How a Speech-Restrictive Injunction Can Be Used Against Organizations Who Aren't Even Parties:

I noted last week that the Ninth Circuit had stayed the injunction against "any comments that could be construed as to disparage [a trademark]" pending appeal. I didn't have time then to note that Mayer Brown Rowe & Maw (the firm with which I'm working as a part-part-part-time Academic Affiliate) had filed an interesting supplemental brief supporting the stay petition.

It turns out that in 2005 Grist Magazine published an article about The Freecycle Network, and put up a brief summary on its accompanying blog. Tim Oey, the defendant in the Freecycle Network case, then posted some comments attached to that blog post. After the injunction was issued, The Freecycle Network's lawyers sent Grist Magazine a letter stating, "In accordance with the Order [i.e., the injunction], we request that you remove Tim Oey's posting located at [address]. In light of the Court's Order, we request that you remove the posting by no latter thaqn Friday, July 14, 2006."

Grist said no, pointing out (among other things) that "this Arizona order does not apply to Grist, which simply exercised its First Amendment rights in discussing, and facilitating discussions about, issues of public concern relating to the environment. If it were applied to Grist, which was not a party to that Arizona proceeding and furthermore was not afforded any prior notice of the motion, we believe it would be in violation of Grist's rights to free speech and to due process under the First and Fifth Amendments." (The quotes are all from attachments to the supplemental brief, which is a public document.)

And then Grist's lawyers learned of the appeal from the initial post on this blog about the case, and were good enough to pass along the correspondence to Mayer. The result was the supplemental brief, which used the TFN-Grist exchange to "underscore the speech-suppressing aspects of the injunction." We don't know to what extent the supplemental brief influenced the decision to grant the stay, but we were certainly glad to have this extra evidence supporting our criticisms of the injunction.