By Robert M. O'Neil

W hen Henry Ford proudly attached the distinctive blue oval (containing his name in script) to the first Model A in late 1927, he could hardly have foreseen how contentious the use of that symbol might someday become.

Of course Mr. Ford could not have anticipated the Internet, with its potential for mischief. Nor could he have anticipated the use that might be made of his logo by Robert Lane, a disillusioned Ford aficionado and freelance engineer, who created the Web site "blueovalnews.com" to taunt Mr. Ford's automobile company via the Internet.

Much of the material Mr. Lane had obtained from anonymous Ford employees, and posted on his Web site, was highly secret -- confidential corporate strategies, Ford product plans, and detailed blueprints for models some years into the future.

Obviously Ford executives did not welcome the news that such material had become available to anyone with a browser. They therefore went at once to federal court, seeking an injunction against the Web site and its proprietor, claiming violation of copyright laws and the unauthorized use of trade secrets.

Mr. Lane, in response, vowed to maintain the site as a forum for public expression of views and opinions about Ford -- analogizing himself, in one moment of hyperbole, to martyrs of the past including Martin Luther King, Jr., and even Christ.

Judge Nancy Edmunds initially granted a temporary restraining order to give her time for further study of what was clearly a case of first impression. A few days later she dissolved most of the decree, ruling that a maverick Internet site enjoyed the same First Amendment rights as did newspapers and other traditional print media.

Though she did continue in force that part of the original order that barred Lane from posting legally protected documents in violation of copyright laws, most of the material on blueovalnews.com was not of that character and thus became fair game for public consumption at Ford's expense.

To the extent that certain trade secrets might seem to claim protection under Michigan law, Judge Edmunds ruled that a federal court injunction against their posting would be a prior restraint and thus contrary to the First Amendment.

Not only would such a decree abridge rights the Supreme Court had recognized in, for example, New York Times Co. v. United States (the Pentagon Papers case); in addition, she noted in Sixth Circuit law an especially strong aversion to prior restraint, reflected in Procter & Gamble, Inc. v. Bankers Trust Co.

Ford had argued for a more lenient standard partly on the ground that Lane's material -- indeed the entire Web site -- should be treated as commercial speech; Lane, they noted, had once threatened to sell some of the blueprints and had told Ford he planned to convert blueovalnews.com to a fee-paid subscription site, though he never did so. Moreover, the site contained a link that bore the message "advertise on us."

But Judge Edmunds was not persuaded by such factors. Citing the Supreme Court's ruling in Bolger v. Youngs Drug Products, she concluded that "the factors cited by Ford ... do not convert Lane's website into commercial speech, the core notion of which is speech which 'does no more than propose a commercial transaction.'"

She continued: "With reference to the factors cited in Bolger, there was no evidence submitted of advertising ever actually done on the website, no evidence submitted of a specific product offered for sale, and no evidence submitted that Lane's motivation in publishing his website was in fact economic."

That part of the ruling was hardly central to the outcome, and was barely noted in the extensive media coverage of the case. Yet it seems potentially helpful as an early indication of how courts may view arguably commercial elements, such as links to commercial sites maintained by others.

Judge Edmunds was clearly correct in holding that such a link did not alter the character of the plainly noncommercial site on which it appeared, nor did its presence imply a commercial taint to the posting of material that was otherwise fully protected.

Obviously there will need to be much more extensive litigation of these issues before clarity emerges over the status of Web sites and other Internet material that may reflect some commercial elements, but ought not for that reason be denied the full protection that noncommercial expression receives. The blueovalnews.com case is, at the very least, a promising beginning, if only that.

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).