January 12, 2006 5:55 PM PST

Court dismisses Yahoo's free-speech lawsuit

A divided federal appeals court on Thursday ducked the question of whether a French court order censoring Nazi-related materials can apply to Yahoo's U.S.-based Web site.

In a case that pits European restrictions on "hate speech" against the values of free expression enshrined by the United States' First Amendment, a slender 6-5 majority of the 9th U.S. Circuit Court of Appeals dismissed Yahoo's case involving the online display of Nazi-related books, posts and memorabilia.

Excerpt from the French court order:

"We order the Company Yahoo! Inc. to take all necessary measures to dissuade and render impossible any access via Yahoo.com to the Nazi artifact auction service and to any other site or service that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes."

"Unless and until Yahoo changes its policy again, and thereby more clearly violates the French court's orders, it is unclear how much is now actually in dispute," one group of judges wrote (click for PDF). Also, those judges said, it's "extremely unlikely" that any penalty could be assessed against Yahoo's U.S. operations.

In an unusual twist, the 11-judge panel fractured into multiple factions, some of which said the case should be dismissed on technicalities or because it was too preliminary, and others who said it was an easy call because the French court order is clearly unenforceable under the U.S. Constitution.

Yahoo filed the suit in December 2000 in an effort to clear up whether a U.S. company was required to rework its Web site to comply with a French court order. In April of that year, the Paris-based International League against Racism and Anti-Semitism (LICRA) took the Web portal to court to stop sales of Nazi paraphernalia to French citizens on its auction site. French law prohibits the sale or exhibition of objects associated with racism.

A French court agreed with LICRA. It required Yahoo to make it "impossible" for French citizens to connect to a Yahoo Web site with messages relating to Nazi objects, or ones that displayed excerpts from Adolf Hitler's "Mein Kampf" and "The Protocols of the Elders of Zion," or messages that contested Nazi crimes.

But Yahoo won its initial court battle in the U.S. A federal district judge ruled in November 2001 that "although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution."

In a dissent on Thursday, a minority of 9th Circuit judges echoed that argument. "Censoring speech we find repugnant does not comport with our cherished First Amendment," the dissent said. "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."

Joel Reidenberg, a professor of law at Fordham University who wrote a law review article on the topic, said he was alarmed that a majority of the 9th Circuit found sufficient jurisdictional grounds existed to consider the case.

"This is a radical and troubling expansion of U.S. jurisdiction that may put U.S. companies at risk abroad," Reidenberg said in e-mail. "In essence, the majority would allow any U.S. company that loses a lawsuit abroad to bring the suit back to the U.S. for a second bite at the apple." Now, he said, foreign companies that lose in the U.S. might take their dispute back to a more friendly court at home.

The U.S. case does not involve Yahoo's French subsidiary, which has complied with French law.

13 comments

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I would think
that if Yahoo's business is only on US soil that the French have no right to make yahoo censor anything.

But, like most things I doubt it's that clear and simple.
Posted by System Tyrant (1453 comments )
Reply Link Flag
I wonder...
...what those judges were smoking because I want some. Geez, it should be an open and shut case. The French Court order is null and void inside the borders of the United States because it directly conflicts with the First Amendment of the US Constitution.

Now you mean to tell me that if my website violates some other country's law, that they can prosecute me in their country even though it's legal in my own country? Sorry, but that's asine. We would ALL be in trouble somewhere if that was the case.

As for this case, Yahoo.com operates within the borders of the US, by US citizens, for the benifit of US citizens, under US law and jurisdiction. Putting the offensive nature of the material aside, where does France get off telling me what material that I can and cannot have on my website that is hosted inside the borders of the United States, for the benifit of my fellow US citizens?

My answer to them? Go pound sand. If you don't like it, then filter it. The Chinese filter the web, so why can't you? What's your problem?

US Supreme Court, we need you to set this matter straight...Now.
Posted by Maelstorm (130 comments )
Link Flag
The U.S. Constitution protects free speech in the U.S.
Rule #1 - Free Speech is protected by the U.S. Constitution.

Got a problem with that, see rule #1.

There are many things to dislike and like in the world, and on some items like distateful information, a majority of people don't want to view it. But the U.S. constitution protect people from the Tyranny of the Majority in such matters where:

- The information is newsworthy.
- Isn't harmful (like certain forms of pornography) which can do great trauma to the victims of such pornography.

Clearly, some drugs can do great harm, so can heavy weapons, toxic material. These are not protected by the U.S. constitution.

Ideas/facts/information doesn't harm people, it's the weakness of the human heart that causes the problem. Not the problem of people in the U.S. if the people in other countries need a place to put their head in the sand.
Posted by Jake Leone (143 comments )
Link Flag
Message has been deleted.
Posted by PAULA2 (5 comments )
Reply Link Flag
The final message being: People in U.S. are protected by U.S. Constitution
This article is (to say the least) confusing. But the message is clear.

Yahoo, filed a lawsuit (to protect Santa Clara Based Yahoo from interference from a foreign country) and they won a lawsuit.

Just because (useful, non-pornographic) information is banned (by countries that keep their head in sand on so many issues), doesn't mean that countries have right to tell U.S. companies on U.S. soil that they have to comply with that ban.

And, clearly People in the U.S. are protected from any such ban by the U.S. Constitution.

Contrast this against Microsoft recent policy paradyme where they bent over backward to appease the Chinese communist state, which on whim decided that a certain blog (located on U.S. soil and read by U.S. Citizens) needed to be burned. And Microsoft happily complied with this order. And you can see a clear difference.

Microsoft doesn't care about human right. Microsoft only cares about profits and money.

Microsoft had the right to refuse this order, but like a good servant of the tyrant, did the bidding of its master in Beijing without question. Indeed with great insincerity and glee.

So wake up Microsoft, we can see that you are the kind of company that will do anything for money.

Microsoft is all about HOW NIGHTMARES CONTINUE.
Posted by Jake Leone (143 comments )
Reply Link Flag
Would you like FREEDOM FRIES with that?
Hey, France, blow out your proverbial A$$! And the worst Calif wine is better than your best bourdeaux!

Parlez vous l'anglais?
Posted by ray08 (64 comments )
Reply Link Flag
Make mine Fascist Fries!
And have that delivered to the Ministry of Truth.
Posted by Mister C (423 comments )
Link Flag
French Fries
Yes I do, stupid Bushy Boy.
Did you actually understand the topic of the news or do you have trouble reading your own language?
Or maybe is it too much bad wine in your veins?
Posted by Guillaumeb (9 comments )
Link Flag
Personally
I think Yahoo should voluntarily NOT ship this items to France.
This is how we handled the whole wine issue here in the US. Until
recently, you could not legally ship wine to certain state, and
companies complied. Why not do the same with France and these
articles. I think this is not just a Free Speach issue per say, but
more of a commerce issue.
Posted by cashaww (77 comments )
Reply Link Flag
free speech schmree smeech,yahoo software allows users to delete anyone who posts in y!a
down the hatch go hundreds of posts per hour,appeals are usless.
if you want a free press,you have to buy one
Posted by tomas1960 (1 comment )
Reply Link Flag
 

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