Santa Clara High Technology Law Journal
Volume 19 | Issue 2 Article 11
January 2003
Yahoo, Inc. v. La Ligue Contra Le Racisme et
L'Antisemitism: Court Refuses to Enforce French
Order Attempting to Regulate Speech Occurring
Simulaneously in the U.S. and in France
Evan Scheffel
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Recommended Citation
Evan Scheffel, Yahoo, Inc. v. La Ligue Contra Le Racisme et L'Antisemitism: Court Refuses to Enforce French Order Attempting to Regulate
Speech Occurring Simulaneously in the U.S. and in France, 19 Santa Clara High Tech. L.J. 549 (2002).
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YAHOO., INC. V. LA LIGUE CONTRA LE RA CISME
ETL 'ANTISEMITISM:
COURT REFUSES TO ENFORCE FRENCH ORDER
ATTEMPTING TO REGULATE SPEECH
OCCURRING SIMULTANEOUSLY IN THE U.S.
AND IN FRANCE
Evan Scheffelt
What makes this case uniquely challenging is that the Internet in
effect allows one to speak in more than one place at the same time.
Although France has the sovereign right to regulate what speech is
permissible in France, this Court may not enforce a foreign order
that violates the protections of the United States Constitution by
chilling Iprotected speech that occurs simultaneously within our
borders.
1. INTRODUCTION
In this landmark case, the United States District Court of
California held that the enforcement of a French order prohibiting the
sale or display of Nazi propaganda and artifacts through the use of a
Web site owned by the U.S.-based Internet service provider Yahoo!,
Inc. ("Yahoo!") violated the First Amendment. 2 The court remarked
that this case presented a unique context for the application of free
speech principles given the simultaneous occurrence of speech in
t Lecturer, Department of Business Law, California State University, Northridge. The
author gratefully acknowledges Lisa A. Gallo, Esq. for her editorial contribution.
1. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d
1181, 1192 (N.D. Cal. 2001) (emphasizing the significance of its decision and impact on future
cases involving First Amendment issues in the cyberspace context).
2. Id. at 1194. Yahoo!, Inc., a Delaware corporation, is an Internet service provider
operating various Web sites from its principal place of business located in California. Id. at
1183.
550 COMPUTER & HIGH TECHNOLOGYLA WJOURNAL [Vol. 19
3
different countries through the use of the Internet.
In reaching its conclusion, the court relied on well-settled First
Amendment law to declare that while France could regulate speech
occurring in France consistent with its cultural and social values, it
could not regulate speech that impermissibly violates the First
Amendment by imposing content or viewpoint-based regulations on
speech that also occurs within U.S. borders.4 On this basis, the court
refused to enforce the French order attempting to regulate speech-
however offensive--occurring in the United States, despite its
simultaneous occurrence in France. 5
The court carefully explained that its decision did not involve a
determination of the moral acceptability of the speech because of the
sensitivities implicated in the decision of whether to enforce another
nation's orders, particularly given the repugnant nature of the speech
at issue.6 In fact, the court showed great respect towards France's
effort to provide a mechanism to quash such speech in light of the
horrific suffering inflicted by those espousing Nazi views.7 However,
the court stated that while honorable, such efforts effectively imposed
content-based regulations which, on balance, are overridden by the
8
free speech protections built into the First Amendment.
This Case Note examines the court's reasoning for refusing to
enforce the French order prohibiting Yahoo! from selling or
displaying Nazi related propaganda and artifacts on and through the
use of its Web site.
II. FACTUAL AND PROCEDURAL BACKGROUND
Although Yahoo! specifically targets certain Web sites to
Internet users residing in specific regions, any of Yahoo!'s Web sites
can be accessed by users virtually worldwide. 9 For example, Web
pages that are located on Yahoo!'s yahoo.com Uniform Resource
Locator (URL) are written in English and target U.S. residents, while
Web pages that are located on its yahoo.fr URL are written in French
and target French residents.' 0 Although Yahoo! provides many
3. Id. at 1192.
4. See id.at 1189-91.
5. Id.
6. Id. at 1186-87.
7. Yahoo!, 169 F. Supp. 2d at 1186.
8. Id. at 1187.
9. Id. at 1183.
10. Id.
2003] YAHOO! V. LA LIGUE CONTRA LE RACISME
Internet-related services, its automated auction site is the subject of
the issues that are raised in the instant action.
