Trespass to chattel is the wrong cause of action for
Intel to pursue against Mr. Hamidi. The
trial court below extended the trespass to chattel doctrine in a wholly
unprecedented manner by classifying Mr. Hamidi’s e-mail messages as a
trespass even though they did not disrupt Intel’s computer system in any
way. The trial court’s logic would permit almost any e-mail
message to constitute a potential trespass, and its decision therefore has
enormous adverse consequences for free speech on the emerging communications
medium of the Internet.
Under California state tort law, Mr. Hamidi has not
committed a trespass on Intel’s computer system. First, his e-mail messages constitute an intangible intrusion
that according to the Supreme Court of California must be dealt with as a
nuisance and not a trespass. Second,
a reasonable reading of the leading California case concerning the trespass to
chattel doctrine, Thrifty-Tel, Inc. v. Bezenek, supports the conclusion
that Mr. Hamidi has not committed a trespass.
Third, the legal foundations of the trespass to chattel doctrine
confirm that physically non-disruptive e-mail messages, like Mr. Hamidi’s,
cannot support a trespass cause of action.
Intel can adequately protect its valid legal interests
without maintaining a trespass action against Mr. Hamidi.
Of course, Intel could follow the clear guidance of the Supreme Court
of California and pursue a
nuisance -- rather then a trespass -- action
against Mr. Hamidi. But more
fundamentally, if Intel believes that Mr. Hamidi’s speech is harmful, Intel
should pursue a legal remedy that is designed to address speech-based harms,
such as a defamation action.
Even if this Court parts company with the overwhelming
weight of legal authority and rules that Mr. Hamidi has committed a trespass,
Mr. Hamidi’s state and federal constitutional right to free speech should
outweigh Intel’s property interest in a judicial balancing test.
Such a balancing test is required because the judicial enforcement of
California trespass law constitutes state action that must conform to
constitutional standards. In the
balancing calculus, Mr. Hamidi’s e-mail messages are speech of public
concern and therefore entitled to strong constitutional protection.
In contrast, Intel’s interest in censoring Mr. Hamidi is not
particularly compelling given that his e-mail messages have not disrupted
Intel’s computer system in any way, nor has Intel produced any specific
evidence of the type of non-physical disruption that might, in theory, justify
This Court should reverse the judgment of the trial
court granting Intel permanent injunctive relief.
By doing so, this Court would ensure that freedom of speech in
cyberspace -- which makes this new medium so democratic and exciting -- does
not turn into an empty promise.
PHYSICALLY NON-DISRUPTIVE E-MAIL OVER THE INTERNET IS NOT APPROPRIATELY
CLASSIFIED AS A TRESPASS.
Trespass to chattel is the wrong cause of action for Intel to pursue
against Mr. Hamidi because of the enormous free speech implications of
classifying physically non-disruptive e-mail as a trespass.
Mr. Hamidi did not physically invade or disrupt Intel’s computer
system when he created or sent his e-mail messages.
While the trespass to chattel doctrine has been extended to the e-mail
context in order to deal with the problem of physically disruptive, bulk
commercial “spamming,” never before has it been used to silence physically
non-disruptive speech like Mr. Hamidi’s.
non-disruptive e-mail as a trespass has immense adverse consequences for free
speech on the Internet. E-mail is
the principal mode of communication on the Internet, and its use is rapidly
expanding. See, e.g.,
E-Marketer Report, Feb. 1, 1999, <http://www.emarketer.com/estats/020199_email.html>
(noting that 81 million Americans use e-mail); Messaging Online’s Mailbox
Report, Nov. 29, 1999, <http://www.messagingonline.com/mt/html/feature.html>
(estimating a 66% growth rate in the number of electronic mailboxes between
Sept. 1998 and Nov. 1999). Because
the vast majority of
Internet host computers are privately-owned, almost all
e-mail messages travel onto private property.
See, e.g., David J. Goldstone, A Funny Thing Happened on the
Way to the Cyber Forum: Public v. Private in Cyberspace Speech, 69 U.
Colo. L. Rev. 1, 17 (1998). Therefore,
if trespass law is applied in the Internet context without any physical
disruption requirement, almost any e-mail message could constitute an
Both courts and commentators
have universally hailed the Internet as potentially the most diverse and
democratic communications medium the world has ever known.
See, e.g., ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa.
1996) (opinion of Dalzell, J.); Eugene Volokh, Cheap Speech and What It
Will Do, 104 Yale L.J. 1805, 1833 - 43 (1995).
Accordingly, the Internet offers traditionally disenfranchised groups
the opportunity for meaningful participation in public debate.
