YAHOO! v. La Ligue Contre Le Racisme Et L’Antisemitisme 169 F.Supp.2d 1181 (N.D. Cal. 2001)
Judge Jeremy Fogel
I. PROCEDURAL HISTORY [Defendant] La Ligue Contre Le Racisme Et L’Antisemitisme (“LICRA”) [is a French nonprofit organization] dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. (“Yahoo!”) is a corporation organized under the laws of Delaware with its principal place of business in Santa Clara, California. . . . Yahoo! services ending in the suffix “.com,” without an associated country code as a prefix or extension (collectively, “Yahoo!’s U.S. Services”), use the English language and target users who are residents of, utilize servers based in, and operate under the laws of the United States. Yahoo! subsidiary corporations operate regional Yahoo! sites and services in 20 other nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional websites contains the host nation’s unique two-letter code as either a prefix or a suffix in its URL. Yahoo!’s regional sites use the local region’s primary language, target the local citizenry, and operate under local laws.
As this Court and others have observed, the instant case presents novel and important issues arising from the global reach of the Internet. Indeed, the specific facts of this case implicate issues of policy, politics, and culture that are beyond the purview of one nation’s judiciary. Thus it is critical that the Court define at the outset what is and is not at stake in the present proceeding. This case is not about the moral acceptability of promoting the symbols or propaganda of Nazism. Most would agree that such acts are profoundly offensive. By any reasonable standard of morality, the Nazis were responsible for one of the worst displays of inhumanity in recorded history. . . . Nor is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to determine by law what forms of speech and conduct are acceptable within its borders. . . .
limits of the sovereignty from which its authority is derived. . . . The extent to which the United States, or any state, honors the judicial decrees of foreign nations is a matter of choice, governed by “the comity of nations.” United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country’s interests.
As discussed previously, the French order’s content and viewpoint-based regulation of the Web pages and auction site on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States. . . . The reason for limiting comity in this area is sound. “The protection to free speech and the press embodied in [the First] amendment would be seriously jeopardized by the entry of foreign judgments granted pursuant to standards deemed appropriate in [another country] but considered antithetical to the protections afforded the press by the U.S. Constitution.” Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court’s obligation to uphold the First Amendment.
Yahoo! seeks a declaration from this Court that the First Amendment precludes enforcement within the United States of a French order intended to regulate the content of its speech over the Internet. . . . Accordingly, the motion for summary judgment will be granted.
On appeal in 2006 the Ninth Circuit Court of Appeals ruled by a vote of eight to three that the California district court had personal jurisdiction over the French defendants, but six judges also held that Yahoo! could not pursue its declaratory judgment action. Three of those six said the declaratory judgment action was not “ripe” for decision, while the other three were the minority that held that the court had no personal jurisdiction.20 The Supreme Court declined to review the decision.21
1. We cannot tell from this opinion why the French court believed it had jurisdiction to adjudicate against Yahoo!, as opposed to Yahoo! France. Look back at the discussion of the Restatement (Third) of Foreign Relations Law immediately before this case. Why might the French court have had jurisdiction over Yahoo! France? Over Yahoo!?
2. If you were sitting on the Ninth Circuit, how would you have decided the jurisdiction question? Consider both the U.S. rule of minimum contacts and the Restatement provision.
3. Notice the Court’s conclusion that the principle of comity is outweighed by its constitutional obligation to uphold the freedom of speech. Is this approach to the requirements of comity consistent with the discussion of comity in Chapter 16?