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June 2003 
Vol. 9 No. 6 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
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The California Supreme Court has ruled that there is no action for trespass for unwanted email that does not damage the recipient computer system or impair its functioning.
On six occasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent emails criticizing Intel's employment practices over Intel's internal email system. He did not breach any security barriers, and offered to remove from his mailing list any recipient who asked. Hamidi's communications neither physically damaged nor functionally disrupted Intel's system. The communications did not deprive Intel of the use of its computers. There was loss of productivity from employee discussions about the emails and from Intel's efforts to block the emails.
Trespass to chattels requires some injury to the chattel or to the plaintiff's rights in it. There was no such evidence here. Intel did not show that its system was slowed or otherwise impaired by the burden of delivering Hamidi's messages. Nor was there any evidence that transmission of the messages imposed any marginal cost on the operation of Intel's system.
The Court did identify some situations where a trespass action might lie. For example, an internet service provider might have a trespass claim against a spammer if the mass mailings used disk space and drained processing power, making those resources unavailable to serve subscribers. There also might be an action for threatened harm against operators of automated services that continually access a web site's resources. If such actions were held legal, then others might do the same and overwhelm the web site.
The Court also pointed out that other tort theories might apply. A company or its employees might be able to plead causes of action for interference with prospective economic relations, interference with contract or intentional infliction of emotional distress. Third party subjects of email might make claims for defamation, invasion of privacy or other speech-based torts.
Intel Corp. v. Hamidi, 2003 WL 21488209 (Cal. Sup. Ct. Jun. 30, 2003).
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The Ninth Circuit has ruled that a vice principal who taped a second-grader's head to a tree violated the Fourth Amendment. In an earlier decision, it had left open the question of which constitutional provision applies to such circumstances.
John Doe's teacher sent him to vice principal David Keala to be disciplined for fighting. After Doe refused to stand against a wall for a time-out, Keala took him outside and taped his head to a tree. Keala removed the tape five minutes later, but only after a fifth-grade girl told him that she did not think he should be doing that.
In P.B. v. Koch, 96 F.3d 1298 (9th Cir. 1996), the court ruled that school officials do not have qualified immunity from section 1983 claims for excessive force in discipline. The court declined to state whether such claims were based on substantive due process or the Fourth Amendment.
Here, the court ruled that such claims should be analyzed under the Fourth Amendment, in light of the Supreme Court's direction to analyze excessive force claims under a more specific constitutional provision if one exists. See Graham v. Connor, 490 U.S. 386 (1989). The Fourth Amendment applied to this case because it involved government conduct motivated by investigatory or administrative purposes.
Since it might be possible for a school official to use excessive force without a seizure or a search covered by the Fourth Amendment, the court did not foreclose the possibility of applying substantive due process concepts in another case.
Doe v. State of Hawaii Department of Education, 2003 WL 21488231 (9th Cir. Jun. 20, 2003).
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The Third District Court of Appeal in Sacramento has ruled that high school officials may bar distributors of anti-abortion, pro-abstinence literature to prevent disruption.
Members of the Sanctity of Human Life Network (SOHLNET) tried to register at Rocklin High School to distribute their literature on the campus. When the group had tried to pass out literature the year before, the police had to be summoned.
The principal refused to allow the members to register, as provided in the state registration statute, which permits denial of registration if there is a reasonable basis for concluding that the outsider's presence would disrupt the school.
The high school campus is neither a traditional public forum nor a place that has been opened to the public for expressive activity. Therefore, school officials may reserve the forum for its intended purposes as long as the regulation on speech is reasonable, and not an effort to suppress expression because of the speaker's view.
The principal's actions in this case were reasonable. SOHLNET's presence on campus would have disrupted the atmosphere, interfered with traffic, and required school officials to interrupt their normal duties to deal with the fallout from the visit.
The result might have been different if the principal had allowed demonstrators with other viewpoints to use the campus, or had otherwise discriminated among types of demonstrators.
Reeves v. Rocklin Unified Sch. Dist., 109 Cal. App. 4th 652 (2003).
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The Ninth Circuit has ruled that the operator of a summer camp that offered Bible classes had a First Amendment right to distribute literature about his camp through the public schools. The school district had created a limited public forum by allowing some groups to distribute literature.
Joseph Hills offered a summer camp that included a class on “Bible Heroes” and a class on “Bible Tales.” The school district permitted nonprofit organizations to distribute literature promoting their events and activities, but prohibited any flyers of a commercial, political or religious nature.