Indeed, the U.S. Supreme Court has praised the Internet as a “vast
democratic forum” that is “open to all comers,” which has created a
“new marketplace of ideas” with “content [that] is as diverse as human
thought.” Reno v. ACLU,
521 U.S. 844, 868, 870, 880, 885 (1997). However, if courts were to sanction a legal regime in which
physically non-disruptive e-mail could constitute a trespass, the free speech
landscape of cyberspace would be drastically altered. In fact, given that e-mail is the principal mode of
communication in cyberspace, it is no exaggeration to say that such a legal
regime would be analogous to a real-space regime in which every time an
individual opened his mouth, he would be committing a potential trespass. Nothing could be more antithetical to a society that values
freedom of expression.
Unfortunately, the trial
court below seemed to have no understanding of the broad ramifications of its
ruling. Not only does the
decision endorse a legal regime in which almost any e-mail message could
constitute a trespass, but also it opens up the possibility of criminal
trespass charges for the “crime” of expressing one’s opinion on matters
of public concern on the Internet. The
trial court’s ruling is unconstitutional, bad public policy, contrary to the
overwhelming weight of legal authority, and it should be reversed.
HAMIDI HAS NOT COMMITTED A TRESPASS ON INTEL’S COMPUTER SYSTEM.
Under California State Tort Law, Mr. Hamidi’s E-mail Messages
Were Intangible Intrusions That Did Not Cause Physical Damage to Intel’s
Property, and Therefore the Intrusions Should Be Dealt With as a Nuisance and
Not a Trespass.
The Supreme Court of California has established a
strict dichotomy between nuisance and trespass.
Simply put, all intangible intrusions that do not cause physical damage
to plaintiff’s property must be dealt with as a nuisance and not a trespass.
See San Diego Gas and Electric Co. v. Superior Court, 13
Cal. 4th 893, 935 - 37 (1996); Wilson v. Interlake Steel Co., 32 Cal.
3d 229, 232 - 34 (1982).
In Wilson, the Supreme Court listed “noise,
odor, or light” as examples of intangible intrusions that cannot support a
trespass action unless they cause physical damage to plaintiff’s property.
Wilson, 32 Cal. 3d at 233.
In San Diego Gas and Electric Co., the Supreme Court added
electromagnetic waves to the list of intangible intrusions governed by Wilson.
In a long and scholarly discussion, the Supreme Court explained the
origin and propagation of electromagnetic energy, which covers a wide spectrum
and includes such things as ultraviolet light, visible light, microwaves, and
television and radio waves. See
San Diego Gas and Electric Co., 13 Cal. 4th at 903 - 10.
The Supreme Court concluded that electromagnetic waves arising from
powerlines “are wholly intangible phenomena within the meaning of Wilson.”
Id. at 936. Therefore, the
plaintiffs could not bring a cause of action for trespass because they could
not demonstrate that electromagnetic waves had caused physical damage to their
property. See id.
at 936 - 37.
Electronic signals, such as Internet e-mail messages,
that travel over phone lines (or any other transmission line) into a private
computer system consist of nothing more than electromagnetic waves.
See, e.g., 18 McGraw-Hill Encyclopedia of Science &
Technology 555 - 62 (8th ed. 1997) (discussing the propagation of electromagnetic
waves along transmission lines); David Halliday & Robert Resnick, Physics
§ 41-4 (3d ed. 1986) (similar); Howard Georgi, The Physics of Waves
187 - 92 (1993)
the importance of properly identifying the type of intrusion at issue in the
case at bar, this Court should take judicial notice of the scientific fact
that Mr. Hamidi’s e-mails that entered Intel’s computer system consisted
of electromagnetic waves. See
Cal. Evid. Code § 459 (West 1999).
Because electromagnetic waves are intangible
intrusions, Intel must demonstrate that its computer system suffered physical
damage from Mr. Hamidi’s e-mail activity in order to maintain a cause of
action for trespass. See San
Diego Gas and Electric Co., 13 Cal. 4th at 936 - 37.
Intel cannot meet this burden, and indeed freely admits that its
computer system has suffered no physical damage. See, e.g., Plaintiff Intel Corporation’s Responses
to Defendant Kourosh Kenneth Hamidi’s Form Interrogatories Set One, p. 7.
A Reasonable Reading of
Thrifty-Tel, Inc. v. Bezenek Supports the Conclusion That Mr. Hamidi
Has Not Committed a Trespass.
The trial court below relied principally on Thrifty-Tel,
Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996), as authority for holding
that Mr. Hamidi had trespassed on Intel’s computer system.
See Intel Corp. v. Hamidi, No. 98AS05067, 1999 WL 450944,
at *1 - *2 (Cal. Super. Apr. 28, 1999) (citing Thrifty-Tel).
