February 1, 2002

Honorable Ronald M. George, Chief Justice

and the Associate Justices

Supreme Court of California

350 McAllister Street

San Francisco, CA 94102-4783

Re: Intel Corp. v. Hamidi, (2001) 94 Cal.App. 4th 325

California Supreme Court No. S103781

(Third District Court of Appeal No. C033076)

Dear Chief Justice George and Associate Justices:

This letter of amicus curiae in support of a petition for

review is respectfully submitted by the Electronic Frontier


I. The Nature of the Applicant's Interest

The Electronic Frontier Foundation ("EFF") is a non-

profit, civil liberties group working to protect rights in the

digital world. EFF is based in San Francisco with members

all over the United States, and maintains one of the most-

linked-to Web sites (http://www.eff.org) in the world. EFF

encourages and challenges industry and government to

support free expression, privacy, and openness in the

information society. EFF has litigated and filed amicus briefs

in many Internet cases. Thus, EFF's interest in this case.

II. Why This Court Should Grant Review

The facts of the case are simple: After defendant

Kourosh Kenneth Hamidi was fired by plaintiff Intel

Corporation ("Intel"), he sought to communicate with Intel

employees at their Intel e-mail addresses. On six occasions,

he sent e-mail to thousands of Intel employees. Intel

demanded that Hamidi stop, but he refused. Intel sought, and

ultimately received, an injunction prohibiting Hamidi from

sending e-mail to Intel employees at their Intel e-mail

addresses, based on the common-law tort of trespass to


Despite the apparent simplicity of these facts, however --

a company seeking to stop unwanted e-mail from a former

employee -- this case now has important implications for the

future of the Internet as a medium of free speech and of


On the surface, the decision of the Court of Appeal

injures the freedom of speech guaranteed by both the federal

and state constitutions by upholding an injunction against

protected speech.

But that result is not the most egregious aspect of this

case. The free speech issue should never have been reached.

The Court of Appeal majority only reached this constitutional

issue by unnecessarily and unjustifiably distorting the ancient

doctrine of trespass to chattels by removing any requirement

of actual physical damage to the chattel. The majority

ignored crucial differences between property in land and in

chattels that have been emphasized by this Court. As a result,

under the majority's analysis any unwanted electronic signal

to an electronic device -- an e-mail message, even a click on a

hyperlink -- can create tort liability. In so doing, the Court of

Appeal not only committed serious legal errors that require

correction, but resolved this case without considering the

likely effects of its interpretation on speech and commerce on

the Internet.

Given the inconvenience and annoyance of unwanted e-

mail to computer network administrators and computer users,

the desire to reduce it is understandable.[1] But the majority's

analysis not only leads to a wrong outcome in this case but

also creates an unnecessary new tort that threatens the free

flow of information on the Internet. Put simply, the

majority's cure is far worse than the disease.

A. The Court of Appeal erroneously distorted the

doctrine of trespass to chattels.

Had the Court of Appeal simply followed the law, this

case would be unremarkable. Intel would have no cause of

action, because Hamidi's e-mails did not physically damage

Intel's computers or impair their condition, quality, or value.

Nor was Intel dispossessed of its computers in any way.

In order to uphold the injunction against Hamidi's

speech, however, the majority wrongly extended the doctrine

of trespass to chattels. The majority's fundamental errors

were to conflate real and personal property, and the physical

with the electronic, online world. Intel's e-mail servers are

personal, not real, property, and the contacts at issue are

online, electronic contacts. A chattel owner's interest in the

inviolability of a chattel has always been deemed weaker than

a landownerÕs interest in the inviolability of land. Yet the

majority invokes the notion of ÒtrespassÓ to Òprivate propertyÓ

as though Hamidi had physically entered IntelÕs land and

damaged IntelÕs servers.

Indeed, even if IntelÕs servers were considered real

property, no trespass action would lie. As this Court has held,

even recovery for trespass to land must be "predicated upon

the deposit of particulate matter upon the plaintiffs' property

or on actual physical damage thereto. . . . All intangible

intrusions, such as noise, odor, or light alone, are dealt with as

nuisance cases, not trespass." (San Diego Gas & Electric Co.

v. Superior Court (1996) 13 Cal.4th 893, 936, quoting Wilson

v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232-233

(citations omitted).) Thus, the Court of Appeal actually

extended the reach of trespass to chattels beyond that of

trespass to land.

