free speech (lecture at the hong kong polytechnic university, 2014)

“The right to free speech is not the right to speak for free”

Lawrence LESSIG, Code Version 2.0, Basic Books, New York, 2006, p. 233

EmmanuelGILLET,PhDEmail:[email protected]:CCBY-NC-ND4.0|2014

1.  Introduction 2.  European Union (EU): the Case of “Hate Speech” 3.  Defamation: Concepts 4.  United Kingdom (UK) 5.  Hong Kong SAR (HKSAR) 6.  People’s Republic of China (PRC) 7.  United Stated (US)

Free Speech

EmmanuelGILLET,PhD|CCBY-NC-ND4.0|[email protected]|24January2014

1.1. From GUTENBERG to ZUCKERBERG 1.2. From SOCRATES to BADAWI 1.3. The Value of Speech and the Principle of Free Speech 1.4. Free Speech as a Human Right 1.5. An Absolute Right? The Regulation of Free Speech 1.6. The Anonymity Dilemma

Free Speech > Introduction


1.1. From GUTENBERG to ZUCKERBERG o  1439 movable-type printing press (GUTENBERG) o  1794 telegraphy (CHAPPE) o  1820’s photography (NIÉPCE and DAGUERRE) o  1841 morse (MORSE) o  1865 first commercially sold typewriter (MALLING-HANSEN) o  1895 cinematographe (LUMIÈRE brothers) o  Early 20th century first audio broadcasting o  1926 first television broadcasting o  1960’s first personal computer (OLIVETTI) o  1969 ARPANET (roots of Internet) o  1978 Minitel o  1995 “democratization” of Internet o  1996 RankDex search engine (Robin LI, Baidu) o  1998 Google search engine (Larry PAGE and Sergei BRIN)

o  WEB 2.0 v USER-GENERATED CONTENT (UGC)

o  2001 Wikipedia (Jimmy WALES and Larry SANGER) o  2003 Wordpress (Michel VALDRIGHI) o  2004 Facebook (Marc ZUCKERBERG) o  2006 Twitter (Jack DORSEY) o  2007 iPhone (Steve JOBS, Apple) o  2009 Weibo (SINA)

o  To be continued…

§  Different times §  Different technologies



1.2. From SOCRATES to BADAWI

o  399BC: Socrates (death penalty)

o  (…) o  (…)

o  2008: Raif Badawi (7 years prison + 600 lashes) o  2013: Raif Badawi may face death penalty

o  To be continued?

§  Same Issues

Socrates 470-469BC − 399BC

Raif BADAWI 1982 - ?

§  Different times §  Different technologies



1.3. The Value of Speech and the Principle of Free Speech

“[S]peech ought to be protected because the free flow of ideas is the best (or only) way for us to access truth (or knowledge) (…) speech must be protected in order for a democracy to function well (…) speech must be free in order for persons to be genuinely autonomous (by deciding for themselves what to think and do).”(Ishani MAITRA and Mary Kate MCGOWAN, Speech and Harm: Controversies Over Free Speech, Oxford Scholarship Online, 2012, p.2.).



1.4. Free Speech as a Human Right

§  At the International Level

§  Universal Declaration of Human Rights (1948), Article 19

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

§  At the Regional and Domestic Level

§  Free Speech as a Constitutional Right



1.5. An Absolute Right? The Regulation of Free Speech §  Free speech is not an absolute right

§  Examples of Possible Conflicting rights

▪  Freedom of expression v. Right to dignity ▪  Freedom of expression v. Right to privacy ▪  Freedom of Expression v. Intellectual Property



1.5. An Absolute Right? The Regulation of Free Speech §  Free speech is not an absolute right

§  Examples of Possible Conflicting rights

CRIMINALMATTERS(PUBLICPOLICY) CIVILMATTERS

§  Defamation §  InvasionofPrivacy

§  Apologyofcrimes §  InfringementofIntellectualPropertyRights

§  Publicencouragementtodiscrimination,hatred,violence,terrorism

§  Negationism (Holocaust denial)