Indeed, much of what is at stake in this case hinges on the proper
interpretation of Thrifty-Tel. The
scope of Thrifty-Tel’s
holding, however, can be understood only by
placing the case within the larger context of California trespass law.
In Thrifty-Tel, two computer hackers used a
confidential access code to gain illegal entry into Thrifty-Tel’s
long-distance telephone service, and then conducted random searches for a
six-digit authorization code that would have allowed them to make free
telephone calls. See Thrifty-Tel,
46 Cal. App. 4th at 1563 - 64. In
the process, the hackers overburdened the Thrifty-Tel telephone system,
thereby denying some subscribers access to phone lines. See id. at 1564.
The Thrifty-Tel court held that the hackers had committed a
trespass to chattel under California state tort law, see id. at
1566 - 67, and in a footnote observed that “[i]n our view, the electronic
signals generated by the [defendants’] activities were sufficiently tangible
to support a trespass cause of action,” id. at 1566 n.6.
The first thing to notice about the Thrifty-Tel
decision is that it preceded San Diego Gas and Electric Co., and
therefore the Thrifty-Tel court did not have the benefit of the Supreme
Court’s guidance that electromagnetic waves are properly classified as
intangible intrusions. The Thrifty-Tel
court observed that the defendants’ telephone activity had generated
“electronic signals,” but in fact the more precise description is that the
defendants’ telephone calls had generated electromagnetic waves that
penetrated Thrifty-Tel’s private property.
See supra section II.A. (discussing electromagnetic waves
and transmission lines).
San Diego Gas and Electric Co. modifies Thrifty-Tel by
re-classifying “electronic signals” sent over phone lines as intangible,
rather than tangible, intrusions.
However, there is a more sensible way to read Thrifty-Tel
that avoids any conflict with San Diego Gas and Electric Co.
In Thrifty-Tel, the “electronic signals” generated by the
defendants had overburdened plaintiff’s telephone system, denying some
subscribers access to phone lines. See
Thrifty-Tel, 46 Cal. App. 4th at 1564.
It is this element of physical damage or physical disruption, even if
temporary, that gave the “electronic signals” a sufficiently tangible
quality to support a cause of action for trespass.
Therefore, a reasonable reading of Thrifty-Tel is that
“electronic signals” sent over phone lines, such as e-mail messages, may
support a cause of action for trespass if they cause at least temporary
physical damage or physical disruption to plaintiff’s property.
Because Intel has not alleged that Mr. Hamidi’s e-mails caused any
physical disruption to its computer system, the logic of Thrifty-Tel
should prevent Intel from maintaining a cause of action for trespass.
The element of physical damage or physical disruption
is a necessary check on the reach of the Thrifty-Tel holding for two
independent reasons. First,
reading Thrifty-Tel for the proposition that “electronic signals”
alone, without any element of physical damage or physical disruption, may
support a trespass cause of action would bring
Thrifty-Tel into direct
conflict with San Diego Gas and Electric Co.
Second, and perhaps more fundamentally, such a reading would sanction a
legal regime in which almost any e-mail message could constitute an actionable
trespass. Such a sweeping result
certainly is not dictated by Thrifty-Tel, and it would result in a
severe erosion of First Amendment protection in a communications medium that
offers an unprecedented level of participation for traditionally
The Foundations of the Trespass to Chattel Doctrine Also Support
a Reasonable Reading of
As the Thrifty-Tel court observed, the trespass
to chattel doctrine has rarely been employed as a tort theory in California.
See id. at 1566. However,
the tort does have a long pedigree and its elements are summarized in the
Restatement (Second) of Torts, which the Thrifty-Tel court cited with
approval. See id.
at 1567 n.8. The first case to
extend the trespass to chattel doctrine to the e-mail context, CompuServe
Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997),
underscored the importance of the Restatement by relying on it almost
exclusively for the court’s doctrinal framework.
See id. at 1021 - 25.
According to § 217 of the Restatement, a trespass to
chattel may be committed by intentionally (a) dispossessing another of the
chattel, or (b) using or intermeddling with a chattel in the possession of
another. Because Mr. Hamidi
obviously did not actually “dispossess” Intel of its
computer system, the
proper inquiry is whether Mr. Hamidi “used or intermeddled with” the
system within the meaning of the Restatement.
Even assuming that Mr. Hamidi did, in fact, use or intermeddle with
Intel’s computer system, § 218 of the Restatement limits liability to those
situations in which (a) the defendant dispossesses the possessor of the
chattel, (b) the chattel’s condition, quality, or value is impaired, (c) the
possessor is deprived of the use of the chattel for a substantial time, or (d)
the possessor suffers bodily harm, or harm is caused to some person or thing
in which the possessor has a legally protected interest.