1. Under California law, trespass to chattels

requires significant physical harm to the


The tort of trespass to chattels Òlies where an intentional

interference with the possession of personal property has

proximately caused injury.Ó (Thrifty-Tel, Inc. v. Bezenek

(1996) 46 Cal.App.4th 1559, 1566 (fn. omitted); see

RESTATEMENT (SECOND) OF TORTS (1977) § 217 cmt. e

(liability only if Òintermeddling is harmful to the possessorÕs

materially valuable interest in the physical condition, quality,

or value of the chattelÓ).) The only exceptions were for loss of

possession, which was deemed to constitute actual damage, or

harm to some person or thing in which the possessor has a

legally protected interest.

In Thrifty-Tel, electronic signals generated by computers

that minors used to access plaintiff's telephone system

overburdened plaintiffÕs telephone system, denying some

subscribers access to phone lines. (Id. at 1564.) In this

context, the electronic signals were deemed sufficiently

tangible to maintain action for trespass to chattels.

Thus, the majority opinion distorts trespass to chattels in

a basic but crucial way: it effectively eliminates the

traditional requirement that the chattel (or the ownerÕs

possession thereof) itself be significantly harmed by the

defendantÕs physical contact with the chattel. As Judge

Kolkey noted in dissent, the majority either eliminated any

requirement of actual injury or treated the time spent reading

and blocking unwanted e-mail as Òactual injuryÓ -- neither of

which is consistent with California law. (Hamidi, 94

Cal.App.4th at 344, 347-348 (Kolkey, J., dissenting).)

To be sure, the Court of Appeal did not take the first step

in this direction. It relied on Thrifty-Tel to eliminate the

requirement of actual physical contact with the chattel. But

the reasoning of Thrifty-Tel is dubious to begin with. The

authorities it relied on involved trespass to land, not trespass

to chattels. (Burk (2000) The Trouble with Trespass, 4 J.

SMALL & EMERGING BUS. L. 27, 33 (ÒThe Thrifty-Tel opinion

blithely glosses over this distinction, noting simply that both

legal theories share a common ancestryÓ); id. at n.52 (citing


An ownerÕs interest in the ÒinviolabilityÓ of personal

property is far weaker than that for real property. (PROSSER

AND KEETON ON TORTS (5th ed.1984) § 14, p. 87 (fns.

omitted) (Òthe dignitary interest in the violability of chattels,

unlike that as to land, is not sufficiently important to require

any greater defense than the privilege of using reasonable

force when necessary to protect themÓ); REST.2D TORTS,

§ 218, cmt. e ("The interest of a possessor of a chattel in

its inviolability, unlike the similar interest of a possessor of

land, is not given legal protection by an action for nominal

damages for harmless intermeddlings with the chattelÓ).)

Moreover, electronic trespasses are not like physical

trespasses; they lack Òthe immediacy and opportunity for

physical confrontation that provides a policy basis for the

trespass cause of action.Ó (OÕRourke, Shaping Competition

on the Internet: Who Owns Pricing Information (2000) 53

VAND.L.REV. 1965, 1994.) Accordingly, the social interest

in protecting against virtual trespass that causes no damage is

weaker than that for physical trespass, whether to land or


But while Thrifty-Tel distorted the traditional meaning of

ÒphysicalÓ contact with the chattel to include electronic

signals (46 Cal.App.4th at 1566 n. 6), in itself that extension

was less fateful because Thrifty-Tel still required actual injury

to the chattel, either to its value or operation. (Id. at 1567

(noting that Òmigrating intangibles . . . may result in a

trespass, provided they do not simply impede an ownerÕs use

or enjoyment of property, but cause damageÓ); id. at 1568-

1569 (denying recovery for first trespass where plaintiff failed

to mitigate damages); id. at 1569-1570 (requiring plaintiff to

prove actual damages in order to recover under trespass to

chattels theory).)

Here, there admittedly is no such harm. Rather than

follow Thrifty-Tel, however, the majority relied on two other,

consequential harms: Òloss of productivity caused by the

thousands of employees distracted from their work and by the

time its security department spent trying to halt the

distractions after Hamidi refused to respect Intel's request to

stop invading its internal, proprietary e-mail system.Ó

(Hamidi, 94 Cal.App.4th at 333.) In short, the majority went

beyond Thrifty-Tel.

