Free speech group supports Yahoo! and cybergripe cases

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."

• The Taubman Company brief
• The Yahoo brief