Background
The case began with a civil lawsuit filed in France against
Yahoo! in 2000 by two civil liberties groups, La Ligue Contre le
Racisme et l'Antisemitisme and L'Union des Etudiants Juifs de
France. A Paris court ordered Yahoo! to block internet users in
France from accessing its auction sites selling Nazi
memorabilia.
The court reasoned that French law prohibits the display or sale
of anything that incites racism. It was the first time a French
court had issued such an order on a foreign company.
The court also imposed fines of around $13,300 per day upon the
company for non-compliance.
Yahoo! did not appeal the French court's decision in France;
instead, it sought a declaration from a federal court in
California. It claimed that the order to ban French users from
accessing certain auction sites affected the operations of its US
servers, and was therefore unenforceable under the First Amendment
provisions on free speech.
Yahoo.fr was not the issue; the company already tried to ensure
that its French site complied with French law. But the French
court's concern was that yahoo.com could still be accessed by
French users. Yahoo! did not continue the fight because it wanted
to sell Nazi memorabilia from yahoo.com. Instead, Yahoo! wanted to
fight the point of principle: that a French court should not
control the content of its US site.
In 2001 the US District Court accepted Yahoo!'s arguments and
ruled that the French court could not regulate the company's speech
on the internet. The two French groups then appealed the decision
to the 9th US Circuit Court of Appeals, arguing that the First
Amendment cannot prevent the order from being enforced. They also
argued that Yahoo! had made no attempt to comply with the order
before suing in the US.
In August 2004, a divided Court of Appeals reversed the lower
court decision, ruling that the District Court did not have
jurisdiction to hear the case. Yahoo! appealed.
Yesterday's ruling
An 11-judge panel of the 9th US Circuit Court of Appeals issued
a majority ruling yesterday which dismissed Yahoo!'s appeal. The
six judges who gave the majority ruling were themselves split into
two factions.
The first group of three judges ruled that US courts did not
have jurisdiction on the issue at all.
The second group of three judges found that, as Yahoo! had
voluntarily amended its site so as to exclude the sale of Nazi
memorabilia, it was unlikely that the French groups would ever seek
to enforce the French ruling. The case was therefore premature,
although the US courts would have jurisdiction if US enforcement of
the ruling was ever sought.
"It is extremely unlikely that any penalty, if assessed, could
ever be enforced against Yahoo in the United States. Further, First
Amendment harm may not exist at all, given the possibility that
Yahoo has now 'in large measure' complied with the French court's
orders through its voluntary actions, unrelated to the orders,"
reads the majority ruling, given by Judge William A Fletcher.
In effect, the Appeals Court decided that the case was moot and
that that they did not need to consider the First Amendment
arguments put forward by Yahoo!.
“Yahoo! wants a decision providing broad First Amendment
protection for speech and speech-related activities on the Internet
that might violate the laws or offend the sensibilities of other
countries,” says the ruling. “As currently framed, however,
Yahoo!’s suit comes perilously close to a request for a forbidden
advisory opinion.”
In contrast, the five dissenting judges found that there were
issues to be answered and that the First Amendment arguments should
have been considered.
Giving the minority opinion, Judge C Fisher criticised the
majority opinion for imposing “a heightened standard on a US
plaintiff seeking to vindicate its First Amendment rights when that
plaintiff is challenging a foreign prior restraint.”
“We should not allow a foreign court order to be used as
leverage to quash constitutionally protected speech by denying the
United States-based target an adjudication of its constitutional
rights in federal court,” he said.
Reaction
A Yahoo! spokeswoman told the LA Times: “The majority of the
court could not agree as to whether the case was ready to be
decided on the first amendment issue."
“Based on today’s ruling, Yahoo! believes that free speech
rights would prevail if the French court orders were attempted to
be enforced in the US,” she added.
