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Glen P. Robbins gives Reasons in Google v Equustek Vol VIII (set for Nov 2016 SCC hearing)
  Sep 06, 2016

Commentary
Continued from Vol VII:
Permitting equivalent force to international relations would surely cause more more confusion than order and a lack of fairness as opposed to the requisite “fairness”, “convenience” or “necessity”.
Analysis of Groberman J et al BC Court of Appeal, on appeal by Google v Equustek.
At the core of the fair administration of justice is the understanding that the innocent should not become the guilty, a notion normally considered in criminal matters. In this instance, we have a party, admittedly, a significant powerhouse, brought into a civil matter through no fault of its own, where it is not a party to an action.
On this, we offer Mareva Companion Naviera S.A. v International Bulkcarriers S.A. From Court of Appeal, Civil Division (1980) 1All ER 213 English decision before: Lord Denning, Mr. Roskill and Ormrod, L.JJ: “Injunction – Interlocutory” - “Danger that the defendant may transfer assess out of jurisdiction – Injunction restraining disposition of defendant's assets within jurisdiction – whether court has (sic) jurisdiction to grant injunction in advance of judgement – Supreme Court of Judicature (Consolidated) Act 1925, s. 45(1).
“The plaintiffs, 'Mareva Companion' (“the shipowners”) “issued a writ on 25 June 1975 claiming against the defendants, International Bulkcarriers.....unpaid hire and damages for respondents of a charter party.”
“On an ex parte application Donaldson J. granted an injunction until 17:00 hours on June 23 restraining the charterers from removing...out of the jurisdiction moneys...to the credit of the charterers account at a London Bank. The shipowners appealed against Donaldson J.'s refusal to extend the injunction beyond 17:00 hours or 23 June.”
“On June 23 1975 Mr. Lord Denning wrote as follows: “This raises a very important point of practice. The shipowners who owned the vessel Moreva. The let it to the defendants (“the charterers”) on a time charter for a trip out to the Far East and back. The vessel was to be put at the disposal of the charterers at Rotterdam (Holland). Hire was payable half monthly in advance and the rate was $US 3,850 a day from the time of delivery. The vessel was duly delivered to the charterers on 12 May 1975. The charterers sub chartered it. The let it on a voyage charter to the President of India. Freight was payable under that voyage charter: 90% was to be paid against the documents, and 10% later.”
“The India High Commission in accordance with the obligation under the voyage charter, paid 90% of the freight.....to a bank in London (held by the charterers)”. The Indian High Commission paid $174,000 British pounds. “Out of that “the charterers” paid the shipowners (plaintiffs) the first two instalments of the half monthly hire.” “The third (instalment) was due on 12 June 1975, but “the charterers” failed to pay it. They could have easily done it, of course, by making a credit transfer in favour of “the shipowners”.”
“The charterers (sic) “said they were not able to fulfill any part of their obligation under the charter, and they had no alternative but to stop trading.”
“Whereupon the shipowners treated the charterers conduct as a repudiation of the charter. They issued a writ on 20 June. They claimed the unpaid hire, which comes to $US 30,800 and damages..”
“They have served the writ on agents here, and they have also applied for service out of the jurisdiction.” But meanwhile they believe they are in grave danger that these moneys in the bank in London will disappear. So they have also applied for an injunction to restrain the disposal of these moneys which are now in the bank.”
“Donaldson J. who had provided the plaintiffs with the original short term injunction (only) “because he believed that another case Lister & Co had been properly considered” (at that injunction hearing).
In Lister and Company v Stubbs; CA 1890 Reference: (1980) 45 Ch D 1, Coram: Cotton LJ, Lindley LJ: “It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other investments into court. Held: The injunction was refused because the money was not that of the Plaintiffs in consequence of the corrupt bargain which he entered into' but (a) the money which he had received under the bargain could not be treated as being money of the Plaintiffs 'before a judgment or decree in the action had been made.' The court will not grant an injunction to restrain a defendant from parting with his assets so they may be preserved in case the plaintiffs claim succeeds.”
The Respondents (Equustek) admit that the defendants were seeking favourable listings from Google, who all agree powers about 70% of all searches on the Internet. There is no apparent evidence on whether or not the respondents produced evidence as to whether or not any of the other 25% of search engine capacity (Yahoo and others) provided favourable listing opportunity for the defendant.