Sections 218(a) and (c) do not apply to the case at
bar, because Mr. Hamidi, again, did not dispossess Intel of its computer
system, nor did he deprive Intel of the use of its system for a substantial
time. Section 218(d) also is
inapplicable because Intel cannot suffer bodily harm, nor has it identified
any harm to a legally protected interest other than its interest in preventing
the trespass itself. Therefore,
Mr. Hamidi may only be liable under § 218 if Intel can demonstrate that the
“condition, quality, or value” of its computer system has been impaired
within the meaning of § 218(b).
The Restatement makes clear that when a defendant is
accused of intermeddling with a chattel (rather than dispossessing it),
§ 218(b) liability will only attach if the chattel itself has suffered
some physical impairment:
[O]ne who intentionally intermeddles with another’s chattel
is subject to liability only if his intermeddling is harmful to the
possessor’s materially valuable interest in the physical condition,
quality, or value of the chattel.
(Second) of Torts § 218 cmt. e. (1977) (emphasis added). There is one exception, however, to this rule:
In the great majority of cases, the actor’s intermeddling
with the chattel impairs the value of it to the possessor . . . only by some
impairment of the physical condition of the chattel. There may, however, be situations in which the value to the
owner of a particular type of chattel may be impaired by dealing with it in a
manner that does not affect its physical condition.
Thus, the use of a toothbrush by someone else may lead a person of
ordinary sensibilities to regard the article as utterly incapable of further
use by him, and the wearing of an intimate article of clothing may reasonably
destroy its value it his eyes. In
such a case, the intermeddling is actionable even though the physical
condition of the chattel is not impaired.
Id. § 218
cmt. h. Obviously, this carefully
limited exception does not apply to the case at bar, because Intel cannot
maintain that its computer system has been so sullied by Mr. Hamidi’s
e-mails that Intel no longer has any desire to use it.
The CompuServe court was
well aware of the physical impairment requirement imposed by § 218(b).
In that case, plaintiff CompuServe, a popular Internet Service Provider
(ISP), brought an action for
trespass to chattel against defendant Cyber
Promotions, which had sent hundreds of thousands of unsolicited e-mail
advertisements to CompuServe subscribers.
After quoting § 218(b), the CompuServe court observed that
defendant’s “enormous volume” of e-mail activity had “place[d] a
tremendous burden on [plaintiff’s] equipment.”
CompuServe, 962 F. Supp. at 1022.
This burden was so great, in fact, that it had deprived CompuServe
customers of limited processing and storage capacity that otherwise would have
served their needs. See id.
Although the CompuServe
court noted that this physical burden did not amount to actual “physical
damage,” id., the element of at least temporary physical
disruption is a necessary ingredient of the court’s holding for two reasons. First, without this element, the court’s analysis cannot be
reconciled with the physical impairment requirement of Restatement § 218(b).
Second, an interpretation that does not contain this element would
transform every e-mail message sent to CompuServe subscribers into a
potentially actionable trespass. Again,
as in the analysis of Thrifty-Tel, see supra section II.B.,
such a sweeping interpretation of CompuServe is bad public policy and
Indeed, every single court that
has followed CompuServe’s lead and extended the trespass to chattel
doctrine to the e-mail context has included the element of at least temporary
physical disruption. See, e.g.,
America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 448 - 449 (E.D.
(defendants transmitted more than 92 million unsolicited e-mail
advertisements over a five-day period, thereby “impairing the functioning of
[plaintiff’s] e-mail system”); America Online, Inc. v. IMS, 24 F.
Supp. 2d 548, 550 (E.D. Va. 1998) (defendants sent over 60 million unsolicited
e-mail advertisements, which “burdened [plaintiff’s] equipment”); Hotmail
Corp. v. Van$ Money Pie Inc., No. C-98 JW PVT ENE, C 98-20064 JW, 1998 WL
388389, at *7 (N.D. Ca. Apr. 16, 1998) (defendants caused tens of thousands of
misdirected e-mail messages to be transmitted to plaintiff, thereby “filling
up [plaintiff’s] storage space and threatening to damage [plaintiff’s]
ability to service its legitimate customers”).
In sum, the traditional underpinnings of the trespass to chattel
doctrine support a reasonable reading of Thrifty-Tel, under which
liability for trespass to chattel will not attach unless the plaintiff can
demonstrate that his property has suffered at least temporary physical damage
Against this legal backdrop,
Intel has not even alleged that Mr. Hamidi’s e-mails physically disrupted
Intel’s computer system. In
fact, Intel has accused Mr. Hamidi of sending his e-mails “in the dead of
night,” when Intel’s computer system presumably receives significantly
less e-mail traffic than during the day.