Any user can post an item for sale on the auction site and can
solicit bids from any other user irrespective of location.1" Yahoo! is
only responsible for providing an avenue for the exchange of
identification, payment, and shipping information to both the highest
bidder and the seller.' 2 The buyer and seller, rather than Yahoo!, are
solely responsible for the completion of the transaction.13 Other than
prohibiting users from selling certain illegal items (e.g., body parts
and illegal drugs) and informing users that they cannot sell items to
buyers in jurisdictions where the sale of such items violates that
jurisdiction's laws, Yahoo! does not actively regulate the auction site
or the content posted.14 As a consequence, users have posted, and
continue to post, items that many may consider highly offensive,
including the Nazi related items at issue in this action.' 5 In this case,
the items that were posted included Nazi and Third Reich related
goods. 16
In April of 2000, La Ligue Contre Le Racisme Et
l'Antisemitisme and L'Union Des Etudiants Juifs De France
(collectively "LICRA") sent a "cease and desist" letter to Yahoo! at
its California headquarters, in which LICRA requested that Yahoo!
refrain from selling Nazi and Third Reich related items on and
through its Web-based auction site.' 7 When Yahoo! failed to comply
with LICRA's request, LICRA filed a civil lawsuit against Yahoo! in
the French court. 18
On May 22, 2000, the French court determined that Yahoo!'s
yahoo.com Web site, which offered for sale certain items of Nazi
propaganda and artifacts, violated a French criminal code provision
which prohibited the display or sale of such items. 9 Having further
determined that yahoo.com was either directly accessible to French
citizens or accessible through Yahoo!'s yahoo.fr Web site, the French
11. Id. at 1184.
12. Id.
13. Yahoo!, 169 F. Supp. 2d at 1184,
14. Id.
15. Id.
16. Id.
17. Id. LICRA is French non-profit organization that is designed to combat anti-Semitism
and Nazi recidivism. Id. at 1183.
18. Id. at 1184. The French court is known as the Tribunal de Grande Instance de Paris.
Id.
19. Yahoo!, 169 F. Supp. 2d at 1184.
552 COMPUTER & HIGH TECHNOLOGY LA WJOURNAL [Vol. 19
court issued to Yahoo! the following four orders for immediate
compliance therewith to avoid the imposition of daily monetary
sanctions:
(1) prevent all French citizens from accessing the yahoo.com
auction site (either directly or through yahoo.fr) which sells the
prohibited items; (2) prevent all French citizens from accessing
any yahoo.corn website referencing or quoting certain publications
which promote or glorify Nazism; (3) post on the yahoo.fr site a
warning advising that the viewing of certain web pages on
yahoo.com is prohibited by the French criminal code and may
result in criminal penalties; and (4) delete from all 2browser
0
directories and hyperlinks headings entitled "negationists."
Significantly, the French court further ordered that Yahoo! "take
all necessary measures to dissuade and render impossible any access
via Yahoo.com to the Nazi artifact auction service and to any other
site or service that may be construed as constituting an apology for
Nazism or a contesting of Nazi crimes.",2' At Yahoo!'s request, the
French court reconsidered the technological feasibility of compliance
with the May 22 order and on November 20, 2000, on the basis of
"expert opinion," reaffirmed its order.
Yahoo! subsequently attempted to implement measures to
comply with the French court's order.2 3 Specifically, Yahoo! posted
the required warnings and prohibited from the yahoo.fr Web site all
displays which violated the French criminal code, except for a few
auction items that appear to violate the code.24 Yahoo! also amended
its auction policy to prohibit individuals from auctioning specified
hateful or violent materials or publications2 5 Notwithstanding these
measures, Yahoo! had not implemented any action to prevent access 26
to other Web sites which arguably violated the French order.
