NEWS MEDIA UPDATE · NINTH CIRCUIT · Prior Restraints · Jan. 18, 2006
Court throws out Yahoo case over French Web restrictions
Jan. 18, 2006 · A federal appeals court rejected a lower court ruling Thursday that a foreign court order violated the First Amendment by barring a U.S. Internet search engine from linking to auction listings for Nazi artifacts. The case, which has been closely followed because of new legal issues arising from international Internet use, was dismissed for procedural reasons.
Yahoo Inc. sued in U.S. federal court in 2000 to prevent enforcement of the French court order, which is based on a French criminal law prohibiting sales advertising for Nazi propaganda and artifacts. By the time the U.S. Court of Appeals in San Francisco (9th Cir.) heard the case, Yahoo had cut off access to its France-based site, but not its U.S. site, which can be accessed in France.
The lower court agreed with Yahoo that the “First Amendment precludes enforcement within the United States,” but a split appellate panel held in August 2004 that the court did not have jurisdiction over the French officials. The entire court decided to review the panel’s decision, and chose to skirt the constitutional issue.
“Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others,” Judge William A. Fletcher wrote for a plurality. The “extent — indeed the very existence — of such an extraterritorial right under the First Amendment is uncertain.”
The entire appellate court heard the case, and six of the 11 judges agreed for differing reasons to dismiss without deciding the constitutional issue. Three judges concluded the case was not ripe for a decision, while three judges found that the U.S. District Court in San Jose, Calif., did not have jurisdiction to hear the case.
Judges Fletcher, Mary M. Schroeder, and Ronald M. Gould said the case was too premature and abstract to be reviewed. The French court has not ruled whether Yahoo is violating its orders, nor has it assessed any expenses or costs against Yahoo, they reasoned.
Also, the orders do not “require Yahoo! to restrict access by Internet users in the United States,” Fletcher wrote. “Until Yahoo! knows what further compliance the French court requires, Yahoo! cannot know what effect (if any) further compliance might have on access by American users.”
Judges Warren J. Ferguson, Diarmuid F. O’Scannlain, and Wallace Tashima concluded the lower court lacked jurisdiction to hear the case. The court’s orders were “expressly aimed” at France, not California, because they sought to prevent French citizens from accessing illegal anti-Semitic merchandise in France, the judges reasoned.
When French plaintiffs sued Yahoo for making Nazi materials accessible in France, they “could not precisely have known of Yahoo!’s server locations, security capability or technical procedures or, more important, how they relate to Yahoo!’s California-based operations,” Ferguson wrote.
Five judges criticized the other members of the appeals court for avoiding the First Amendment issue. “By denying adjudication, the majority abdicates our proper role in protecting Yahoo!’s constitutional rights. In so doing, it leaves in place a foreign country’s vague and overbroad judgment mandating a U.S. company to bar access to prohibited content by Internet users from that country.” Judge Raymond C. Fisher wrote.
“Without doubt, the hateful speech the defendants in this case seek to suppress is to be condemned. But censoring speech we find repugnant does not comport with our cherished First Amendment,” Fisher wrote. “Under the majority’s reasoning, a party targeted for enforcement of a foreign judgment restricting its speech in the United States will have no recourse but to appeal to the foreign court, which does not recognize the First Amendment, to try to escape the strictures of the decree– or to demonstrate compliance, either through voluntary action or by submitting to its terms. Only after enduring the decree’s chilling effects while this process plays out, and then faced with whatever sanction the foreign court may impose for noncompliance, may the doors of the United States District Court be opened.”
Yahoo has not decided yet whether it will appeal, Yahoo attorney Bob Vanderet told the California First Amendment Coalition.
The Reporters Committee for Freedom of the Press joined a media coalition that submitted a friend-of-the-court brief to the appeals court, arguing that allowing enforcement of the claim would spur a race-to-the-bottom mentality towards global speech. Enforcing the French court’s orders would establish an international regime in which “Internet Service Providers and content providers would have no practical choice but to restrict their speech to the lowest common denominator in order to avoid potentially crushing liability,” the media argued in their brief.
(Yahoo Inc. v. La Ligue Contre le Racisme et L’Antisemitisme; Plaintiff’s counsel: Michael Traynor, Cooley Godward, San Francisco, Calif.) — SB