See Memorandum of Points and Authorities for Intel’s Motion
for Summary Judgment, p. 3. Assuming
the veracity of Intel’s allegations, on six occasions over a nearly two-year
period, many Intel employees simply had one additional e-mail from Mr. Hamidi
in their inboxes when they came to work in the morning.
This hardly constitutes physical disruption to Intel’s computer
system, and consequently Intel should not be permitted to maintain an action
for trespass to chattel against Mr. Hamidi.
The Trial Court Misunderstood the Foundations of the Trespass to
The trial court below
extended the trespass to chattel doctrine in a wholly unprecedented manner.
The trial court made no finding of physical damage or disruption to
Intel’s computer system. Rather, the trial court claimed that Intel had been injured
by “diminished employee productivity, and in devoting company resources to
blocking efforts and to addressing employees about Hamidi’s e-mails.”
Hamidi, 1999 WL 450944, at *2.
The trial court then concluded, citing no authority, that “[t]hese
injuries, which impair the value to Intel of its e-mail system, are sufficient
to support a cause of action for trespass to chattels.”
Id. In other words,
the trial court created a trespass to chattel doctrine that completely ignores
the physical status of the chattel itself.
As explained above, this
interpretation of the trespass to chattel doctrine contradicts both the
Restatement and every judicial decision that has applied the trespass to
chattel doctrine in the e-mail context. See
supra section II.C. Ironically,
the trial court’s own parenthetical explanations of Thrifty-Tel and CompuServe
demonstrate the trial
court’s error. See
Hamidi, 1999 WL 450944, at *2 (explaining that in Thrifty-Tel,
the telephone system was “overburdened so that some subscribers [were]
denied access to phone lines,” and explaining that in CompuServe,
defendants’ e-mailings “drain[ed] disk space and processing power [that]
deprive[d] customers from those resources”).
The trial court’s
definition of “injury” not only ignores legal precedent, but also is
illogical. Surely the fact that
Intel “devot[ed] company resources to blocking efforts” cannot be the
basis for finding a trespass. Otherwise,
the trespass would be based on the circular reasoning that if Intel incurs
costs in trying to stop a particular activity, that activity becomes a
trespass because costs were incurred. Indeed,
this logically flawed approach would lead to the bizarre result that Intel
could “create” a trespass after-the-fact whenever it so desired.
employee productivity” cannot logically be the basis for a trespass.
Presumably, the trial court was referring to the time that employees
spend reading and possibly reacting to Mr. Hamidi’s e-mails.
It is noteworthy that Intel presented no evidence of this “diminished
employee productivity,” other than a purely speculative footnote in its
Motion for Preliminary Injunction. See
Memorandum of Points and Authorities for Motion for Preliminary Injunction, p.
7 n.8. Nonetheless, if
“diminished employee productivity” is the applicable standard, then every
personal e-mail that an employee reads at work could constitute a trespass.
This would be a particularly odd result given that Intel’s
company policy permits “reasonable personal use” of the Internet.
See Declaration of Kenneth True in Support of Intel
Corporation’s Motion for Preliminary Injunction, Exhibit 1.
Finally, the fact that Intel
“devot[ed] company resources . . . to addressing employees about Hamidi’s
e-mails” cannot logically be the basis for finding a trespass.
Again, it is worth noting that Intel presented no evidence of the
number of employees who may have complained to management about Mr. Hamidi’s
e-mails, nor how much “company resources” were expended addressing any
complaints. Mr. Hamidi, however,
asserts that only 450 recipients have responded to any of his e-mails
requesting that they be deleted from future e-mailings, even though each
message offered the recipients this option. See Memorandum of Points and Authorities in Opposition
to Motion for Preliminary Injunction, p. 4.
Regardless of these factual uncertainties, the proper legal test cannot
be whether Intel devoted company resources to addressing its employees,
because this would lead to the unwarranted result that any e-mail that
generated an employee inquiry could constitute a trespass.
INTEL CAN ADEQUATELY PROTECT ITS VALID LEGAL INTERESTS WITHOUT
MAINTAINING A TRESPASS ACTION AGAINST MR. HAMIDI.
Intel can adequately protect its
legal interests without a trespass remedy.
For instance, Intel might pursue a nuisance action against Mr. Hamidi.
In fact, Intel did include a nuisance count in its complaint, but then
quickly dropped this count when it appeared that the trial court would be
receptive to the trespass claim. In
light of the strict dichotomy between nuisance and trespass established by the
Supreme Court of California in Wilson and San Diego Gas and Electric
Co., Intel should be required to pursue a nuisance theory rather than a
Ultimately, though, the case
at bar is a dispute about speech, and about the harm that speech may or may
not cause when it is distributed to a wide audience. Therefore, if Intel believes that it has been harmed by Mr.
