Law, Business and Society 11th Edition by Tony McAdams

تمرين 17

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, "Yahooi'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. Yahooi's regional sites use the local region's primary language, target the local citizenry, and operate under local laws.
Yahoo! provides a variety of means by which people from all over the world can communicate and interact with one another over the Internet-As relevant here, Yahooi's auction site allows anyone to post an item for sale and solicit bids from any computer user from around the globe. Yahoo! records when a posting is made and after the requisite time period lapses sends an e-mail notification to the highest bidder and seller with their respective contact information. Yahoo! is never a party to a transaction, and the buyer and seller are responsible for arranging privately for payment and shipment of goods. Yahoo! monitors the transaction through limited regulation by prohibiting particular items from being sold (such as stolen goods, body parts, prescription and illegal drugs, weapons, and goods violating U.S. copyright laws or the Iranian and Cuban embargos) Yahoo! informs auction sellers that they must comply with Yahooi's policies and may not offer items to buyers in jurisdictions in which the sale of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the content of each posting, and individuals are able to post, and have in fact posted, highly of fensive matter, including Nazi-related propaganda and Third Reich memorabilia, on Yahooi's auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahooi's Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third Reich-related goods through its auction services violates French law. LICRA threatened to take legal action unless Yahoo! took steps to prevent such sales within eight days. Defendants subsequently utilized the United States Marshal's Office to serve Yahoo! with process in California and filed a civil complaint against Yahoo! in the Tribunal de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1,000 Nazi and Third Reich-related objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of Zion (an infamous anti- Semitic report produced by the Czarist secret police in the early 1900s), and purported "evidence" that the gas chambers of the Holocaust did not exist, were being offered for sale on Yahoo.com's auction site. Because any French citizen is able to access these materials on Yahoo.com directly or through a link on Yahoo.fr, the French Court concluded that the Yahoo.com auction site violates Section R645-1 of the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. On May 20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate French citizens' access to any material on the Yahoo.com auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to Web pages on Yahoo, com displaying text, extracts, or quotations from Mein Kampf and Protocol of the Elders of Zion;(3) post a warning to French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing material prohibited by Section R645-1 of the French Criminal Code, and that such viewing of the prohibited material may result in legal action against the Internet user; (4) remove from all browser directories accessible in the French Republic index headings entitled "negationists" and from all hypertext links the equation of "negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each day that it fails to comply with the order …..
The French Court also provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's Office to serve Yahoo! in California with the French Order.
Yahoo! subsequently posted the required warning and prohibited postings in violation of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr. Yahoo! also amended the auction policy ofYahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion.
Notwithstanding these actions, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order....
Yahoo! claims that because it lacks the technology to block French citizens from accessing the Yahoo.com auction site to view materials which violate the French order or from accessing other Nazi-based content of websites on Yahoo, com, it cannot comply with the French order without banning Nazi-related material from Yahoo.com altogether. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in this Court seeking a declaratory judgment that the French Court's orders are neither cognizable nor enforceable under the laws of the United States.
Defendants immediately moved to dismiss on the basis that this Court lacks personal jurisdiction over them. That motion was denied....
II. OVERVIEW
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….
What is at issue here is whether it is consistent with the Constitution and laws of the United States for another nation to regulate speech by a United States resident within the United States on the basis that such speech can be accessed by Internet users in that nation. In a world in which ideas and information transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on freedom of the press.
The French order prohibits the sale or display of items based on their association with a particular political organization and bans the display of websites based on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could not make such an order. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech absent a compelling governmental interest, such as averting a clear and present danger of imminent violence.
Comity
No legal judgment has any effect, of its own force, beyond the 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.
CONCLUSION
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.
AFTERWORD
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. The Supreme Court declined to review the decision.
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?