Yahoo! claimed that it could not fully comply with the French order
because it simply did not have the technology to block French citizens
from accessing yahoo.com, or banning French citizens from accessing
Nazi-related matter on yahoo.corn without banning this material
altogether would have the effect of violating Yahoo!'s First
20. Id. at 1184-85.
21. Id. at 1185.
22. Id.
23. Id.
24. Id.
25. Yahoo!, 169 F. Supp. 2d 1185.
26. Id.
2003] YAHOO! V. LA LIGUE CONTRA LE RACISME
27
Amendment rights.
Accordingly, Yahoo! filed an action in a United States court
seeking declaratory relief from the French court's order on the basis
that the order (in its entirety) was not enforceable under the U.S.
Constitution.2 8 Yahoo! subsequently filed a motion for summary
judgment.2 9
III. HOLDING, RATIONALE AND DISCUSSION
A. The CourtDismissedLICRA 's Contentions That the
Doctrines ofAbstention and Comity Preclude the Courtfrom
Reaching the Merits of the Action
In its Opposition to Yahoo!'s Motion for Summary Judgment,
LICRA argued that the French order should have remained
undisturbed based on the application of the principles of abstention
and comity.30 Specifically, LICRA argued that Yahoo!'s initiation of
a declaratory relief action in the United States was a classic example
of international forum-shopping in an effort to obtain a more
favorable result. 3 1 Similarly, LICRA argued that the U.S.
Constitution required the court
32
to give full faith and credit to the order
issued by the French court.
As to LICRA's abstention argument, the court stated that LICRA
did not establish a sufficient basis for which it should refrain from
issuing an opinion because Yahoo! 's suit for declaratory relief did not
attempt to re-litigate or disturb the French court's order or
determination that Yahoo!'s speech in France violated French law.33
27. Id. at 1185-86.
28. Id. at 1186. LICRA initially filed a motion to dismiss on the basis that the U.S. court
lacked personal jurisdiction. Id. See also Yahoo!, Inc. v. La Ligue Contre Le Racisme et
L'Antisemitisme, 145 F. Supp. 2d 1168 (N.D. Cal. 2001). The court denied LICRA's motion
and refused to certify its jurisdiction determination for interlocutory appeal until after the
disposition of Yahoo!'s motion for summary judgment. Yahoo!, 169 F. Supp. 2d at 1186.
29. Yahoo!, 169 F. Supp. 2d at 1186. In addition to opposing the motion on its merits,
LICRA also filed a motion under Federal Rule of Civil Procedure 56(f) to postpone the
disposition of Yahoo!'s motion pending the completion of further discovery on the issue of the
technological feasibility of compliance with the French court's order. Id. at 1193. The court
denied LICRA's Rule 56(f) motion reasoning that the technological feasibility of compliance is
immaterial to the disposition of Yahoo!'s motion because enforcement of the French order
depended on its constitutionality under U.S. law. Id. at 1193-94.
30. See id. at 1191-93.
31. Id. at 1191.
32. Id. at 1192.
33. Id., see infra p. 1191 and note 10.
554 COMPUTER & HIGH TECHNOLOGY LA WJOURNAL [Vol. 19
Rather, the court noted that Yahoo!'s declaratory relief action
attempted to resolve whether the French order was enforceable in the
United States without violating the free speech protections afforded
by the First Amendment.3 4 The facts 35
simply did not substantiate
LICRA's forum-shopping argument.
With regard to LICRA's comity argument, the court explained
that U.S. courts readily give great deference to foreign orders except
to the extent that such orders violate the U.S. Constitution, laws, or
policy. 36 As applied in this instance, the court stated that since the
French order imposed content-based regulation of non-violent (albeit
offensive) speech appearing on Yahoo!'s Web pages and auction site,
enforcement would have violated the First Amendment.3 7 The court
further explained that given the lack of international legislation
relating to speech on the Internet, the court's obligations to uphold
First Amendment protections outweighed its discretion to apply
38
comity.