As Judge Kolkey noted, Òit is circular to premise the

damage element of a tort solely upon the steps taken to

prevent the damage. Injury can only be established by the

completed tort's consequences, not by the cost of the steps

taken to avoid the injury and prevent the tort; otherwise, we

can create injury for every supposed tort.Ó (Id. at 348

(Kolkey, J., dissenting).)

The majority appeared to believe that HamidiÕs e-mails

caused some physical disruption to IntelÕs e-mail system,

saying that Hamidi should not be allowed to Òflood IntelÕs

system to the penultimate extent before causing a computer

crash.Ó (Id. at 335.) But nothing remotely resembling a

Òcomputer crashÓ occurred, and nothing in the record even

suggests that the computer systems were or ever would be

overloaded by HamidiÕs e-mails. Hamidi simply wanted to

communicate with Intel employees. As one commentator

noted, Ò[t]he trouble that the [Intel] employees are addressing

is not that the computer systems are functioning improperly,

but rather that they are functioning properly, receiving

transmitted bits precisely as they were designed and intended

to do.Ó (Burk, supra, 4 J. SMALL & EMERGING BUS. L. at 36.)

Judge Kolkey also noted: ÒNor can a loss of employees'

productivity (by having to read an unwanted e- mail on six

different occasions over a nearly two-year period) qualify as

injury of the type that gives rise to a trespass to chattel. . . .

Reading an e-mail transmitted to equipment designed to

receive it, in and of itself, does not affect the possessory

interest in the equipment.Ó (Hamidi, 94 Cal.App.4th at 348

(Kolkey, J., dissenting).) ÒNo case goes so far as to hold that

reading an unsolicited message transmitted to a computer

screen constitutes an injury that forms the basis for trespass to

chattel.Ó (Ibid.) In every modern trespass to chattels case,

there arguably was a significant effect upon the ownerÕs

possessory interest.

Even in actions for trespass to land, such harm is

insufficient. In Wilson, supra, the plaintiffsÕ use and

enjoyment of their property was substantially disrupted by

noise emanating from defendantÕs plant; the noise lowered the

market value of their homes, but did not cause any physical

damage. This Court made clear that trespass to land requires

Òthe deposit of particulate matter upon the plaintiffsÕ property

or actual physical damage thereto. . . . actionable trespass

may not be predicated upon nondamaging noise, odor, or light

intrusion.Ó (32 Cal.3d. at 232-233 (citations omitted).)

This Court reiterated this principle in San Diego Gas,

supra, where the plaintiffs alleged that electric and magnetic

fields rendered their property Òunsafe and uninhabitable.Ó (13

Cal.4th at 937.) Explaining that this allegation referred only

to Òa risk of personal harm to its occupants, which is

manifestly different from damage to the property itselfÓ (Ibid

(emphasis in original).), this Court rejected the attempt to

characterize loss of market value as physical damage: ÒA

diminution in property value . . . is not a type of physical

damage to the property itself, but an element of the measure

of damages when such damage is otherwise proved.Ó (Ibid

(emphasis in original).)

Clearly, the harms on which the majority here relied are

directly analogous to the harms that this Court has clearly

rejected in trespass to land cases. As a result, the Court of

AppealÕs distortion of trespass to chattels doctrine gives

chattel owners more protection than land owners.

The majority also sought to evade the requirement of

actual injury to the chattel by noting that Intel sought an

injunction, not damages. But as Judge Kolkey cogently

observed, Ò[t]he fact the relief sought is injunctive does not

excuse a showing of injury, whether actual or threatened. . . .

The majority therefore cannot avoid the element of injury by

relying on the fact that injunctive relief is sought here.Ó

(Hamidi, 94 Cal.App.4th at 347 (Kolkey, J., dissenting).)

Moreover, the issuance of injunctive relief traditionally

requires consideration of the public interest, which, as shown

below, militates strongly against the injunction here.

In short, the majority conflated electronic trespass to

chattels with physical trespass to chattels, then with physical

trespass to land -- and then went even further. Now,

whenever electronic signals impinge upon a device without

the ownerÕs consent, trespass to chattels may be invoked

simply by giving notice to the sender of the signals.

2. The Court of AppealsÕ distortion of trespass-

to-chattels doctrine threatens the Internet.