Favourable listings are not generally a function of the search engine proper, in this instance Google. More often this type of thing occurs as a consequence of one company hiring an search optimizer or constructing a more sophisticated website introducing certain 'tags' from content within, used in conjunction with search optimizers to provide a more favourable listing.
Google as innocent party would have no absolute control over these activities. It is not in this business, but creates work because of its capacity as a search powerhouse 'worldwide' for thousands of web designers and as many search optimizers. Thus, practically speaking Google given the standards of decision makers at both level of superior court, Google would need to own or control 75% of websites and an equivalent number of search optimizing outfits.
At paragraph (16) Groberman J confirms that the defendants “were distributors of the plaintiffs product” (originally). “The plaintiff's allege the defendants begin to re-label 'the product' and pass it off as their own.” “The defendants continued to advertise the plaintiff's product for sale, but filled orders with their own competing product.” “The plaintiff's say the defendant continue to sell its product the GW1000 and in doing so violate the plaintiffs trade secrets and trademarks.”
I am not saying that we would pretend to believe that producing an inferior product or a similar (but not the same product) would be a fair or a legal thing to do, we are simply unclear as to the facts that reasonably attach Google to responsibility in any reasonable way or establish a cause of action. Apparently both superior courts and myself are in agreement, Google is “innocent”.
Given the onus (“burden”) on the plaintiff to make its case, if it did at all, in terms of describing the exactitude of the events pertaining to product at either court level (is Groberman J truly able to discern this?), and considering the somewhat 'wishy washy' rendition by the court of the attempts the plaintiff made to discover where the physical plants of the defendants were, I don't think any reasonable person could be certain that the standard has been achieved, and certainly not against a person who is not party.
Groberman J affirms these suspicions when he attests to his culling of the lower court facts that “the defendant's.....filled orders with their own competing product.” If Company “A” (in this case the plaintiff) has product “X” than the offending company using trade secrets (presumably for production of product “X”) would be filling orders with product “X”. Company “B” (in this case the defendant) “filling orders with their own competing product” does not appear in interpretation of this language to be filling orders with product “X”, but perhaps with product “Xy”, or even product “Y”. There is no way to be sure.
From paragraph (17) “In 2011, when the plaintiffs commenced this lawsuit against the defendants, the defendants operations were based in Vancouver. A number of interlocutory applications were made early in the litigation, including orders that the defendants cease referencing the plaintiffs products on their website.”
Once again, the confusion created by paragraph (16) is not improved in paragraph (17). It appears that the plaintiffs were selling the plaintiffs product in their website, as opposed as their “competing product”, which apparently occurs later on in the process after “a number of interlocutory...orders are granted relative to the offending action occurring between the parties in British Columbia.
At paragraph (18) “The defendants have changed their business operations since the lawsuit was commenced. They no longer operate from Vancouver. They offer 'their product' through a number of websites that they apparently control. They fill orders from unknown location apparently outside Canada.” Here we have similar language which speaks to the defendants “product” as opposed to the plaintiff's product. (The apostrophe denotes possession).
We thus have two distinct events involving two sets of jurisdiction. The first occurs in Vancouver, B.C. with orders against a website that defendants apparently control. These are In Personam orders and they are clear enough. What did these orders determine and what relationship did these In Personam orders attach to Google at the time they were granted?
My belief is that the defendant landed in Washington State just across the border from B.C.. If this is the case whey didn't the plaintiff attempt to enforce its orders there? If the plaintiff felt they had a case why didn't they move to make application at the Federal Court of Canada level in Ottawa office? Google has its head office in Canada in Nova Scotia. This would have provided the plaintiff with a cross state order concurrent it would seem with its trademark.
What efforts did the plaintiff make to established its proprietorial rights with United States filing? Where was the plaintiffs primary business targets for sales and revenues? In Canada only?
Did anyone determine produced and controlled the website? Google isn't the website hosting business. Some one else was contracted to produce these many websites or to host websites produced by someone among the defendants.
From this point of argument is occurs to us that Groberman J. has employed the word “apparent” to describe the defendant's websites.
The word apparent is itself not always clear. It can range from meaning evidence to superficial, not the type of investigation that one would ordinarily link these types of controversial orders to. Google's search engines cannot produce searches of websites unless and until one is constructed.
Of the hundreds of links that Google voluntarily dropped do we know who owns each of these, was a sample of, say, 50 produced?
