April 2, 2006
Private: Yahoo! v. LICRA: Foreign Censorship & American Speech
By Daniel Kotler: Editor-at-Large
The Ninth Circuit recently undid an important district court decision ensuring that foreign countries won't be able to censor speakers whose speech within the U.S. reaches foreign jurisdictions through the internet.
Although Americans often seem to take the freedom of speech for granted, the First Amendment guarantee represents an extraordinary anomoly, even among other Western democracies. The International Covenant on Civil & Political Rights (ICCPR), a source of fundamental international human rights law, provides that "everyone shall have the right to freedom of expression" (��19). The same section, however, concludes: "The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."
Similarly, Article 11 of the French Declaration of the Rights of Man and of the Citizen provides only limited free speech rights: "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law." Note the implications of that last clause, "...shall be responsible for such abuses of this freedom as shall be defined by law."
Among the many restrictions France has placed on free speech is �� R645-1 of the French Penal Code, a ban on the sale of Nazi memorobilia, on Nazi sympathizing, and on Holocaust denial. In April 2000, La Ligue Contre Le Racism et L'Antisemitisme (LICRA), a French student group, sent a cease and desist letter to Yahoo!, Inc. at Yahoo!, Inc.'s California offices. LICRA demanded that Yahoo!, Inc. remove certain Nazi sympathing websites which were accessible in France, and prevent the sale to individuals in France of certain Nazi memorabilia and literature which was available through Yahoo! Auctions. Five days later, LICRA took action in a French court. The French court eventually issued two "interim orders" (English translation here). The first order required Yahoo!, Inc. to ensure the pro-Nazi websites and the sales of Nazi memorabilia could not be accessed in France. The second order required Yahoo!, Inc. to pay substantial fines which increase over time if Yahoo does not comply. Although LICRA has not attempted to enforce thejudgments, LICRA could do so at any point. In theory, the fines to which Yahoo! would be subject keep increasing the longer Yahoo! remains uncompliant. Following these orders, Yahoo!, Inc. altered its service in such a way to substantially comply with the French court's first order. Yahoo!, Inc. insists it initiated the changes for reasons independent of the French court order. Yahoo!, Inc. also claims to continue at least partially to violate the order. [See the 9th Cir. opinion for these facts]. On December 21, 2000, Yahoo!, Inc. sought a declarative judgment that U.S. courts could not enforce the French court orders. Yahoo!, Inc. claimed that the First Amendment would forbid U.S. courts from enforcing such an order. The District Court, after holding that it did have personal jurisdiction over the defendents LICRA et al to hear the case, agreed with Yahoo!, Inc. and granted the order.
The 9th Circuit dismissed the District Court opinion in a divided en banc decision. Eight judges agreed the court had personal jurisdiction over LICRA, et al. Of those, five judges agreed with the lower court's decision. Three judges held the court had personal jurisdiction, but voted to dismiss because they held the issue was not ripe for judicial resolution. Another three judges voted to dismiss because they held that the court had no personal jurisdiction over LICRA. The court found a 6-5 majority voting to dismiss by combining both sets of judges who voted to dismiss.
In an Amicus brief, the Electronic Frontier Foundation argued that: "If a foreign person or entity takes affirmative steps in a foreign court to force a US-based speaker to censor lawful, constitutionally protected speech aimed at US listeners, the US courts should and do have jurisdiction to protect the speech and vindicate the First Amendment protections afforded to both speakers and listeners," states the brief. "A foreign court judgment imposing significant daily fines on US-based speech that is perfectly lawful in the US can create a substantial chilling effect on the US speaker. [...] The chilling effect would be particularly acute for the many individuals and small organizations for whom the Internet is an indispensable means of reaching an audience but who lack the resources to participate in overseas legal proceedings."
The Ninth Circuit opinion which held the issue was not ripe seems particularly disingenuous on the question of hardship. The opinion [at 441-42] says not deciding now imposes no hardship on Yahoo!, Inc. because courts probably would not enforce monetary damages. In effect, the three judges who held the claim was not ripe recognize the importance of reassuring Yahoo!, but refuse to do so in any binding fashion that Yahoo!, Inc. could rely on. The 9th Circuit dissent as to ripeness warns [at 447]: "By peremptorily terminating Yahoo!'s access to federal court, the majority establishes a new and burdensome standard for vindicating First Amendment rights in the Internet context, threatening the Internet's vitality as a medium for robust, open debate."