§  Harassment

§  Obscenity



1.6. The Anonymity Dilemma

THERIGHTOFANONYMITY THEPRICEOFANONYMITY




THERIGHTTOANONYMITY THEPRICEOFANONYMITY




THERIGHTTOANONYMITY THEPRICEOFANONYMITY

Facilitates freedom of expression Impossibility to identify offenders

Preserves privacy No legal threat, no justice



2.1. European Legal Framework 2.2. Case law: “Hate Speech”

Free Speech > EU and Council of Europe


2.1. European Legal Framework 2.1.1. European Legal Architecture (simplified) 2.1.2. Council of Europe 2.1.3. European Union



2.1.1. European Legal Architecture (simplified)

EuropeanLaw[supranational]

DomesticLaw[nationallaw]



2.1.2. European Legal Framework (Council of Europe)

§  Principle: Freedom of Expression

§  European Convention on Human Rights and Fundamental Freedoms (1950), Article 10(1) “Freedom of Expression”

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.




§  Restrictions: Public Order / Public Policy

§  European Convention on Human Rights and Fundamental Freedoms (1950), Article 10(2) “Freedom of Expression”

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”




§  Restrictions: Privacy §  European Convention on Human Rights and Fundamental Freedoms (1950), Article 8

“Right to Respect for Private and Family Life”

§  “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

§  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”




§  Restrictions: Intellectual Property §  European Convention on Human Rights and Fundamental Freedoms (1950), Protocol I

(1952), Article 1(1) “Protection of Property”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

§  The scope of this article has been extended to intellectual property



2.1.3. European Legal Framework (European Union)


§  Charter of the Fundamental Rights of the European Union (2000), Article 11 “Freedom of Expression and Information”

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.”



2.1.3. European Legal Framework (European Union)

§  Restrictions: Other Fundamental Rights

§  Human Dignity (article 1) §  Respect for Private Life and Family Life (article 7) §  Freedom of Though, Conscience and Religion (article10) §  Intellectual Property (article 17(2))



2.2. “Hate Speech”

§  Case law 1: Freedom of expression v. apology of crimes, public incitement to discrimination, hatred and violence

§  Jurisdiction: France - Paris court of first instance, 22 May 2000 / See also US below

§  LICRA (Ligue Internationale Contre le Racisme et l’Anticémitisme) and UEJF (Union des Etudiants Juifs de France) v. Yahoo! Inc. and Yahoo! France

Ø  Auction website with Nazi items (including the book: Adolf HITLER, Mein Kampf, 1925) Ø  Complaint from LICRA and UEJF

o  Yahoo! Sales are “an offense to the collective memory of a nation profoundly wounded by the atrocities committed in the name of the Nazi criminal enterprise”

o  Yahoo was ordered to “take all measures such as would dissuade and render impossible all consultations on yahoo.com of the service of auctioning of Nazi objects as well as any other site or service which constitute an apology of nazism or which contest the nazi crimes.”

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2.2. “Hate Speech” §  Case law 1: Freedom of expression v. apology of crimes, public incitement to

discrimination, hatred and violence

§  Jurisdiction: France – Paris Court of First Instance, 24 January 2013; Paris Court of Appeal, 12 June 2013

§  UEJF (Union des Etudiants Juifs de France) v. Twitter,

Ø  Anti-Semiatic comments and pictures with the hashtag #unbonjuif (“a good jewish”), anonymously

Ø  UEJF filed suit to force Twitter to identify the authors Ø  The court gave Twitter two weeks to release the data Ø  Twitter refused: “Twitter is an American company, 1st

Amendment of the American Constitution shall apply” Ø  UEJF sued Twitter for €50 million Ø  Finally, Twitter released the data to the French prosecutors

Cas

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¡  defamation, n. (…) 1. The act of harming the reputation of another by making a false

statement to a third person. • If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault. 2. A false written or oral statement that damages another's reputation. (…)

¡  Black’s Law Dictionary, 9th edition © 2009 Thomson Reuters

¡  English law makes a distinction between libel and sander.