This criticism/observation is further considered in para (18) from Groberman J where he states: “Although we are advised that the plaintiffs have made some efforts to determine where the defendant manufactured and warehoused the product, and to determine when the product is shipped from, they have not been successful. It appears the location has changed from time to time. The chambers judge them as a 'virtual company'. As the product they sell is a physical one which must delivered to customers, it may be more accurate to describe their operations as “clandestine” than as “virtual.”
The word employed by Fenlon J at lower court “virtual” in context (and generally) is defined as (a) almost or nearly as described; (b) not physically existing as such but made of software to appear to do so' “carried out accessed,, or stored by means of a computer, especially over a network”. “Software” is distinguished from network, it is a noun, a thing involving “programs and other information used by a computer.”
Google is in the search engine business, in order for it to be entirely “virtual” it would need to have a significant interest in the software business, at least to the equivalence to a 75% standard the apparent arbitrary standard for establishing Google's responsibility for the plaintiff's claims.
In context of reasonable deduction in light of the realities Google might just as easily be described as “God” and the interlocutory application orders been applied to “God” given both courts decisions to apply the aforesaid responsibility to Google, with Secular representative Fenlon J. braced to challenge the God of the Internet.
Reasoning from the BC Court of Appeal Google v Equustek (Groberman J.A. leading):
@ para (1) “The appeal by Google Inc. (“Google”) from an interlocutory injunction that prohibits it from including specific websites in results delivered by its search engines.”
@ para (2) “Google is not a party to the underlying litigation, nor is it alleged to have acted unlawfully or in contravention of existing court order. The injunction granted against it is ancillary relief designed to ensure that orders already granted against the defendants are effected.”
@ para (3) “Google contends that the injunction ought not to have been granted because the application did not have sufficient connection to the Province to give the Supreme Court of British Columbia competence to deal with the matter. It also argues that the injunction represents an inappropriate burden on an innocent party. Finally, Google contends that the injunction should not have been granted because of its effect on free speech.”
@ para (5) …. “I am the view that the order that was granted was on was within the competence (i.e. jurisdiction) of the Supreme Court of British Columbia. The order did not violate any principles applicable to the granting of injunctions, nor did it violate freedom of speech. The judge had evidence before her which she was entitled to find the test for an injunction to have been made. In the result I would dismiss the appeal.” (by Google).
Under heading “Fresh Evidence” @ para (12) Groberman J. (for BC Court of Appeal Division) writes: “The only preliminary issue to be dealt with is an application by the respondent (Equustek) to adduce fresh evidence. The fresh evidence consists of two affidavits. The first summarizes and exhibits recently disclosed documents that suggest the defendants, early on in this litigation, were making efforts to ensure that their websites were listed in favourable position in Google search engines.”
@ para (13) “The affidavits deal with a subject that is very much tangential to the issues on this appeal, and they do not provide any definitive new evidence that is likely to assist the Court. I am not persuaded that the fresh evidence ought to be admitted, and I would dismiss the application to adduce it.”
The 'fresh' evidence brought by Equustek in my opinion is relevant to the case at hand. The defendant cannot obtain favourable position simply because of Google. Entire businesses exist to optimize placement. It is a very large business and relatively speaking makes Google appear “passive” as it contends it is.
Similarly, Equustek as plaintiff, with a duty to mitigate damage and its apparent sole reliance on Google to solve its problems could have optimized its own websites to occupy the first dozen pages relating to its proprietorial product and to properly tag its proprietorial information, including posting orders of the court in relation to the defendant's actions.
Factual Background (from Groberman J. writing on behalf of the Division of the BC Court of Appeal):
@ para (15) “The plaintiff's design, manufacture and sell industrial network interface hardware. Their products allow different pieces of complex industrial equipment to communicate with one another.”
@ para (16) “At one time, the defendant's were distributors of the plaintiffs product. The plaintiffs allege that the defendants began to re-label the product and pass it off as their own.” ….” The defendants continued to advertise the plaintiffs product for sale, but filled orders with their own competing product. The plaintiffs say that the defendants continue to sell (its product) the GW1000 and in doing so violate the plaintiffs trade secrets and trademarks.”
@ para (17) “In 2011, when the plaintiffs commenced this lawsuit against the defendants, the defendants operations were based in Vancouver. A number of interlocutory applications were made early in the litigation, including orders that the defendants cease referencing the plaintiffs products on their websites, that they publish a notice on their website redirecting the plaintiffs customers to the plaintiffs. The defendant did not comply with the orders. Within a year of the lawsuit having been commenced, the defendants ceased to communicate in the litigation. In June 2012, the statement of defence of the first two defendants was struck, and in March 2013, the statement of defence of the third defendant was also struck.”
