This week has seen two developments in the case of RojaDirecta.com, the Spanish sports domain that the US federal government seized almost a year ago based on allegations that the site was promoting links to illegal streams of sporting events. On Tuesday, Puerto 80, the owner of the domain, filed a brief arguing that the seizure constitutes prior restraint of speech, something that's prohibited under the First Amendment. And on Wednesday, a federal judge dismissed the forfeiture action against the domain.

It's important to note that these developments are not connected. The government's effort to formally forfeit the domain, and the company's effort to get the domain back pending the outcome of the forfeiture proceeding, are separate cases. The government can, and probably will, refile its complaint.

The courts have long held that prior restraint—censorship before content is published—violates the First Amendment except in extremely narrow circumstances such as imminent threats to national security. The government has asserted that the prevalence of infringing material on RojaDirecta.com means the site does not enjoy the protections of the First Amendment. But the company disagrees.

"The very point of the prior restraint doctrine is that the government does not get to assume that speech is unprotected without first affording the speaker notice and an adversarial hearing on that issue," the firm's brief says.

Puerto 80 points out that the same reasoning could be applied to any case of prior restraint. "The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws," the brief said. "And the Times would have had no opportunity to show that its speech was lawful. That is simply not the law."

Puerto 80 will have the opportunity to make its argument to the United States Court of Appeals for the Second Circuit at oral arguments on December 19. The firm will be represented by Stanford law professor Mark Lemley.

In the underlying forfeiture case, the judge's terse order didn't explain his reasons for dismissal, saying only that they had been given at oral arguments. But Lemley told Ars that the forfeiture was dismissed due to "the government's failure to plead willful infringement sufficiently."

Presumably, the government will be back with a fresh complaint once it has crossed all of its t's and dotted all of its i's. In the meantime, the government is keeping the domain, with no indication of if or when Puerto 80 will get it back.