to maintain an active, pervasive and amplified voice, despite military setbacks or successful operations by the law enforcement and intelligence communities.”

Lieberman would like Google (GOOG) to smoke these YouTube terrorists out of their holes. To that end, he provided Schmidt with a list of offensive videos. Some featured gratuitous violence or hate speech and were removed. But many more featured legal non-violent, non-hate speech. These YouTube refused to remove because they don’t violate its Community Guidelines.

“While we respect and understand [Lieberman's] views, YouTube encourages free speech and defends everyone’s right to express unpopular points of view,” YouTube said in a post to its company blog. “We believe that YouTube is a richer and more relevant platform for users precisely because it hosts a diverse range of views, and rather than stifle debate we allow our users to view all acceptable content and make up their own minds. Of course, users are always free to express their disagreement with a particular video on the site, by leaving comments or their own response video. That debate is healthy.”

Second, the [Temporary Restraining Order] against Wikileaks violates the First Amendment because judicial orders enjoining reporting on or dissemination of documents constitute prior restraints. Under Pentagon Papers, the First Amendment prohibits prior restraints in nearly every circumstance, even where national security may be at risk and the press’s source is alleged to have obtained the documents unlawfully. The privacy and commercial interests Plaintiffs cite are simply not on the same order of magnitude required to justify a prior restraint, and the grab bag of federal, state and foreign laws they cite do not authorize prior restraints.”

–Excerpt from amicus brief in Bank Julius Baer v. Wikileaks

The U.S. District Court judge who issued the injunction ordering Wikileaks.org disabled has, after a bit of thought, come to view it as privacy and civil-rights groups had: overly broad and violative of the whistleblower site’s First Amendment rights.

Responding to a barrage of motions filed by a coalition of media and public-interest organizations Friday, Judge Jeffrey White reversed the permanent injunction he issued two weeks ago shuttering Wikileaks. In his ruling, White–while not admitting that his original order may well have violated prior restraint –acknowledged it was complicated by free-speech issues. “There are serious questions about prior restraint, possible violations of the First Amendment, which the court can make no definitive findings about at this point,” he wrote. “It is clear that in all but the most exceptional circumstances, an injunction restricting speech pending final resolution of the constitutional concerns is impermissible.”

Clear, too, that attempting to restrict free speech on the Internet is a near impossibility these days. “There are serious concerns that the court has, and serious questions raised, about the effectiveness of any order that this court might issue given the current state of affairs,” White continued. “Maybe that’s just the reality of the world that we live in. When this genie gets out of the bottle, that’s it.”

Or as Internet pioneer John Gilmore once put it, “The Net interprets censorship as damage and routes around it.“

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