Yesterday we shouted from rooftops to make a point. Today we do so by way of Internet domain names such as taubmansucks.com. And your local circuit of the U.S. Court of Appeals is just fine with that as indicated in a case pitting the real estate and shopping-center giant against a Dallas Web designer.
Texan Henry Mishkoff (whose tale was recounted in the Metro Times article “Cyber Tussle,” in December 2001) originally put up a fan site for the Taubman Company’s then-new Willow Bend shopping center, located in Plano, Texas. Rather than be flattered, Taubman set his lawyers loose on Mishkoff, demanding that the site come down. Rather than comply, Mishkoff struck back with taubmansucks.com and four similarly named “sucks” sites, which are a common form of Web protest.
The company won a preliminary injunction in U.S. District Court in Detroit to shut down all of Mishkoff’s sites. But last week the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, ruled unanimously for Mishkoff. Public Citizen, a consumer advocacy group that came to Mishkoff’s defense, called Judge Richard Suhrheinrich’s decision “a ringing affirmation of free speech rights on the Internet.”
Suhrheinrich opined that there was “no likelihood” that consumers would be confused by the respective goods and services offered at the real mall and Mishkoff’s fan site. (He included links to his girlfriend’s custom T-shirt company and his own Web services company.)
As to taubmansucks.com, the appeals court called it “purely an exhibition of free speech.” Wrote Suhrheinrich: “Although economic damage might be an intended effect of Mishkoff’s expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business.”
And in the kind of talk that gets free speech advocates cheering, the judge called domain names “a type of public expression, no different in scope than a billboard or a pulpit.” Or a rooftop, he said.
The attorney representing the Taubman Company in the case did not return calls from Metro Times on Monday.
For more information, including a link to the appeals court decision, see www.citizen.org.Send comments to [email protected]