Hamidi’s speech, Intel should pursue a legal remedy that is designed to
address speech-based harms, such as a defamation action.
The Internet has spawned a
developing body of defamation litigation, but plaintiffs have often been
stymied by two separate factors. First,
it is often difficult to identify the sender of a defamatory message.
See, e.g. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D.
573, 578 (N.D. Ca. 1999) (observing that “[t]he tortfeasor can act
pseudonymously or anonymously and may give fictitious or incomplete
second, out-of-state defendants often successfully object to the exercise of
personal jurisdiction. See,
e.g., Jewish Defense Org., Inc. v. Superior Court, 72 Cal. App. 4th
1045 (1999). Here, however, Mr.
Hamidi freely admits to sending e-mails to Intel employees, and he obviously
does not object to jurisdiction. Thus,
there is no technical barrier impeding Intel from pursuing a defamation
action, other than its own unwillingness to do so.
EVEN IF MR. HAMIDI HAS COMMITTED A TRESPASS, HIS FREE SPEECH
RIGHTS SHOULD OUTWEIGH INTEL’S PROPERTY RIGHTS IN A JUDICICAL BALANCING
The Judicial Enforcement of State Trespass Law Against Mr.
Hamidi Constitutes State Action that Must Conform to Constitutional Standards.
The trial court
demonstrated a fundamental misunderstanding of the state action doctrine.
After engaging the merits of Mr. Hamidi’s federal and state
constitutional free speech claims, the trial court concluded in the final
paragraph of its opinion that “[t]hus, Hamidi’s argument as to state
action involved in the issuance of injunctive relief is a non-issue.”
Hamidi, 1999 WL 450944, at *3.
In other words, the trial court apparently believes that the state
action question should be determined after engaging the merits of a
free speech controversy; and furthermore, that the merits of the controversy
somehow dictate the answer to the state action question.
The trial court’s
analysis, however, is exactly backwards.
It is axiomatic that the existence or non-existence of state action is
a threshold question that must be determined before engaging the merits
of a constitutional free speech challenge.
See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 668
(1991) (“The initial question we face is whether a private cause of action
for promissory estoppel involves ‘state action’ within the meaning of the
Fourteenth Amendment such that the protections of the First Amendment are
triggered. For if it does not,
then the First Amendment has no bearing on this case.”).
Therefore, if this Court decides to break new legal ground by holding
that Mr. Hamidi has trespassed on Intel’s computer system, then the first
question for the Court is whether the issuance of an injunction against Mr.
Hamidi constitutes state action that must conform to constitutional standards.
The answer to that
question is an emphatic yes. This
conclusion follows directly from the U.S. Supreme Court’s clear rule that
the judicial enforcement of state law in a manner alleged to restrict First
Amendment freedoms constitutes state action.
The Court first laid down this rule in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), in which the only state action was judicial
enforcement of state libel law in the context of a civil action between
private parties, yet the Court quickly disposed of the state action issue by
announcing that “[t]he test
is not the form in which state power has been
applied but, whatever the form, whether such power has in fact been
exercised.” Id. at 265.
The Court has reaffirmed
this rule not only in subsequent libel actions, see, e.g., Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S.767, 777 (1986), but also in other
contexts dealing with neutrally-applied laws that do not bear directly on
speech. For example, the Court
has found state action in the judicial enforcement of state common law tort
liability for malicious interference with plaintiff’s businesses.
See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886,
916 n.51 (1982) (“Although this is a civil lawsuit between private parties,
the application of state rules of law by the Mississippi state courts in a
manner alleged to restrict First Amendment freedoms constitutes ‘state
action’ under the [Constitution].”) Perhaps
the strongest statement of the rule is found in Cohen v. Cowles Media Co.,
501 U.S. 663 (1991), in which the Court held that the enforcement of state
promissory estoppel law constituted state action:
The initial question we face is whether a private cause of
action for promissory estoppel involves “state action” within the meaning
of the [Constitution] such that the protections of the First Amendment are
triggered. For if it does not,
then the First Amendment has no bearing on this case.
The rationale of our decision in New York Times Co. v. Sullivan
and subsequent cases compels the conclusion that there is state action here.
Our cases teach that the application of state rules of law in state
courts in a manner alleged to restrict First Amendment freedoms constitutes
“state action” under the [Constitution]. . . .
These legal obligations would be enforced through the official power of
the Minnesota courts. Under our
cases, that is enough to constitute “state action” for the purposes of the
at 668 (citations omitted).
