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A. The Irreparable Injury Caused by the Prior Restraint on Defendant's Internet Criticisms of Plaintiff Far Outweighs Any Injury to Plaintiff in Light of the District Court's Finding That the Criticism Is Entirely Truthful.

The preliminary injunction against maintenance of the "Taubmansucks" web site should be stayed because it is a prior restraint that is directed at a web site that is devoted solely to the criticism of a private company's litigation tactics - and to a court's rulings in that litigation - and thus represents core speech that is fully protected by the First Amendment. This Court has been unequivocal in condemning prior restraints absent the most compelling circumstances. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996). Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court held that an injunction forbidding a community group from distributing leaflets criticizing a local real estate company was an impermissible prior restraint. By the same token, an injunction directed at a web site whose sole purpose is to criticize the litigation activities of a private company and the resulting decisions is also an impermissible prior restraint. Indeed, the denial of First Amendment rights, even for a moment, constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976).

The district court apparently thought that the prospect that the web site might cause Taubman commercial injury transformed the web site into "commercial speech" that was outside the full protection of the First Amendment. Preliminary Injunction Ruling, at 13 and n.9. That ruling was in error. After all, the same was true of the leaflets disseminated about the realtor in Organization for a Better Austin v. Keefe, but the Supreme Court nevertheless held that the injunction was an impermissible prior restraint: "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants the use of the injunctive power of a court." 402 U.S. at 419. Similarly, in the Bankers Trust case, this Court squarely rejected "private litigants' . . . commercial self-interest" as a basis for a prior restraint, thus overturning a preliminary injunction that had been issued in favor of a company whose private documents had been discussed in a news publication. 78 F.3d at 225.

The district court never acknowledged the prior restraint doctrine or explained how its ruling fit within the narrow class of cases in which a prior restraint can be justified. However, in denying the motion for a stay below, it cited Semco v. Amcast, 52 F.3d 108, 111 (6th Cir. 1995), as stating that "the application of the Lanham Act is strictly limited to commercial speech, as that phrase has been defined in the constitutional jurisprudence of the Supreme Court." Stay Order at 2. In the same vein, the trial judge opined that, because his assumptions about the commercial basis for Mishkoff's speech warranted a finding of a violation of the Lanham Act, Docket No. 40, at 13 and n.9, no First Amendment protections can be invoked. Stay Order at 2.

Semco does not support a ruling that the injunction against the Taubmansucks web site is anything other than an impermissible prior restraint, for several reasons. First, Semco did not involve a preliminary injunction at all. Rather, this Court reversed a summary judgment in favor of Amcast, which made plunger tips and had published an article in a trade magazine that, while describing a new process for manufacturing the tips, had praised its own products (allegedly making false claims in violation of section 43(a) of the Lanham Act) and contained extensive advertising for those products. Moreover, in distinguishing between commercial and non-commercial speech, this Court did not rely on the possible commercial motivations of the defendant, but considered only the contents of the speech at issue, which was "peppered with advertising for Amcast." 52 F.2d at 113. The Court made clear that, if Amcast's article had confined itself to the manufacturing process "without describing Amcast's own products, history, quality standards, safety standards and commitment to customer service," the mere fact that Amcast might have had some commercial motivations for publishing the article would not have made the article commercial speech that was subject to scrutiny under the Lanham Act. Id. In this case, the contents of the Taubmansucks site, which can be viewed on the CD that is filed with this motion, are entirely non-commercial. And, even if the district court's ruminations about possible commercial motives for the creation of the Taubmansucks website had evidentiary support - and they do not - such motives would not support a preliminary injunction against a web site whose contents are entirely noncommercial.

The findings below show that, compared to the severe and irreparable injury caused by the injunction through suppression of Mishkoff's free speech rights, granting the stay would cause no cognizable injury to Taubman's legitimate interests. The only harm that plaintiff identified in seeking a preliminary injunction was a vague claim that the web site contained "defamatory information" about its litigation activities and "confidential information" about its unsuccessful attempt to settle the case by offering Mishkoff $1000 to take the "Shops" site down. However, the district court flatly rejected those contentions, finding that nothing on the web site was either false or confidential. Docket No. 40, at 10.

Nor did the district court find that Internet viewers would likely be confused about whether Taubman was the sponsor of a web site entitled "Taubmansucks." The court simply ruled, adopting Taubman's argument, that because the first preliminary injunction was based on a likelihood of success in finding that the original web site infringed Taubman's "Shops at Willow Bend" trademark, Mishkoff would be required to keep a "safe distance" away from Taubman's trademarks. Order at 10-11. Whatever the merits of the safe distance rule may be in other contexts, it does not provide any basis a finding here that a stay allowing Mishkoff to continue to make factually accurate criticisms of Taubman would cause irreparable injury to plaintiff. Taubman never argued that there was any likelihood of confusion, and although the district court speculated about possible confusion in its opinion denying the motion for a stay (see infra 11-13), it made no findings of likely confusion and so those speculations also cannot support any finding that plaintiff would be harmed by the stay.

In summary, the irreparable injury that perpetuation of the prior restraint against Mishkoff's criticisms of Taubman would cause far outweighs the injury to Taubman from having its litigation conduct criticized on the Internet. The injury to Mishkoff is compounded by the fact that it currently takes more than a year from the filing of the appellee's brief before oral argument is scheduled. Accordingly, the Court should stay the preliminary injunction against the Taubmansucks web site, and should expedite the appeal by issuing a briefing schedule to commence immediately and setting oral argument as soon as practicable.

Next: The Appeal Is Likely to Succeed...

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