September 10, 2015

DETROIT— Continuing its strong advocacy of online free speech, the American Civil Liberties Union of Michigan along with the ACLU National office filed a friend-of-the-court brief in the U.S. Court of Appeals opposing the Taubman Company’s attempt to silence a critic of the corporation.

The case involves a man who was ordered to shut down a website called  It is the first appellate case in the country to address whether a “cybergripe” site may adopt a domain name that includes the name of a corporation and a disparaging word. 

 "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. 

Ironically, the creator of the website, Henry Mishkoff, started out as a fan of the Taubman Company.  He created a website to support a new mall built by the corporation 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" site, www.taubmansucks.  Mishkoff established the sites to voice his disapproval of the company's abusive litigation tactics. 

The ACLU argues in the brief that the lower court’s order to shut down the gripe cite violated the First Amendment as an unlawful restraint of free speech.  The ACLU also argues that there was no trademark infringement 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. 

"Consumer criticism and commentary has long been recognized as core protected speech," said Kary Moss, Executive Director of the ACLU of Michigan.  "Consumers don’t forfeit their right to free speech simply because they post their criticism of corporations online.”  

The ACLU has defended against attempts to restrict free speech in cyberspace since the Internet’s inception both at the national level and in Michigan.  In 2001, in a case filed by the ACLU of Michigan, a federal just struck down the Michigan Internet censorship law as unconstitutional in the case Cyberspace Communications v. Engler