Free Speech > Defamation > Concepts


¡  fair comment, n. (…) A statement based on the writer's or speaker's honest opinion about a

matterofpublicconcern.•Faircommentisadefensetolibelorslander.




libel (…), n. (…) 1. A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast. • Libel is classified as both a crime and a tort but is no longer prosecuted as a crime. — Also termed defamatory libel. 2. The act of making such a statement; publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words. (…)




¡  slander, n. (…) 1. A defamatory assertion expressed in a transitory form, esp. speech. (…)

2. The act of making such a statement. (…)


¡  A broadcast made by radio station over the Internet is slander (Mickerlberg v. 6PR Southern Cross and Ors [2001] WASC 150)



4.1. Free Speech: UK Legal Framework 4.2. Defamation

Free Speech > Freedom of Expression and Defamation > UK


4.1. Free Speech: UK Legal Framework


▪  European Convention on Human Rights and Fundamental Freedoms (1950) ▪  Charter of the Fundamental Rights of the European Union (2000)

§  Restrictions:

▪  Privacy ▪  Harassment ▪  Hate speech ▪  Racist or anti-religious speech ▪  Incitement to terrorism ▪  Obscenity ▪  Defamation ▪  Intellectual property rights ▪  Etc.



4.2. Defamation 4.2.1. Elements of Defamation 4.2.2. Defences 4.2.3. Where? 4.2.4. When? 4.2.5. Who shall Be Liable?



4.2.1. Elements of Defamation

Defamation Act 2103 Three elements: 1.  A defamatory statement; and 2.  The defamed party must be:

▪  Identifiable; or ▪  A natural person or a corporation; and

3.  The defamatory statement must be published



4.2.2. Defences

§  Truth (Defamation Act 2013, Article 2)

§  (1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

§  (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

§  (3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.



4.2.2. Defences

§  Honest Opinion (Defamation Act 2013, Article 3)

(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met. (2) The first condition is that the statement complained of was a statement of opinion. (3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion. (4) The third condition is that an honest person could have held the opinion on the basis of—

(a) any fact which existed at the time the statement complained of was published; (b) anything asserted to be a fact in a privileged statement published before the statement complained of.

(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion. (6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion. (7) For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it

(a) a defence under section 4 (publication on matter of public interest); (b) a defence under section 6 (peer-reviewed statement in scientific or academic journal); (c)a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege); (d) a defence under section 15 of that Act (other reports protected by qualified privilege).



4.2.2. Defences

§  Publication on matter of public interest (Defamation Act 2013, Article 4)

¡  (1) It is a defence to an action for defamation for the defendant to show that— §  (a) the statement complained of was, or formed part of, a statement on a matter of public

interest; and §  (b) the defendant reasonably believed that publishing the statement complained of was in the

public interest. ¡  (2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters

mentioned in subsection (1), the court must have regard to all the circumstances of the case. ¡  (3) If the statement complained of was, or formed part of, an accurate and impartial account of a

dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

¡  (4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

¡  (5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.



4.2.2. Defences

§  Operators of websites (Defamation Act 2013, Article 5)

¡  (1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.

¡  (2) It is a defence for the operator to show that it was not the operator who posted the statement on the website.

¡  (3) The defence is defeated if the claimant shows that— §  (a) it was not possible for the claimant to identify the person who posted the statement, §  (b) the claimant gave the operator a notice of complaint in relation to the statement, and §  (c) the operator failed to respond to the notice of complaint in accordance with any

provision contained in regulations. ¡  (4) For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person

only if the claimant has sufficient information to bring proceedings against the person.



4.2.2. Defences

§  Operators of websites (Defamation Act 2013, Article 5) (continued)

¡  (5) Regulations may— §  (a) make provision as to the action required to be taken by an operator of a website in response

to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);

§  (b) make provision specifying a time limit for the taking of any such action; §  (c) make provision conferring on the court a discretion to treat action taken after the expiry of a

time limit as having been taken before the expiry; §  (d) make any other provision for the purposes of this section.

¡  (6) Subject to any provision made by virtue of subsection (7), a notice of complaint is a notice which— §  (a) specifies the complainant's name, §  (b) sets out the statement concerned and explains why it is defamatory of the complainant, §  (c) specifies where on the website the statement was posted, and §  (d) contains such other information as may be specified in regulations.

