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Yahoo’s attempt to argue the First Amendment against a court order in France was thwarted by the Ninth Circuit U.S. Court of Appeals on Thursday, but over procedural grounds rather than the Sunnyvale company’s closely watched constitutional argument. The French court had threatened the Internet portal with financial penalties unless it took measures to stop people in France from using Yahoo to view auction listings for Nazi artifacts, or Nazi-apologist Web sites. Yahoo’s French subsidiary Web site has basically cut off such access, but Yahoo’s U.S. site can still be viewed by Internet users in France. The Silicon Valley parent company has argued that restricting the objectionable content from French viewers who go to its U.S. site would be technically difficult and overly restrictive. The case has been watched intently because it deals with unfamiliar legal ground that involves both the global reach of Internet commerce and disparities in different countries’ laws. Lawyers from the American Civil Liberties Union and for the U.S. Chamber of Commerce both filed amicus curiae briefs. “The issue that it presents is, when you have a world in which all the nations are participants in a worldwide network, what standards should be applied?” said Kurt Opsahl, a staff attorney at the San Francisco-based Electronic Frontier Foundation who has followed the case. It was a close call for E. Randol Schoenberg, a lawyer for the French groups, who persuaded the Ninth Circuit to throw out the case, with two arguments that combined for success. At the en banc hearing, he only persuaded three of the 11 judges to agree with his jurisdiction argument, which he’d seen as the focus of the case. But three other judges backed his argument that the case wasn’t ripe enough to be ruled on. Taken together, the six votes were enough to reverse an earlier decision by U.S. District Judge Jeremy Fogel of the Northern District of California. Yahoo was sued in France in 2000 by two groups citing the anti-Nazi laws. Later that year, a French court ordered the Internet portal to restrict access for its French customers � even if it meant reconfiguring its California-based servers � and gave it three months to do so before a daily 100,000 franc penalty would kick in. Yahoo wanted a U.S. judge to declare that the French court’s orders would not be recognizable or enforceable here, and at the trial level, it succeeded. The company sued La Ligue Contre Le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France, and Fogel ruled that the First Amendment would preclude enforcement of the foreign orders in the U.S. Among the Ninth Circuit judges, the case appears to have been hotly debated. On Thursday, three of them penned separate concurring opinions, and another five signed onto a partial dissent bemoaning the outcome. Even the six who agreed that the case should be dismissed without prejudice split on the reasoning. DEVIL IN THE DETAILS Three judges said the case was too premature and abstract. To prevent enforcement in the U.S., a foreign judgment must be “repugnant to public policy,” and the case isn’t in any shape to tell if the French orders meet that requirement, Judge William Fletcher wrote. “Yahoo has chosen not to ask the French court” whether unrelated changes in its policies � like prohibiting auction listings that offer items associated with primarily violent or hateful groups � have indirectly satisfied the foreign order, Fletcher wrote. “Instead, it has chosen to come home to ask for a declaratory judgment that the French court’s orders � whatever they may or may not require, and whatever First Amendment questions they may or may not present � are unenforceable in the United States.” While it’s possible that Yahoo could be forced to restrict its access to its American users, that possibility is, at this point, “highly speculative,” Fletcher wrote, and therefore not urgent enough. Combined with the uncertainty of the legal question, Fletcher concluded, the case couldn’t overcome the ripeness hurdle. (If the French court’s orders more explicitly required Yahoo to block access to its U.S. users, he made clear that “this would be a different and much easier case.”) The three other judges that agreed the case should be thrown out each wrote a separate concurrence concluding that Yahoo shouldn’t have been able to sue the French defendant groups in California. “The Supreme Court has never approved such a radical extension of personal jurisdiction,” Judge Diarmuid O’Scannlain wrote in one of them, adding that the majority had essentially held that a foreign party subjects itself to a suit in the U.S. simply “by litigating a bona fide claim in a foreign court and receiving a favorable judgment.” The five judges who partially dissented all but accused the majority of punting. “If the majority’s application of the First Amendment in the global Internet context in this case is to become the standard � then it should be adopted (or not) after full consideration of the constitutional merits, not as a justification for avoiding the issue altogether as not ripe,” Judge Raymond Fisher wrote. If some judges feel Yahoo may be able to follow the foreign orders without restricting its American customers, the trial court can resolve those questions with more fact-finding, Fisher wrote. But that aside, Fisher said, it’s clear the orders are too vague and therefore unconstitutional on their face. “Legions of cases permit First Amendment challenges to governmental actions or decrees that on their face are vague, overbroad and threaten to chill protected speech,” Fisher wrote. “Indeed, the sweeping [order] here presents just such a paradigmatic case.” A statement from Yahoo did not say if the company would appeal to the U.S. Supreme Court. But the company said it was pleased that the ruling indicated U.S. courts can have jurisdiction if a foreign plaintiff tries to enforce foreign orders of “censor-ship” on U.S. Web sites. “Based on today’s ruling, Yahoo believes that free speech rights would prevail,” the statement said. Schoenberg, who represented the French groups at oral argument, emphasized that such an outcome wouldn’t be assured. “I’m willing to bet that not every circuit will agree with the ruling on personal jurisdiction.” The case is Yahoo v. La Ligue Contre Le Racisme et L’Antisemitisme, 06 C.D.O.S. 360.

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