@ para (18) “The defendants have changed their business operations since the lawsuit was commenced. They no longer operate from Vancouver. They offer their product through a number of websites that they appear to control. They fill orders from unknown locations apparently outside Canada. Although we are advised that the plaintiffs have made some efforts to determine where the defendant manufacture and warehouse their product, and to determine when the product is shipped from, they have not been successful. It appears that the location have changed from time to time. The chambers judge described them as a “virtual company”. As the product they sell is a physical one which must be delivered to customers, it may be more accurate to describe their operations as “clandestine” than as “virtual”.” (*this is quite hard to believe)
@ para (19) “Google operates the leading search engine worldwide, the chambers judge found that between 70% to 75% of all searches are conducted through Google...” “There is considerable force to the assertion made in the plaintiffs fact um.” “Google is the dominant player in the search engine market, and no business on the internet can succeed unless (it) can easily be found by a search on Google.”
*This is not a factual statement. A company can have success with a relationship by promoting its products on YouTube. After a lengthy hearing and further written submissions, the chambers judge granted an order value that is growing exponentially. A focus on Yahoo and other search engine and YouTube would not exempt a company from Google, but it refutes entirely the statement that 'no business on the internet can succeed unless it can easily be found by a search on Google'.
@ para (24) “In 2012, the plaintiffs sought an injunction against Google to force it to remove a number of websites used by the defendants from its search engines. Google voluntarily removed some 345 URLs from search results on Google.ca but it was not willing to go any further. In early 2013, the plaintiffs indicated that they were not satisfied with the arrangement, and the matter returned to the court.”
@ para (25) “The main problem initially identified by the plaintiff with the voluntary arrangement was that the defendants simply moved......content to new pages within their websites to get around the de-indexing of specific pages. Later, the plaintiffs became aware that the voluntary arrangement applied only to searches conducted on Google.ca...” “It is clear the the ongoing sales of GW1000 devices are to purchase in countries other than in Canada. An arrangement limited to Google.ca, therefore, is of limited value to the plaintiffs”.
This statement collaborates assertions made in our arguments that not only did Google have no control over the defendant's actions.
To make Google responsible for independent websites doing business simply because it and other search engines facilitate the website online is dangerously narrow reasoning.
@ para (27) “Similar orders were made in respect of two other lists of websites, and the contents of Schedule A (from Order of Fenlon J.). According to the plaintiffs, the injunction has been effective in decreasing the number of defendant's websites that show up.”
It is quite clear that Google did not have the power to ensure that the injunction was entirely effected, it only mitigated the circumstance. What were the plaintiff's doing over this same period of time to identify where the defendants were located. The material is not related to written to written material or even new 3-D material which can be produced through a special printer, it required a physical plant and purchase of material.
From the lower court decision of Fenlon J.:
@ para (31) “Google operates the Google search engines that makes internet search results available through dedicated websites from each country around the world. For example, Google provides internet search services to users in Canada through “www.Google.ca” to users in the United States through “www.google.com”, and to users in France through “www.google.fr”. Despite providing country specific search websites, Google acknowledges that internet users are not restricted to using the website dedicated to their particular country. Thus users in Canada can search through “www.google.fr” and vice versa.”
@ para (32) …. “Although there are other internet search engines 70-75% of internet searches are done through Google.”
@ para (34) “Google says that the fact that an internet search is initiated in British Columbia does not equate to Google carrying on business in the province. Google argues that on the plaintiff's reasoning there is not a country on earth whose civil courts could not assert jurisdiction over Google in respect of search results. Rather, suggests Google, “some form of actual not virtual presence is required.” Google relies on Van Breda in which LeBel J wrote at para (87)”:
[87] “Carrying on business may also be considered connecting factor. But considering it to be one may raise more difficult issues. Resolving those issues may require some caution in order to avoid creating what would amount to forms of universal jurisdiction in respect of tort claims arising out of certain categories of business or commercial activity. Active advertising in the jurisdiction or, for example, the fact that a Website can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business requires some of actual, not only virtual presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction.”
“Google did not quote the paragraph in full. The next line adds what is, in my view, an important qualification”: “But the court has not been asked (in Van Breda) to decide whether and, if so, when e-trade in the jurisdiction would amount to a presence in the jurisdiction.” “In contrast to Van Breda, the motto before me involves e-commerce, or at least providing an “e-service”.