B. The Court Determined That the French Order Createdan
Actual Controversy
LICRA argued that for several reasons, Yahoo!'s action did not
present an "actual controversy," which is a prerequisite to receiving39
declaratory relief pursuant to the Declaratory Judgment Act.
LICRA first argued that Yahoo! could possibly prevail on its appeal
of the initial order of May 22 or that the French court might conclude
that Yahoo! substantially complied with its order. 40 Alternatively,
LICRA argued that it may elect not to pursue the lengthy and
complicated penalty phase of the litigation and that there was no order
to enforce in the U.S. until after completion of the penalty phase.4
LICRA then argued that it did not intend to enforce the French order
against Yahoo! in the United States because it appeared that Yahoo!'s
34. Id. at 1191-92.
35. Yahoo!, 169 F. Supp. 2d at 1192.
36. Id.
37. Id. at 1192-93.
38. Id. at 1193.
39. Id. at 1188. The Declaratory Judgment Act allows a federal court to pre-determine
potential defendants' legal rights and obligations provided an actual controversy exists between
the parties. Id. at 1187 (citing 28 U.S.C. 2201). The party seeking declaratory relief must prove
that the actual controversy is imminent and more than a possibility. Id. (quoting Garcia v.
Brownell, 236 F.2d 356, 358 (9th Cir. 1956), cerl denied).
40. Id. at 1188.
41. Yahoo!, 169 F. Supp. 2d at 1188.
2003] YAHOO! V. LA LIGUE CONTRA LE RACISME
revised policies and removal of certain offensive material constituted
substantial compliance with the French order.42
The court concluded that the facts did not support LICRA's
arguments suggesting that no actual controversy existed and that the
threat to Yahoo!'s constitutional rights was real and immediate.43 As
to LICRA's first argument, the court noted that Yahoo! had
withdrawn its appeal of the May 22 order.44 The court additionally
noted that in its November 20 order, which Yahoo! did not appeal, the
French court held that Yahoo! had the technology to comply with the
May 22 order and that it faced a daily fine of $13,000 for non-
compliance of that order.45
Additionally, the court was not persuaded by LICRA's position
that there was no order to enforce in the U.S. because the penalty
phase had not yet occurred.4 6 The court determined that an actual
controversy existed unless or until the French court absolved Yahoo!
of any potential for the imposition of a daily penalty, which it could
have applied retroactively, or it could have withdrawn its order
altogether.47
The court concluded that LICRA's determination that Yahoo!
substantially complied with the French order by revising its policies
and removing certain offensive material was immaterial.48
Significantly, the French court had not found Yahoo! in compliance
with its order nor had LICRA requested the French court to make
such a finding. 49 The court noted that the "the fact that Yahoo! does
not know whether its efforts to date have met the French court's
mandate is the precise harm against which the Declaratory Judgment
Act is designed to protect." 50
C. The Court Determinedthat the French Order Createda Real
and Immediate Threat to Yahoo! 's FirstAmendment Rights
LICRA presented two alternative grounds, both of which the
court rejected, in support of its contention that Yahoo!'s declaratory
relief action did not present a real and immediate threat. First, rather
42. Id.
43. Id.
44. Id.
45. Id.
46. Id.
47. Yahoo!, 169 F. Supp. 2d at 1188-89.
48. Id. at 1189.
49. Id.
50. Id.
556 COMPUTER & HIGH TECHNOLOGY LAWJOURNAL [Vol. 19
than arguing that the French order could have been enforced in the
United States in a manner consistent with the First Amendment,
LICRA argued that no real and immediate threat existed because the
French court had not yet imposed a penalty on Yahoo! for its failure
to comply with the French order.5'
In support of this contention, LICRA cited the holding in
InternationalSociety for Krishna Consciousness of California,Inc. v.
