Documenting the attack is not coordinating future attacks.
What’s the line between first amendment and incitement????
I guess we would have to know what was on Encyclopedia Dramatica.
It is interesting to me how this has suddenly come to a head after Assange said he would leak documents related to a major bank..or did he actually name Bank of America.
Brandenburg v. Ohio, 395 U.S. 444 (1969), the landmark case in this regard, said that the speech had to directly incite the "imminent lawless act" (violence in the statute that was at bar), and it had to have a likelihood that it would actually incite the criminal act, and it had to have some immediacy of inciting the criminal act.
I'm not commenting with respect to the merits of the Government's actions in this particular case - the source is Gawker after all, so who knows what the real story is - I'm just trying to describe the conditions where speech stops being free. Those are some of the conditions in the relevant case law.
If the government can demonstrate that people were using the shuttered site to actually plan specific hacks, then the law is on their side.
Oh, I should add that an enterprising prosecutor might be able to make such a case. In this instance, potential hackers might be discussing "best practices" with respect to what hacking techniques worked and which didn't. While that conversation alone wouldn't necessarily be criminal, it could go to demonstrating planning, which of course is part of a conspiracy charge.
Again, I have no idea if that actually happened in this particular case, I'm just trying to explain the possibilities.