@ (35) “Van Breda indicates that a real and substantial connection cannot be derived from the mere fact that a passive website can be assessed in the jurisdiction”
“Fenlon J. cites Thumbnail Creative Group Inc. v, --2009 BCSC 1833 [Thumbnail]. In that case breached copyright by publishing the plaintiff's images. The plaintiff published these images in a book in the United States which could be purchased on the internet. Madam Justice Dickson said at para 19 (19): “use of the internet in the course of conducting business does not mean that the business in question is carried on globally for the purposes of territorial competence analysis.”
Fenlon's mistake is that she is comparing trade-mark law with copyright law. They are not the same animal. Canadian and U.S. Trade-mark laws and copyright laws are not the same. The availability of the plaintiff's “images” on the internet for purposes of sale, does not provoke the necessity for a injunction at law when damages are an available option.
Also, Fenlon J. is attempting to advance case law (Citation: Century 21 Canadian Limited Partnership v Rogers Communication Inc. 2011, BCSC 1196 – Honourable Mr. Justice R. Punnett) which like her pick of class action case law is unrelated to the case before her. The class action has a full compliment of parties engaged while hers does not.
This case between Century 21 and Zoocasa and Rogers also has a fully engaged style of cause of plaintiffs and defendants. Her case has a plaintiff obtaining orders against an “innocent” party in a matter where there is no dispute about ownership, but where there are outstanding issues pertaining to the jurisdiction of the ownership as this relates to Trade-marks.
The Century 21 v Rogers et al case involves contract law and copyright law. Trade-mark law and copyright law are not the same thing. Their cross border relationship in terms of establishing propriety are not the same. If anything, the Century 21 case defines more particularly why the decision at BC Supreme Court in the Google case is wrong headed.
At para (8) of the Century 21 v Rogers case, Punnett J asserts: “This case arises from the desire of Century 21 to allow public access to its Website, yet at the same time limit commercial access by its competitors. These competing goals...give (sic) rise to this dispute....relating (sic) to the plaintiffs Website and its contents”...and at para (9).. “The actions of the defendants that are complained of evolved during the course of this litigation. The plaintiffs allege that Zoocasa was bound by the Terms of Use of Century 21 Website and breached them. It also alleged that the defendant Zoocasa breached copyright held by the plaintiffs. The claims against the defendant Rogers are that Rogers authorized the breach of copyright contrary to...the Copyright Act, R.S.C. 1985, c. C-42 and, in the alternative, that Roger's induced the breach of contract by Zoocasa.”
Both the Century 21 and Zoocasa Websites are produced in Canada. The designers and builders have no relationship to Google or any other specific search engine as we generally understand these search engines. Century 21 has houses on its Website for sale. These houses are not owned by Century 21, who are the agents for sellers (and presumably potential buyers). Zoocasa by Rogers wants to be able to take these listings in short form along with other listings from other websites and make a site that has its own value.
These Websites may be accessed through any number of search engines involved in the Worldwide Web through Internet. The information was obtained from the Century 21 Website by Zoocasa using 'spyders' to extract the Century 21 information.
In the Google v Equustek matter this is not is has happened. The defendants have moved out of the country it appears and have the capacity to open up 'proprietorial' websites selling a manufactured product which the plaintiff says breaches its Trade-mark. The apparent infringement is very likely occurring on a Website or Websites controlled by the defendants, outside of Canada whose purpose is not to sell product in breach of copyright. There are selling physical equipment not images as is the case in Century 21 v Rogers.
The defendants in the Century 21 v Rogers put up a fight but in the end lose the case. Their Website is guilty. The search engines which would have facilitated their business objectives (like Google) are not guilty. In Google v Equustek Google is innocent and a non party to the proceedings.
The circumstances of each case have little to offer the other in term of assistance in arriving at a fair reasoning of judgment. The fact that Google is so isolated in terms of the facts and case precedent ought to have advised the decision maker that she was over reaching by long measure (any measure).
Rogers is a large outfit. Google is a large outfit. Rogers was alleged and found guilty of promoting breaking of the law for benefit of its related company Zoocasa. They were persistently defiant in their defence of their position. Rogers was named party. Rogers had control over Zoocasa's actions in fact or de facto.
