In Two Internet Free Speech Cases Reaching Appeals Courts, ACLU Sees Disturbing Censorship Trend

FOR IMMEDIATE RELEASE

NEW YORK–Continuing its strong advocacy of online free speech, the American Civil Liberties Union today filed friend-of-the-court briefs in two novel cases on appeal. The first brief opposes a U.S. corporation’s attempt to silence a local consumer critic; the second opposes a foreign government’s judgment against Yahoo for allowing hate speech on its U.S.-based system.

“The ACLU has become increasingly concerned about the growing tendency of large corporations and governments to use their powers to suppress legitimate protected speech and intimidate critics in the online context,” said Ann Beeson, litigation director of the ACLU’s new Technology and Liberty Program.

In the first case, the Sixth Circuit Court of Appeals in Cleveland has agreed to hear the appeal of a man who was ordered to stop posting critiques of a shopping mall developer on websites he posted with the words “sucks.com” after the developer’s name. This is the first so-called “cybergripe” case to reach an 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 U.S.-based Internet portal Yahoo Inc. to block French users’ access to web pages that contain speech related to Nazism.

Ironically, in the “cybergripe” case, The Taubman Company v. Webfeats and Henry Mishkoff, the critic began as a company fan. Henry Mishkoff created a website 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 trademark infringement, both for his original fan site and for his subsequent “gripe” sites such as www.taubmansucks.com and www.theshopsatwillowbendsucks.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 only content on his site is criticism of Taubman and legal documents about the current dispute,” the ACLU brief notes.

“Mishkoff has merely used Taubman’s marks to identify the target of his criticism and accurately describe the contents of his website,” without seeking to profit in any way, the ACLU said.

“Consumer criticism and commentary has long been recognized as core protected speech,” Beeson said. “In the context of cyberspace, that right does not diminish, in fact, it expands.”

The second case, Yahoo v. La Ligue Contre le racisme et L’antisemitisme, arose last year when two French groups obtained a judgment against Yahoo 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 U.S. 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 judgment 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.”

The ACLU national office together with the ACLU of Northern California and a broad coalition of rights groups filed a friend-of-the-court brief in the Yahoo case.

The Taubman Company brief is online at
/Files/Files.cfm?ID=10373&c=184.

The Yahoo brief is online at
/Files/Files.cfm?ID=10374&c=184.