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An order barring the cross-Atlantic enforcement of a French court’s order against Yahoo Inc. hit rough waters Monday at the 9th U.S. Circuit Court of Appeals. A three-judge panel was clearly uncomfortable with several issues stemming from Yahoo’s decision to challenge — in the United States rather than France — a French judge’s order that the Internet company block French citizens’ access to online auctions of Nazi memorabilia. “All the French court’s saying is, ‘Whatever you do, don’t impact France,’” Senior Judge Warren Ferguson said. “See? That’s called homeland security.” Two French civil rights groups, La Ligue Contre le Racisme et l’Antisemitisme and L’Union des Etudiants Juifs de France, successfully sued Yahoo in French court, obtaining an order that potentially affected the operation of Yahoo’s U.S. Internet servers. Yahoo sued the groups in federal court, winning a ruling from U.S. District Judge Jeremy Fogel that the order is an unenforceable infringement on the company’s First Amendment rights. If Yahoo had failed to comply with the order, it could have faced fines of $13,000 a day. Yahoo has removed Nazi materials from its servers based in France. The First Amendment was only a secondary player at arguments Monday. For the most part, they centered on whether a cease-and-desist letter and subsequent service of process through U.S. marshals in the Northern District created a forum for Yahoo to challenge the order in Silicon Valley, rather than France. Both the letter and the service of process came prior to the French court’s decision. A lawyer for the two groups, Richard Jones of Coudert Brothers, said Yahoo engaged in international forum shopping and that no effort to enforce the French order was ever made. “Our position is that the exercise of legal right should not be penalized by making it the basis of a lawsuit in a foreign country,” Jones said. O’Melveny & Myers partner Robert Vanderet said jurisdiction was proper here because the French order “requires Yahoo to re-engineer its servers in this forum,” and “requires conduct to occur.” Yahoo is located in Sunnyvale. But Senior Judge Melvin Brunetti seemed willing to at least entertain the idea that a service of process invokes U.S. jurisdiction. “They are now interfering with the constitutional rights of that U.S. company,” he asked Jones. “Why doesn’t that start the jurisdictional argument?” “It’s � based on the theoretical claim of a future challenge to rights,” Jones replied. The meatier legal argument — whether a foreign government can restrict the speech of a U.S. subject whose speech is published simultaneously in the United States and abroad — has captured international attention. The jurisdictional issue, important though it may be, may give the panel a way out of a case it seemed to struggle with. “I don’t understand how we analyze this,” Brunetti asked Jones at one point. “[Yahoo's servers] are not doing anything at all to you. They’re just sitting in the United States.” On this point, the panel seemed divided. Ferguson seemed to lean toward deference to the French court, Brunetti was skeptical, and Judge A. Wallace Tashima offered few clues to his position. Unusually quiet for an oral argument, Tashima did indicate he thought it didn’t matter where the servers were located. “They could be in India!” he exclaimed at one point. But the location of the servers did seem important to Brunetti, as it is to the dozen public interest groups that joined to file an amicus curiae brief in the case. “If French law can be enforced here, Yahoo could likewise be required to block access to information that ‘sabotages national unity’ in China, undermines ‘religious harmony and public morals’ in Singapore, offends ‘the social, cultural, political, media, economic and religious values’ of Saudi Arabia, fosters ‘pro-Israeli speech’ in Syria, facilitates viewing unrated or inappropriately rated Web sites in Australia, or makes available information ‘offensive to public morality’ in Italy — just to name a few examples,” the groups wrote. “Under such a regime, U.S. courts would become vehicles for enforcing foreign speech restrictions on U.S. speakers.” Brunetti picked up on that argument. “Can each government impose restrictions on every other country relative to their domestic servers?” Brunetti asked. But Jones said at one point that upholding Fogel’s order would prevent the vindication of rights abroad, “and how can that not be offensive to the sovereignty of France?” In order to comply with the French order without removing the offensive auctions from its U.S. servers, Yahoo would have to block French users from accessing certain Web pages. That proposition is dubious, according to experts who have commented on the case. A check of the Yahoo auction site Monday showed several Nazi coins and stamps were available for bidding, along with a “rare” edition of Adolf Hitler’s Mein Kampf. Yahoo’s decision to defend itself by going on the offensive and invoking its constitutional rights in a U.S. court, rather than appeal the French order, also caused the judges no small amount of consternation. “For some reason you abandoned that appeal,” Ferguson said. “And now you’re coming to America and saying ‘Help me.’” By the end of the argument, even Brunetti seemed to be searching for a way out. “Why isn’t this an [international] treaty issue?” he asked.

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