Google had no control over the Defendant's actions or its Websites. Google did not promote the actions of the Defendant and was determined to be “innocent”. The injunction obtained by the plaintiff against Google would appear to make Google guilty for the actions taken by the Defendant in dealing with its own Website.
The Defendant's in the Google case had propriety over the contents of their website offering products for sale. The BC Supreme Court in support of the plaintiff's claim decided that this website was making offer to sell physical product through the defendants websites. No product could be determined through the actual website, it could only provide notice to other interested parties that the product was available. It would seem logical given the relative sophistication of the products use that interested purchasers would also be sophisticated in a fairly abstract way.
Houses for sale the subject matter of the Century 21 matter is a mainstream product known to most people. The products sold by by plaintiff Equustek are known to but a few. Some or many of these purchasers of the defendant's products must have known that something was wrong with what was going on, it seems unlikely that the issue would never have come up. Why would they purchase these products if they knew they were doing so in violation of the plaintiff's proprietorial rights?
As mentioned, if as it seems from the court decisions the defendant's in the Google matter were out of country is it possible that they were selling products where the plaintiff's Trade-mark had no legal authority, a simple strategic exercise to exploit a deficiency in Equustek's business operation?
Freedom of Speech – define, versus defamation – libel – hate speech
According to one Canadian lawyer “Canadian defamation judgments are not enforceable in the United Statees.” His firm cites the Ontario Court of Appeal legal opinion: “Courts in the District of Columbia and in other American jurisdictions have uniformly held that libel judgments rendered in foreign courts where does law does not comport with the principle set forth in New York Time Co. v Sullivan and its progeny are repugnant to the public policy of those jurisdictions and must therefore be denied recognition.”
According to Wikipedia: “New York Times Co. v Sullivan 376 U.S. 254 (1964) was a landmark United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be defiant and libel.”
“Actual malice” is a condition required to establish libel and is defined as “knowledge that the information was false.” in that it was published “with reckless disregard of whether it was false or not.”
“Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must (be aware of) (sic) actual doubt as to the statement's truth.”
“Actual malice is different from common law malice which indicates spite or ill-will. It may also differ from “actual malice” as defined by state law.”
“The extreme of actual malice may be shown in may ways. As a general rule, any competent evidence, either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown, provided they are are not too remote, including threats prior or subsequent defamation, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, a hostility between the parties...facts tending to show a reckless disregard for the plaintiff's rights.”
“Freedom of Speech (Expression), A historical comparison of American and Canadian jurisprudence.
Freedom of speech is about the freedom of speaking anything within the form of speech. Speech can exist in both oral and written form. At its core, it is defended on the basis that the person operating within its protection believes that what is said “is somehow defendable”.
In contrast to Freedom of Speech, Freedom of Expression is able to exist without the essentially identified elements of Freedom of Speech. Films, paintings, cartoon and other more interpretative and abstract forms of presentation do not require any form of “defensibility”.
To wit: Freedom of Speech is generally considered to be that language oral or written which is supported by a sense of logic, often determined to be applied by degree, and rationality, a different standard than logic, but no mutually exclusive of it, whereas Freedom of Expressions begs no such determination.
Under Internet Website Justicia :US Law” a question is posed under concept of Freedom of Expression “Is there a difference Between Speech and Press?”
The article quotes U.S. Justice Stewart who argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society.” (Houchins v KQED. 438 U.S. 1,17 (1978) (concurring opinion).
In the First Bank of Boston v Belotti, 435 U.S. 765 (1978) “the issue of free speech in First Amendment protection was not what constitutional rights corporations possess, but whether the speech that is being restricted is expression that the First Amendment protects because of its societal significance.”
“The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others.”
“Chief Justice Burger ultimately determined that the institutional press had no special privilege as the press.”
In Nixon v Warner Communication; 435 U.S. 589 (1978) “it was determined by the Court in context of sensitive government information and the government's particular relationship to the institutional press it was nonetheless decided that in access to public trials, the right to examine those court hearings was as much a right of the public as it was the institutional press.”
In landmark case, New York Times Co. v Sullivan, 376 U.S. 254 (1964) involving the subject matter of good faith defamation; Justice Stewart argues that “the Sullivan privilege is exclusively a free press right.”
In First Bank of Boston v Bellotti.... “Because the speech concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source, while the First Amendment protects individual self expression as a worthy goal, it also and as importantly provides (sic) the public access to discussion, debate, and the dissemination of information and ideas.”

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