Judge Kolkey said in dissent that Ò[t]o apply this tort to

electronic signals that do not damage or interfere with the

value or operation of the chattel would expand the tort of

trespass to chattel in untold ways and to unanticipated

circumstances.Ó (Id. at 345; id. at 348 (Òif a chattel's receipt

of an electronic communication constitutes a trespass to that

chattel, then not only are unsolicited telephone calls and faxes

trespasses to chattel, but unwelcome radio waves and

television signals also constitute a trespass to chattel every

time the viewer inadvertently sees or hears the unwanted


Judge Kolkey was right; the majorityÕs approach creates

enormous problems for the Internet and other forms of

electronic communication. First, as an architectural matter,

the majorityÕs approach would transform many commonly

accepted Internet activities into potential trespasses. An

example is the activities of search engines like Google, which

automatically ÒcrawlÓ websites, indexing the information

contained there. Under the majorityÕs approach, any website

owner may simply inform a search engine that it may not

ÒbrowseÓ his or her website -- or even post a Òno trespassingÓ

sign on its website -- making any subsequent ÒcontactÓ by the

search engine a trespass without any damage.

Similarly, trespass to chattels poses a threat to linking.

Under the majorityÕs approach, any website could post a Òno

linkingÓ sign. Although the law is unsettled as to whether

websites have any legal right to prohibit unauthorized links,

the majorityÕs extension of trespass to chattels doctrine would

make the unwitting user who clicks on an unauthorized link a

trespasser. (See Caffarelli, Note, Crossing Virtual Lines:

Trespass on the Internet (1999), 5 B.U.J. SCI. & TECH. L. 6,

26-27 (noting that visiting and copying data from authorÕs

website could potentially qualify as trespass).) That the

websites being searched or linked to were publicly accessible

would make no difference under the majorityÕs approach;

after all, anyone can send e-mail to IntelÕs e-mail servers.

Both search engines and links are critical to the Internet.

Because the Internet is so vast, only search engines give users

the ability to find information of interest to them easily and

quickly. Meanwhile, Òthe ability to link from one computer to

another, from one document to another . . . regardless of its

status or physical location is what makes the Web unique.Ó

(ACLU v. Reno (E.D. Pa. 1999) 31 F.Supp.2d 473, 483, affÕd

(3d Cir. 2000) 217 F.3d 162, cert. granted sub nom. ACLU v.

Ashcroft (2001) 121 S.Ct. 1997, argued, Nov. 28, 2001.)

Requiring permission to link, the predictable outcome of

creating a cause of action for unauthorized linking, would

fundamentally alter the character of the Internet.

Moreover, such changes in the InternetÕs architecture are

likely to have significant consequences for competition. In

two federal cases, trespass to chattels has been used to prevent

firms from aggregating price information. (Register.com, Inc.

v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 250; eBay,

Inc. v. Bidder's Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d

1058, 1066, 1071.) Company control over the dissemination

of price information for products sold on the open market

harms competition.

Unsurprisingly, several law review articles have

criticized the application of this distorted trespass to chattels

doctrine to the Internet. (OÕRourke, Property Rights and

Competition on the Internet: In Search of An Appropriate

Analogy (2001) 16 BERKELEY TECH. L.J. 561 (criticizing

distortion of trespass to chattels in Register.com and eBay);

Ballantine, Note: Computer Network Trespasses: Solving New

Problems with Old Solutions (2000) 57 WASH & LEE L. REV.

209, 248 (Òfailure to allege or to support a showing of actual

harm should have precluded Intel from prevailing on a

trespass to chattels theoryÓ); Burk, supra, 4 J. SMALL &

EMERGING BUS. L. at 39-54; Developments in the Law -- The

Law of Cyberspace (1999) 112 HARV. L. REV. 1574, 1622-34

(ÒDevelopmentsÓ); cf. Warner, Border Disputes: Trespass to

Chattels on the Internet (2002) 47 VILL. L. REV. 117 (arguing

for modified form of trespass to chattels but not discussing


B. The Court of Appeals erroneously decided that the

injunction did not infringe HamidiÕs right to free


These problems are only exacerbated given that many of

the activities affected by trespass to chattels in cyberspace are

speech activities. Developments, supra, 112 HARV. L. REV. at

1628 (Òplaintiffs are aggressively using the theory of

electronic trespass to block unwanted speechÓ). Search

engines and links are often used for academic, research,

cultural and political purposes.Ê Hamidi was exercising his

right to free speech; his sending e-mail to Intel employees at

their Intel e-mail addresses was protected Òpeaceful

pamphleteering.Ó (See Organization for a Better Austin v.