The school district initially approved Hills's literature for distribution, but eventually refused to allow distribution unless he removed any references to the Bible classes. Hills declined to do so, and filed a lawsuit claiming violation of his First Amendment rights.
Restrictions on speech in a limited public forum must be viewpoint neutral and reasonable in light of the purpose served by the forum. Hills's literature for his camp fell within the purpose of the forum to permit distribution of information about nonprofit activities. By barring the literature unless Hills removed the descriptions of his Bible classes the district discriminated on the basis of his religious viewpoint.
It would be permissible to require Hills to remove language that directly exhorted the reader to involve children in religious observance. That would exceed the limited purpose of the forum.
Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044 (9th Cir. 2003).
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The Ninth Circuit has ruled that the owner of the copyright to a home video that revealed the secrets of magic tricks did not have an infringement claim against a television network that broadcast a series of specials with a similar theme.
Robert Rice owned the copyright to a 1986 home video entitled The Mystery Magician, in which a magician in a mask explained how to perform several well-known magic tricks. The video had limited commercial distribution.
In 1997 and 1998, Fox Broadcasting broadcast four specials that also revealed the secrets behind famous magic tricks through the mouth of a masked magician. Rice claimed that Fox violated his copyright in the home video. The Ninth Circuit ruled that Rice did not have sufficient evidence of similarity in protectable elements.
Copyright protects the expression of ideas, not the ideas. The fact that both the video and the broadcasts dealt with the secrets of magic tricks did not prove infringement. Rice had to show similarity of the presentation and stylistic elements.
Rice argued that both productions involved masked magicians who revealed secrets. However, the character in his home video was not sufficiently distinctive to warrant copyright protection. Any shared attributes of appearance and demeanor were generic and common to all magicians.
Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003).
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The Santa Ana division of the Fourth District Court of Appeal has held that an employer may fire an employee for fighting in self-defense where retreat was possible.
Hector Escalante was attacked by a fellow employee at Wilson's Art Studio. Escalante initially retreated, but turned around and went back toward his attacker, which resulted in further fighting. His employer fired him for turning back.
An employer's right to discharge employees is subject to limits imposed by public policy. To pursue a claim for wrongful termination in violation of public policy, an employee must identify a public policy that inures to the benefit of the public at large.
Although the California Constitution and the Penal Code allow individuals to engage in self-defense even if retreat is possible, the law does not encourage such conduct. Society does not have a rooting interest in self-defense.
Escalante v. Wilson's Art Studio, Inc., 109 Cal. App. 4th 692 (2003).
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The Riverside division of the Fourth District Court of Appeal has ruled that the Fair Employment and Housing Act does not impose liability on employer's for sexual harassment by non-employees.
The California Supreme Court is considering the issue in Salazar v. Diversified Paratransit, Inc., 103 Cal. App. 4th 131 (2002), review granted (Jan. 22, 2003) (discussed in the December 2002 issue of Appellate Decisions Noted). The legislature is considering a bill to make employers liable in such circumstances. AB 76 has passed the Assembly, and is pending in the Senate.
Carter v. California Department of Veterans Affairs, 109 Cal. App. 4th 469 (2003).
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Subsequent treatment of decisions reported on in earlier issues:
Bank of America v. City and County of San Francisco (December 2002 issue), cert. denied, 123 S.Ct. 2220 (2003).
Deutsch v. Turner Corp. (February 2003 issue), petition for certiorari filed (Jun .2, 2003).
DFEH v. Verizon California Inc. (May 2003 issue), rehearing denied (May 28, 2003).
Hall v. Superior Court (May 2003 issue), now reported at 108 Cal. App. 4th 706 (2003).
Ingle v. Circuit City Stores, Inc. (May 2003 issue), now reported at 328 F.3d 1165 (9th Cir. 2003).
Intel Corp. v. Hamidi (January 2002 issue), reversed, 2003 WL 21488209 (Cal. Sup. Ct. Jun. 30, 2003).
Lassonde v. Pleasonton Unified Sch. Dist. (March 2003 issue), petition for certiorari filed (May 20, 2003).
Levy v. Skywalker Sound (May 2003 issue), now reported at 108 Cal. App. 4th 753 (2003).
McManus v. CIBC World Markets Corp. (May 2003 issue), now reported at 109 Cal. App. 4th 76 (2003).
Wiener v. Southcoast Childcare Centers, Inc. (April 2003 issue), petition for review filed (May 30, 2003).
Wittkopf v. County of Los Angeles (August 2001 issue), review dismissed and cause remanded (Jun. 11, 2003).
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