Metropolitan News-Enterprise


Thursday, March 28, 2002


Page 1


S.C. to Decide if E-Mail Coming in to Employees Can Be Enjoined


From Staff and Wire Service Reports


The California Supreme Court agreed yesterday to decide whether an employer can ban the sending of mass e-mails to its employees at work. 

Five justices voted to review a Third District Court of Appeal ruling that a fired Intel Corp. worker was properly enjoined, on a trespass theory, from continuing to inundate the company with critical e-mails. Justices Marvin Baxter and Ming Chin recused themselves from the case, Intel Corp. v. Hamidi, 94 Cal.App.4th 325.

A divided Court of Appeal appeal—Justice Fred Morrison wrote the opinion, Presiding Justice Arthur Scotland concurred, and Justice Daniel Kolkey dissented—upheld the injunction in December. The majority rejected Kourosh Kenneth Hamidi’s arguments that his e-mailing was protected by the First Amendment and its California counterpart, and that it wasn’t trespass under California law.

The case has attracted widespread interest among free speech advocates, intellectual property scholars and the technology community.

The move comes a month after the justices agreed to hear a different cyberspace case. That case weighs whether it is an illegal restraint on speech to prohibit someone from posting on the Internet an encryption-breaking code enabling the recording of digital versatile discs, or DVDs.

Former Intel engineer Hamidi, who was fired from the Santa Clara-based company after a work-injury dispute in 1999, made headlines when he drove a horse and buggy to the chipmaker’s headquarters and dropped off 40,000 anti-Intel messages.

After his 1995 dismissal from Intel, he barraged the company’s computer server by sending several different e-mails complaining of unfair work practices. The e-mails went to as many as 30,000 of the company’s workers.

Workplace Intrusion

Sacramento Superior Court Judge John Lewis and the appellate panel ruled that Intel had the same right to police its e-mail system as it would its factories and office hallways. The court said the e-mails were a literal intrusion into the workplace.

While courts and legislatures have limited junk e-mail advertisements — known as spam—the Hamidi case concerns the power of the courts to turn off an individual’s vehicle to exercise an opinion.

Hamidi, of Citrus Heights, said the court’s action Wednesday was a “good sign.”

Intel’s lawyer, Michael Jacobs, urged the justices to let the injunction against Hamidi stand.

Free Speech

“His theory ... is that an employer’s internal computer network, once connected to the outside world through the Internet, becomes a free-for-all-zone in which the invocation of free speech trumps private property rights and common sense,” Jacobs said.

Cindy Cohn, legal director of the San Francisco-based Electronic Frontier Foundation, a civil liberties group, applauded the court’s move.

She said that, if Hamidi’s injunction were to stand, the case could set bad precedent. She said that a man could be guilty of trespassing by sending his lover an e-mail after she told him not to communicate with her by e-mail.

The American Civil Liberties Union, the Thomas Jefferson Center for the Protection of Free Expression, three dozen law professors from throughout the country and others urged the court to revisit the case. The AFL-CIO requested that the Court of Appeal opinion be depublished if review were not granted.

In other actions taken at yesterday’s conference, the justices:

Agreed to decide whether a trial judge is subject to disqualification under Code of Civil Procedure Sec. 170.6 when a case is sent back for resentencing only. A divided panel in Peracchi v. Superior Court, 94 Cal.App.4th 209, answered in the affirmative.

The panel ruling was based on Sec. 170.6(b)(2), which grants each side a new peremptory challenge to the trial judge following reversal for “new trial.”

The majority—Justice Dennis Cornell and assigned Tuolumne Superior Court Judge William Polley—reasoned that the policy behind the statute, allowing a party to avoid going back before a judge whom the party believes would be biased after being cited for error, would apply to a sentencing proceeding in which the judge exercises substantial discretion.

Presiding Justice James Ardaiz dissented, saying the legislative intent behind Sec. 170.6(b)(2), which was added to the statue in the mid-1980s, was to limit post-appeal disqualifications to new trials on issues raised by the pleadings.

Baxter—who is Ardaiz’s brother-in-law,—recused himself from the high court’s consideration of the case. Chin was absent when the conference considered the case.

Declined to review a First District Court of Appeal ruling that former Major League Baseball players have no right to control the dissemination of factual data concerning their careers,  their performance statistics, photographs, and verbal descriptions and video depictions of their play.

Major League Baseball has a constitutional right to promote the names, likenesses, and accomplishments of its players without their consent, the panel ruled. It rejected a pair of consolidated lawsuits by players from the game’s past, who claimed they were entitled to a share of the millions of dollars MLB earns by marketing products that contain the players’ names or photographs.

The suits were brought by players who toiled in the 1930s and 1940s, before the era of huge licensing fees and collective bargaining, including Al Gionfriddo, known for his historic catch that robbed Joe DiMaggio of a home run in the 1947 World Series.

The case is Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400.


Copyright 2002, Metropolitan News Company