¡  (…)



4.2.3. Where?

§  Dow Jones and Co. v. Gutnick [2002] HCA 56; 210 CLR 575 [Australia]

Ruling: “Defamation is to be located at the place where the damage occurs (…). It is where [a] person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.” Conclusion: Australian courts have jurisdiction

PLAINTIFF DEFENDANT

Australia Lex loci delicti

(or multiple publication rule)

US (New Jersey) Location of the servers



4.2.3. Where?

§  Loutchansky v. Times newspapers [2002] 2 WLR 640; [2002] QB 783 [UK]

Ruling: Multiple publication rule applies Conclusion: UK courts have jurisdiction



4.2.3. Where?

§  King v. Lewis [2004] EWCA Civ. 1329 [UK]

Three US-based individuals and a US-based corporation Ruling: “The libels alleged consist in two texts stored on websites based in California. In the ordinary way they can be, and have been, downloaded here. It is common ground that by the law of England the tort of libel is committed where publication takes place, and each publication generates a separate cause of action. The parties also accept that a text on the Internet is published at the place where it is downloaded.” Conclusion: UK courts have jurisdiction But the decision was criticized: the court did not even take into consideration the actual harm the plaintiff suffered from the defamatory content.



4.2.3. Where?

§  Dow Jones v. Jameel [2005] EWCA Civ. 75 [UK]

Legal issue: whether the plaintiff suffered actual harm from the defamatory content. Relevant facts: only 2 subscribers (up to 6,000) had accessed to the relevant article. Question: substantial tort? No Ruling: “It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly judge time, to an action where so little is now seen to be a stake (…).” Conclusion: UK courts do not have jurisdiction



4.2.4. When?

§  Each re-publication is a publication that can make the publisher liable   Re-twitting   Forwarding an e-mail   Re-blogging   Etc.



4.2.5. Who shall be Liable?

§  Authors §  Editors §  Publishers §  Distributors §  Internet Service Providers (ISPs)?



4.2.5. Who shall be Liable?

§  Defamation Act 2013, Article 5 (see above slides 41 and 42)

§  E-commerce Directive, Articles 12-14 (European law, European Union)

Principle: immunity Condition: ISPs are required to remove the defamatory content promptly and prevent further distribution or republication



5.1. HKSAR Legal Framework 5.2. Defamation

Free Speech > Freedom of Expression and Defamation > HK


5.1. HKSAR Legal Framework


▪  Basic Law, Article 27

“Hong Kong residents shall have freedom of speech, of the press and of publication (…)”

§  Restrictions:

▪  Privacy ▪  Freedom of conscience ▪  Obscenity ▪  Defamation ▪  Intellectual property rights ▪  Etc.



5.2. Defamation

§  Hong Kong – Common law system

§  Defamation Ordinance (CAP 21) ì

§  Defences ▪  Fair comment (Defamatory Ordinance, Section 27) ▪  Statement without actual malice and without gross negligence followed by public

apologies (Defamatory Ordinance, Section 4) ▪  Absolute privileges: ▪  members of the legislative council (Legislative Council Ordinance CAP 382,

Section 3) ▪  Report of a court hearing (Defamatory Ordinance, Section 13)

▪  Qualified privileges: ▪  Dmond v. Atuahene-Gima [2000] 1 HKLRD ▪  Qualified privileges of newspapers (Defamatory Ordinance, Section 14)



5.2. Defamation §  Where the Defamatory Statement is Available?

▪  No Hong Kong case on that matter ▪  We could assume that Hong Kong courts would follow UK cases

§  Who? ▪  Individuals: yes ▪  Corporations: yes ▪  Public entities: no ▪  Hong Kong Polytechnic University v. Next Magazine Publishing [1997] 7 HKPLR

286



5.2. Defamation §  Liability of ISPs

Oriental Press v Fevaworks (Golden Forum) FACV 15/2012 (CFI Judgment 4 July 2013)

After they came to know of the defamatory postings, defendants acted with reasonable care since they promptly removed them à Not liable



6.1. PRC Legal Framework 6.2. Defamation 6.3. Online Rumors

Free Speech > Freedom of Expression and Defamation > PRC


6.1. PRC Legal Framework Principle: Constitution of the People’s Republic of China, Article 35.

“Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”



6.1. PRC Legal Framework Principle: Constitution of the People’s Republic of China, Article 38.

“The personal dignity of citizens of the People's Republic of China is inviolable. Insult, libel, false charge or frame-up directed against citizens by any means is prohibited.”