Keefe (1971) 402 U.S. 415, 419 (Òpeaceful pamphleteering is

a form of communication protected by the First Amendment .

. . so long as the means are peaceful, the communication need

not meet standards of acceptabilityÓ).)

Thus, after distorting a sound common-law doctrine

limited to the protection of possessory interests, the majority

was forced to consider the consequences of its reasoning:

upholding a judicial order prohibiting HamidiÕs speech. It is

no accident that the majority devotes nearly half of its opinion

to an attempt to explain why a judicial prohibition on sending

e-mail does not violate HamidiÕs right to free speech under

both the federal and state constitutions.

1. The Court of Appeal wrongly concluded that

the injunction does not implicate the First


The majority found that Òthis lawsuit does not implicate

federal constitutional rights, for lack of state action.Ó

(Hamidi, 94 Cal.App.4th at 337.) This decision was

erroneous as a matter of law, because the Court of Appeal

misunderstood the underlying law of First Amendment limits

on state authority.

Judicial action aimed at restricting speech generally

triggers constitutional scrutiny, even when the government is

not a party. Defamation cases are the most obvious example.

As the U.S. Supreme Court said,

Although this is a civil lawsuit between private parties, the

Alabama court have applied a state rule of law which

petitioners claim to impose invalid restrictions on their

constitutional freedoms of speech and press. It matters not

that that law has been applied in a civil action and that it is

common law only, though supplemented by statute. . . . The

test is not the form in which state power has been applied

but, whatever the form, whether such power has in fact been


(New York Times v. Sullivan (1964) 376 U.S. 254, 265

(citations omitted).)

The principle is not confined to defamation. (See, e.g.,

Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 50, 56

(liability for intentional infliction of emotional distress must

take into account First Amendment standards); NAACP v.

Claiborne Hardware Co. (1982) 458 U.S. 886; Keefe, supra;

Blatty v. New York Times Co. (1986) 42 Cal.3d 1033.)

To distinguish this well-settled line of cases, the Court of

Appeals seized upon doubt about the state action doctrine as

expressed in Shelley v. Kraemer (1947) 334 U.S. 1. But

Shelley was not a First Amendment case. The rule of

Sullivan and its progeny is not about ÒclassicÓ state action and

is not related to the Ògovernmental functionÓ reasoning of

Marsh v. Alabama (1946) 326 U.S. 501, 502 (addressing

criminal liability of individual who Òundertakes to distribute

religious literature on the premises of a company-owned


Rather, it is about First Amendment limitations on state

or common law. (E.g., Hustler, supra, 485 U.S. at 50

(referring to ÒFirst Amendment limitations upon a StateÕs

authority to protect its citizens from the intentional infliction

of emotional distressÓ).) The central concern of these cases is

to create Òbreathing spaceÓ for individual speech. (Id. at 52.)

Put simply, states may not ignore the effects of their laws on

First Amendment liberties, even when these laws are invoked

by private parties to protect private rights.

Much of the majorityÕs reasoning talismanically invokes

the notion of Òprivate property.Ó (Hamidi, 94 Cal.App.4th at

339 (distinguishing Claiborne Hardware, Keefe, and Blatty as

involving Òprivate tort actions,Ó not Òprivate propertyÓ).) But

there is nothing magical about Òprivate propertyÓ in the

speech context.[2] That something may be labeled private

property does not eliminate First Amendment considerations.

The U.S. Supreme CourtÕs accommodation of private property

and free speech carefully balanced the property rights of a

shopping center owner against the rights of leafleters -- with

no mention of state action at all. (Pruneyard Shopping Center

v. Robins (1980) 447 U.S. 74, 88.) Copyright law, which

creates a species of private property in information, is

bounded by the First Amendment in at least two ways: the

idea-expression dichotomy, and the fair use doctrine. The fair

use doctrine allows a form of ÒtrespassÓ onto anotherÕs private

informational property. Similarly, the state right of publicity

is bounded by the First Amendment. (Comedy III

Productions, Inc. v. Saderup (2001) 25 Cal.4th 387.)

Finally, the Court of Appeal reasoned that trespass cases

are unlike defamation cases because the latter cases Òpit

common law rights protecting reputation against the

constitutional right of a newspaper to publish,Ó while in the

former cases Òthe speakerÕs rights are pitted against a property

ownerÕs rights -- of at least equal constitutional force.Ó

(Hamidi, 94 Cal.App.4th at 337.)

