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ACLU Backs Yahoo, 'Cybergriper' In Free-Speech Cases

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Steven Bonisteel
Tuesday, May 7, 2002; 12:58 AM

The American Civil Liberties Union is speaking out on behalf of giant Web directory Yahoo and a small-business operator in Texas - both involved in high-profile lawsuits the ACLU says threaten U.S. rights to free speech on the Internet.

The ACLU said Monday that it has filed amicus - or, "friend-of-the-court" - briefs in separate federal court appeals, one of which pits Yahoo, of Sunnyvale, Calif., against the rule of a French court. In that case, Yahoo has already won the first round in a bid to keep a French prohibition on Nazi memorabilia from reaching its Web servers in the U.S.

In the other case, a Web-site developer from Carrollton, Tex., on the outskirts of Dallas, wants a court to rule that Internet addresses like TaubmanSucks.com can be fair comment on shopping mall developer Taubman Centers Inc. and not trademark infringement.

"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," Ann Beeson, litigation director of the ACLU's Technology and Liberty Program said in a prepared statement.

Two years ago, the ACLU was criticizing Yahoo for divulging users' personal data when investigators came calling for information on anonymous message-board posters. But, Monday, the civil rights organization said the Internet company is standing up for the First Amendment in its fight with Ligue Internationale Contre le Racisme et l'Antisemitisme (League Against Racism and Anti-Semitism) and the French Union of Jewish Students.

The case, which many commentators have said could end up on the doorstep of the Supreme Court, began with a lawsuit by the two anti-hate groups and a French court's ruling prohibiting Yahoo France from allowing the sale of Nazi memorabilia on its pages.

In a move to confirm its sovereignty over information published largely on U.S.-based Web severs, Yahoo counter-sued. Late last year, a U.S. District Court judge ruled that demands such as those made by the French court wouldn't wash in America, but the two French groups are appealing that decision.

"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 for the ACLU of Northern California. "The appeals court decision will be enormously significant in either bolstering or chilling free expression on the Internet."

In a brief submitted to the 9th Circuit Court of Appeals Monday, the ACLU national office in New York, its Northern California branch and nearly a dozen other rights groups say the order from the French court "is but one example of the sort of judgment that this and other American courts can expect to see with increasing frequency as Internet use expands throughout the world."

"It is a predictable consequence of the global character of the Internet and the conflicts that inevitably will arise concerning speech protected by the U.S. Constitution but forbidden by repressive laws elsewhere."

The brief says the District Court was correct when it "refused to permit the seeds of foreign censorship to be planted on U.S. soil."

"Whether or not all nations share a belief in the evils of Nazism - a point not in dispute here - the critical issue in this case is that all nations do not agree that there is 'an ethical and moral imperative' (as the French court stated) to censor disfavored speech," the brief says.

"The legal principle upon which the French order is based is not confined to Nazism or to other issues in which values presumably are 'shared,'" it says. "Its reasoning would permit enforcement of any nation's limitations on Internet speech, regardless of the extent to which such restrictions undermine human rights."

In the other litigation joined by the ACLU Monday, Web developer Henry Mishkoff and his Texas company, Webfeats, is awaiting a ruling from the 6th Circuit Court of Appeals in Cincinnati over a stable of 'cybergripe' domains targeting Michigan-headquartered Taubman, a developer of malls the size of theme parks.

Mishkoff's case is particularly notable among disputes over "sucks.com" protest domains because the Dallas-area resident may have once been his target's biggest fan. But that was before Mishkoff was introduced to Taubman's lawyers.

Mishkoff claims he was so enthusiastic about the construction of a new Taubman property - The Shops At Willow Bend - in nearby Plano that he registered ShopsAtWillowBend.com to provide information on the development and the stores it would house.

However, after Taubman complained of trademark infringement, a jilted Mishkoff retaliated by registering TaubmanSucks.com, four variations on the WillowBendSucks.com theme and one for Taubman's legal help, GiffordKrassGrohSprinkleSucks.com.

Last fall, a U.S. District Court in Detroit issued a pre-trial injunction forbidding Mishkoff from using ShopsAtWillowBend.com, and then later added the "sucks.com" domains as prohibited addresses. Meanwhile, Mishkoff, backed by rights group Public Citizen, had already turned to the 6th Circuit, making his case the first sucks-domain case to reach an appeals court.

The ACLU argues in its amicus brief that it is unlikely that Mishkoff's "cybergripe" sites could be mistaken as a commercial ventures or confused with something Taubman itself might create.

"The only content on his site is criticism of Taubman and legal documents about the current dispute," the brief says. "Mishkoff has merely used Taubman's (name) to identify the target of his criticism and accurately describe the contents of his Web site."

Said the ACLU's Beeson: "Consumer criticism and commentary has long been recognized as core protected speech. In the context of cyberspace, that right does not diminish, in fact, it expands."

The brief urges the appeals court to protect such protest domains in order to send a message to lower courts, which have so far produced a mixed bag of rulings in similar cases.

In addition, the brief suggests that such a ruling from the court could guide arbitrators who referee a fast-track process for resolving domain/trademark disputes on behalf of the Internet Corporation for Assigned Names and Numbers (ICANN).

The ACLU claims ICANN's Uniform Domain-Name Dispute Resolution Policy frequently results in "inconsistent and arbitrary" rulings that are sometimes "contrary to First Amendment rights."

"Though these decisions should not bind federal courts, a rejection of their reasoning by this court may help to curb future abuses," the brief states.

The ACLU's Yahoo amicus brief can be found online.

The Taubman brief is here.

Reported by Newsbytes.com, http://www.newsbytes.com .

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