6.1. PRC Legal Framework

Restrictions:

Constitution of the People’s Republic of China, Article 40

“The freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law.”



6.1. PRC Legal Framework

Restrictions:

Constitution of the People’s Republic of China, Article 47

“Citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavours conducive to the interests of the people made by citizens engaged in education, science, technology, literature, art and other cultural work.”



6.2. Defamation ¡  General Principles of the Civil Law of the People's Republic of China" adopted at the Fourth

Session of the Sixth National People's Congress, promulgated by Order No. 37 of the President of the People's Republic of China on April 12, 1986 §  In the Section IV "Personal Rights" under Chapter V "Civil Rights", Article 101 "Citizens and

legal persons shall enjoy the right of reputation" has stated that "the personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited."

§  In the Section II "Civil Liability for Breach of Contract" under the Chapter VI "Civil Liability", Article 120 states that "if a citizen's right of personal name, portrait, reputation or honor is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses."

¡  "Administrative Measures on Internet Information Services" (PRC, 2000) adopted at the 31st Executive Meeting of the State Council on September 20, 2000 by Order No. 292 of the State Council of the People's Republic of China, Article 15

¡  Regulation on administration of Internet Broadcasting Bulletin System (BBS) (People's Daily, 2000), Article 9



6.2. Defamation (continued) Pursuant to Article 246 of the Criminal Law, libel refers to an act that, in serious cases, whoever publicly humiliates another person or invents stories with the intention to thoroughly defame another person’s character and damage his or her reputation.



6.2. Defamation ¡  MAX Computer Station, Inc. (MAX) v. Wang Hung ¡  Haier v. Chen Yi-cong ¡  Beautiful Garden v. BBS



6.3. Online Rumors Judicial Interpretation: Supreme People’s Court and the Supreme People’s Procuratorate, Interpretations on Some Issues Concerning the Application of Laws for in the Handling of Defamation via Information Networks and Other Criminal Cases The Joint Interpretation specifies that any of the following constitutes “fabricating stories to defame others” within the meaning of Article 246 of the Criminal Law:

1. Fabricating defamatory stories and spreading, or organizing or directing others to spread, the fabricating stories on the Internet; 2. Tampering with online information concerning others to fabricate stories to harm the reputation of others, and spreading, or organizing or directing others to spread, the fabricating stories on the Internet; or 3. Knowingly posting fabricated defamatory information online, if the circumstances are serious.



6.3. Online Rumors Judicial Interpretation: Supreme People’s Court and the Supreme People’s Procuratorate, Interpretations on Some Issues Concerning the Application of Laws for in the Handling of Defamation via Information Networks and Other Criminal Cases The Joint Interpretation specifies that any of the following constitutes “fabricating stories to defame others” within the meaning of Article 246 of the Criminal Law:

1. Fabricating defamatory stories and spreading, or organizing or directing others to spread, the fabricating stories on the Internet; 2. Tampering with online information concerning others to fabricate stories to harm the reputation of others, and spreading, or organizing or directing others to spread, the fabricating stories on the Internet; or 3. Knowingly posting fabricated defamatory information online, if the circumstances are serious.

Thus even if a person (presumably including the platform provider) has not created the defamatory information, if the person (or platform provider) knows that the information was fabricated and is defamatory, then it may have liability if the circumstances are serious.



6.3. Online Rumors The Joint Interpretation provides that any of the following circumstances involving an online posting constitutes a “serious circumstance”:

1. Where a piece of defamatory information has at least 5,000 clicks or been read at least 5,000 times, or has been forwarded 500 times; 2. Where the online defamatory information causes serious negative effects on the victim or his or her close relatives, such as mental disorder, self-mutilation or suicide; 3. Where the defaming offender was subject to administrative penalties for defaming others within the last two years; or 4. Other serious circumstance.

That the Joint Interpretation includes the basket clause of “other serious circumstance” leaves a huge area of uncertainty.



7.1. US Legal Framework 7.2. Yahoo! V. LICRA

Free Speech > Freedom of Expression and Defamation > USA


7.1. US Legal Framework

§  First Amendment (1791) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” §  Anonymity: a component of the First Amendment



7.2. Yahoo! v. LICRA

Yahoo! v. LICRA 379 F. 3d1120 (9th Cir. 2004)