This distinction makes no difference here. That a

property owner has constitutional rights is not in doubt. But

the quality of the rights at stake implicates only the question

of how such rights should be balanced, not the question of

whether judicial enforcement of those rights implicates the

First Amendment at all. The U.S. Supreme Court confirmed

this point in holding that a landowner has no Fifth

Amendment takings claim against a state-created right to

speak on private property. (Pruneyard, 447 U.S. at 82-88; cf.

Nebraska Press AssÕn v. Stuart (1976) 427 U.S. 539 (judicial

gag order intended to protect criminal defendantÕs Sixth

Amendment right to a fair trial found to be invalid prior


2. The Court of Appeals wrongly concluded that

state action was lacking under the California


The majority also erred in finding that the injunction did

not implicate the state constitutional right of free speech.[3]

The majority used the rule: Òactions to halt expressive

activity on oneÕs private property do not contravene the

California Constitution unless the property is freely open to

the public.Ó (Hamidi, 94 Cal.App.4th at 341, citing Golden

Gateway Center v. Golden Gateway Tenants Association

(2001) 26 Cal.4th 1013, 1033; id. at 1036.) It then assessed

IntelÕs e-mail servers in terms of the public forum doctrine.

Here again the majority elides the distinctions between

ÒvirtualÓ and physical property and between chattels and land.

Tellingly, the majority says that ÒIntel is as much entitled to

control its e-mail system as it is to guard its factories and

hallways.Ó (Hamidi, 94 Cal.App.4th at 342.) Golden

Gateway and its predecessor, Robins v. Pruneyard Shopping

Center (1979) 23 Cal.3d 899, affÕd. sub nom. Pruneyard,

supra, are cases involving property in land. This case is about

trespass to chattels, not trespass to land.

The majority compounds its error by analyzing the

speech issues in terms of the public forum doctrine. The

question is not, however, whether IntelÕs e-mail servers can be

deemed a public forum; EFF does not claim that they are a

public forum. Rather, EFF claims that state or common-law

doctrines underlying such judicial relief must provide

breathing space for free speech, and that judicial action that

restrains communications based on the content of those

communications requires speech scrutiny.

Thus, even assuming that trespass to chattels can be

applied in this case, the Court of Appeals completely failed to

address the free speech issues and for this reason alone this

case should be reviewed by this Court.[4]

III. Conclusion

The Court of Appeal first distorted trespass to chattels

doctrine and was then forced into constitutional terrain that it

should not have entered in the first place. In neither step did

the Court of Appeal manifest any recognition of the potential

effects of its reasoning on commerce and speech over the

Internet. The petition for review should be granted in order to

correct these errors and avoid the unnecessary decision of

constitutional issues.

Sincerely yours,

Lee Tien

Attorney for Amicus Curiae

Electronic Frontier Foundation


1 The state legislature has already addressed the problem of

unwanted e-mail. (Hamidi, 94 Cal.App.4th at 352 (Kolkey,

J., dissenting) (citing Bus. & Prof. Code, §§

17538.4, 17538.45); Ferguson v. Friendfinders, Inc.

(2002)___ Cal.App.4th ___, 15 Cal.Rptr.2d 258 (upholding

Bus. & Prof. Code, §17538.4 against dormant

Commerce Clause challenge).)

2 Judicial application of trespass to chattels is unlikely to raise

speech issues. But the fact that a tort typically is not used

against speech does not insulate judicial enforcement when it

is so used. (See generally NAACP v. Claiborne Hardware

(1981) 458 U.S. 886 (applying First Amendment scrutiny to

state application of common-law tort of malicious interference

with business).) The harms alleged by Intel here stem

primarily from the communicative impact of HamidiÕs speech

on Intel and its employees, which is necessarily based on

content. (Forsyth County v. Nationalist Movement (1992)

505 U.S. 123, 134 (ÒListenersÕ reaction to speech is not a

content-neutral basis for regulation.Ó).) Thus, while trespass

to chattels may typically raise no speech issues, its application

here does.

3 Its analysis is somewhat unclear: while the majority

appears to suggest that there was no state action and thus no

constitutional claim, it goes on to analyze the propriety of the

injunction on free speech grounds.

4 EFF does not address the proper resolution of the speech

issue in this letter, although EFF will do so if this Court

accepts the petition for review and permits EFF to submit an

amicus brief.

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