Furthermore, the Court’s
analysis in Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980),
confirms that this principle applies in the instant case.
In Pruneyard, the Court affirmed the Supreme Court of
California’s holding that high school students soliciting signatures had a
right under the California Constitution to be on the grounds of a
privately-owned shopping center. See
id. at 88. Pruneyard
thus involved a clash between California state trespass law and state
constitutional free speech rights -- just as in the instant case. Yet the U.S. Supreme Court did not even question the
existence of state action: nowhere in the Court’s opinion do the words
“state action” or “state actor” even appear.
Indeed, the enforcement of state trespass law so obviously involves
state action that the Pruneyard Court did not even see the need to
mention it. See, e.g.,
Paul Brest, State Action and Liberal Theory: A Casenote on Flagg
Brothers v. Brooks, 130 U. Pa. L. Rev. 1296, 1321 (1982) (noting that the
state action in Pruneyard “was nothing more than a state property
rule”). Likewise, the
enforcement of California state trespass law against Mr. Hamidi
constitutes state action, and therefore it must conform to state and federal
Mr. Hamidi’s E-mails Are Speech of Public Concern, and
Therefore Entitled to Strong Constitutional Protection.
The next inquiry for this
Court after disposing of the state action question is determining the nature
of Mr. Hamidi’s speech. The
U.S. Supreme Court has established an important dichotomy between private
speech and speech of public concern that largely determines the degree of
constitutional protection. The
Court has explained that reduced constitutional protection attaches to private
speech, which is defined as speech that does not involve a matter of public
concern. See, e.g., Dun
& Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 - 61
(1985). In contrast, speech of
public concern lies “at the heart of First Amendment protection.”
Id. at 758 - 59; see also Claiborne Hardware Co.,
458 U.S. at 913 (recognizing that expression on public issues “has always
rested on the highest rung of the hierarchy of First Amendment values”).
In order to distinguish between private speech and speech of public
concern, courts should examine the “content, form, and context” of the
speech at issue. Dun &
Bradstreet, 472 U.S. at 761 (quoting Connick v. Myers, 461 U.S.
138, 147 - 48 (1983).
The “content, form, and
context” of Mr. Hamidi’s speech demonstrate that it is speech of public
concern, and therefore entitled to strong
First, the public has an interest in the content of Mr. Hamidi’s
speech, because alleged pervasive employment discrimination at a giant
corporation such as Intel is clearly a topic of public concern.
Furthermore, portions of Mr. Hamidi’s most recent e-mail message
address proposed federal legislation, which is obviously a topic of public
concern. See Declaration
of Kenneth True in Support of Intel Corporation’s Motion for Preliminary
Injunction, Exhibit 2. Second,
because it is in the form of mass distributed e-mails, Mr. Hamidi’s speech
targets a large audience and is therefore unlike typical private speech.
See, e.g., Dun & Bradstreet, 472 U.S. at 762; Connick,
461 U.S. at 141. Third, Mr.
Hamidi’s speech is in the context of a general critique of Intel’s
employment practices and not in the narrow context of a current individual
employment dispute. See, e.g.,
Connick, 461 U.S. at 153 - 54. Finally,
although Mr. Hamidi’s e-mails are controversial and at times abrasive, it is
important to remember that controversial viewpoints are the essence of First
Amendment expression. See,
e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347
Under the Narrow Circumstances of This Case, Mr. Hamidi’s Free
Speech Rights Should Outweigh Intel’s Property Rights in Its Computer
As the trial court noted,
Mr. Hamidi has asserted both federal and state constitutional free speech
rights. See Hamidi,
1999 WL 450944,
at *2. It is
well-established that the California Constitution provides greater free speech
protection than the federal First Amendment.
See, e.g., Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d
899, 910 (1979). In fact, one
lesson of Pruneyard is that in California, a speaker generally occupies
a preferred position over a private property owner when such property has been
opened to the public. See id.
at 910 - 11.
Arguably, then, Mr.
Hamidi’s state constitutional claim should prevail because Intel has opened
its employee e-mail inboxes to the public.
By voluntarily connecting its computer system to the Internet, Intel
obviously wants to take advantage of the tremendous communicative power of
cyberspace. Because of this
voluntary decision, Intel is now at least a passive participant in the “new
marketplace of ideas,” Reno, 521 U.S. at 885, and cannot expect to
control every message that crosses the border from the Internet into its
employees’ e-mail inboxes. Not
only is this technologically impossible (as this litigation aptly
demonstrates), but Intel’s own policies permit “reasonable personal use”
of the Internet, which includes receiving unsolicited e-mails.
Nevertheless, the ultimate
question for this Court is how properly to balance the litigants’ competing
interests in this case. See,
e.g., Pruneyard, 23 Cal. 3d at 905 - 911.
