In the first case, the Sixth Circuit Court of Appeals in
Cincinatti has agreed to hear the appeal of a man who was ordered
to stop posting criticisms of a shopping mall developer on web
sites he operated with the words "sucks.com" after the developer’s
name. This is the first so-called cybergripe case to reach a US
appeals court.
In the second case, filed in Ninth Circuit Court of Appeals in
San Francisco, the ACLU argues that the First Amendment supports a
November 2001 decision in which a federal judge rejected an attempt
by the French courts to force US-based internet portal Yahoo! to
block French users’ access to web pages that contain speech related
to Nazism.
In the "cybergripe" case, Henry Mishkoff created a web site to
support a new mall called The Shops at Willow Bend, opening near
his home in Plano, Texas. The developer did not appreciate the site
and successfully sued him in Michigan for trade mark infringement,
both for his original fan site and for his subsequent "gripe" sites
such as www.taubmansucks.com. He established the sites to voice his
disapproval of the company’s abusive litigation tactics.
The ACLU argues that the lower court erred because "there is no
conceivable way that Mishkoff’s gripe sites could be perceived as
commercial or sponsored by the Taubman group." The brief states
that: "The only content on his site is criticism of Taubman and
legal documents about the current dispute."
"Mishkoff has merely used Taubman’s marks to identify the target
of his criticism and accurately describe the contents of his web
site," without seeking to profit in any way, the ACLU said.
The Yahoo! case arose when two French groups obtained a judgment
against the US company in France under a French law that makes it
illegal to engage in speech related to Nazism, including the
display and possession of Nazi memorabilia.
Yahoo! then asked a federal judge in California to declare the
French judgment unenforceable in the US. The judge granted the
request last year, saying that "it is preferable to permit the
non-violent expression of offensive viewpoints rather than impose
viewpoint-based governmental regulation upon speech. The government
and people of France have made a different judgement based upon
their own experience."
"This case hinges on one crucial question: do Americans’ First
Amendment freedoms extend into cyberspace or do foreign governments
have the power to censor our online speech?" said Ann Brick, an
attorney with the ACLU of Northern California. "The appeals court
decision will be enormously significant in either bolstering or
chilling free expression on the internet."