On one side of the scale, Mr. Hamidi possesses a strong legal interest
in being permitted to send his messages without court interference.
As noted above, his e-mails
fall within the definition of speech of
public concern, which the federal First Amendment is designed to protect.
See supra section IV.B.
Furthermore, Mr. Hamidi’s messages are tailored for Intel employees;
the Internet enables him to disseminate his messages via e-mail in the most
effective and efficient method possible.
In fact, Mr. Hamidi is simply playing the role of a cyberspace “town
crier” or “pamphleteer” celebrated by the U.S. Supreme Court.
Reno, 521 U.S. at 870. Although
alternative avenues of communication may exist through which Mr. Hamidi could
broadcast his message, such as the FACE-Intel webpage, the Supreme Court has
explained that content-based speech restrictions in cyberspace cannot be
justified by the suggestion that the speaker can disseminate his message
elsewhere on the Internet. See
id. at 880. Here,
Intel’s response to Mr. Hamidi’s messages is clearly a content-based
restriction, both because Intel’s censorship of Mr. Hamidi is not consistent
with any content-neutral company policy and because Intel has made no secret
of its displeasure with the content of Mr. Hamidi’s messages.
See, e.g., Declaration of Kourosh Kenneth Hamidi in Opposition
to Plaintiff’s Motion for Summary Judgment, Exhibits A - I.
On the other side of the
scale, Intel’s legal interest in protecting its private property by
censoring Mr. Hamidi’s speech is not particularly compelling. Mr. Hamidi’s messages did not disrupt the proper
functioning of Intel’s computer system in any way.
Nor has Intel
produced any specific evidence of alleged non-physical
disruption, such as diminished employee productivity.
It is also important to recognize that, taking Intel’s allegations as
true, Mr. Hamidi sent only six messages to Intel employees over a nearly two
year period. Therefore,
approximately once every four months, many employees simply had one additional
e-mail sitting in their inboxes when they arrived at work in the morning.
It is difficult to square this fact with Intel’s alarmist response to
Mr. Hamidi’s behavior. Furthermore, Intel employees had the option of deleting
themselves from Mr. Hamidi’s e-mailings, but apparently only 450 chose to do
so. Finally, requiring an
employee simply to erase an unwanted message -- which takes only a single
mouse click or keystroke -- is an acceptable burden to bear in the interests
of free speech. Cf., e.g.,
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 72 (1983) (striking
down prohibition on unsolicited mailing of contraceptive advertisements, based
on the logic that “the short, though regular, journey from mail box to trash
can . . . is an acceptable burden, at least so far as the Constitution is
In sum, Intel should not be
permitted to silence Mr. Hamidi with the blunt instrument of state trespass
law. As one commentator has put
Ultimately, Intel wants to enjoy all the benefits of Internet
communication without having to shoulder any of its burdens.
Benefits rarely come without costs -- and if Intel believes that the
benefits derived from connecting its computer system to the Internet are
outweighed by the costs of tolerating free expression, then Intel should
employ its own self-help measures to counter unwanted speech rather than ask
the state to countenance censorship. Indeed, it is ironic that a technological giant such as
Intel, which has helped to usher in and has greatly benefited from the
cyberspace age, now expects the state to protect it from a creature of its own
making. The irony is only
heightened by Intel’s adversary, a poorly financed army of one.
As a policy matter, Intel might argue that a decision in favor of
Hamidi would set a bad precedent because it would open the floodgates for
others, including commercial spammers, to inundate private computer systems
with mass e-mailings. This
argument, however, is meritless. The
logic of a decision in favor of Hamidi would not apply to commercial spammers,
but instead would be based on a careful balancing of the competing rights in
Hamidi’s case. Furthermore, by
no means would a ruling against Intel “imply that those who wish to
disseminate ideas have free rein,” Pruneyard, 23 Cal. 3d at 910;
rather, Hamidi’s expressive activity would continue to be bound by the
requirement that it not unduly interfere with the business functions of
Intel’s computer system.
in the Law -- The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1633 - 34
(1999). With the Internet still
in its infancy, the resolution of this case will have a crucial long-term
impact on the free speech landscape of cyberspace.
This Court should make a positive contribution to that future by
holding that California state trespass law cannot be used to silence Mr.
For the foregoing reasons,
Appellant respectfully requests that this Court reverse the judgment of the
trial court granting Appellee permanent injunctive relief.
January 18, 2000
|By: Signed by
| Deborah Pierce, SBN 190936
| Electronic Frontier Foundation
| 1550 Bryant Street, Suite 725
| San Francisco, CA 90134
| (415) 436-9333