City of Los Angeles ("Krishna") as analogous to the instant facts.52 In
Krishna, the court concluded that a declaratory relief action seeking a
determination of the constitutionality of a proposed resolution that
arguably limited speech was unripe because the resolution had not
been enacted at the time of the action.53 The Yahoo! court stated that
the Krishna decision was inapposite because it was distinguishable on
its facts; in Krishna, the resolution at issue had no legal effect, while
the French order at issue was indisputably valid and enforceable
(albeit in France) 4
Second, LICRA argued that since it did not presently intend to
seek enforcement of the French order in the United States, there was 55
no real and immediate threat to Yahoo!'s First Amendment rights.
In support of this contention, LICRA cited the holding in Salvation
Army v. Department of Community Affairs of the State of New
Jersey.56 In Salvation Army, a religious group claimed that, despite
being informally granted exemptions by the state of New Jersey from
a statute which purportedly interfered with the free exercise of
religion, the exemptions were not legally binding and therefore
subjected the group to future uncertainty in the enforcement of the
statute, the effect of which would have infringed on the group's First
Amendment rights.57
The Yahoo! court concluded that Salvation Army was also
inapposite for several reasons. First, the French order provides for
retroactive penalties while the New Jersey statute only provides for
prospective penalties.58 Second, the exemptions created in Salvation
51. ld. at 1190.
52. Id. (citing Int'l Soc'y for Krishna Consciousness of California, Inc. v. City of Los
Angeles, 611 F. Supp. 315, 319-20 (C.D. Cal. 1984)).
53. Yahoo!, 169 F. Supp. 2d at 1190.
54. Id.
55. Id.
56. Id. (citing Salvation Army v. Dep't of Cmty. Affairs of the State of New Jersey, 919
F.2d 183 (1990)).
57. Id.
58. Id.
20031 YAHOO! V LA LIGUE CONTRA LE RACISME
Army allowed the group to maintain the status quo rather than to take
affirmative steps to modify existing policies which arguably violated
the First Amendment.59 Third, the requirements set forth in the
French order remained in full force and effect, while in Salvation
Army the perceived threat was merely the possibility that'New Jersey
would withdraw the exemptions. 60 The court further reiterated that
LICRA's commitment to refrain from seeking enforcement of the
order in the United States did not diminish Yahoo!'s real and
immediate threat since LICRA could, at any time, pursue sanctions
against Yahoo! for its "present and ongoing" actions. 6'
Based on the particular mandates contained in the French order,
the court found a real and immediate threat to Yahoo!'s First
Amendment rights. 62 The court concluded that the French order was
tantamount to a content-based regulation, as it required Yahoo! to
refrain from displaying or selling on its Web site any item relating to
Nazism.63 The court stated that the U.S. Constitution prohibits the
regulation of speech based solely on its content, or viewpoint, absent
a showing of a compelling interest, such as the need to avert
imminent danger resulting from inciteful speech.64
In further support of its conclusion, the court stated that, as
written, the French order was impermissibly "general" and
"imprecise," which, by itself, constituted a violation of the First
Amendment. 65 The order required Yahoo! to "take all necessary
measures to dissuade and render impossible any access via
Yahoo.com to the Nazi artifact auction service and to any other site or
service that may be construed as constituting an apology for Nazism
or a contesting of Nazi crimes. 66 The court stated that the phrase
"and to any other site or service that may be construed as constituting
an apology for Nazism or a contesting or Nazi crimes" did not pass
strict scrutiny (as required by the First Amendment) because it did not
describe the prohibited speech with sufficient particularity.67 In
addition, the court stated that the phrases "all necessary measures"
59. Yahoo!, 169 F. Supp. 2d at 1190-91.
60. Id.at 1191.
61. Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967) (internal quotation
omitted)).
62. Id.
63. Id.at 1189.
64. Id.
65. Yahoo!, 169 F. Supp. 2d at 1189.
66. Id.
67. Id. (citing Coates v. City of Cincinnati, 402 U.S. 611 (1971)).
558 COMPUTER & HIGH TECHNOLOGY LA WJOURNAL [Vol. 19
and "render impossible" required Yahoo! to undertake efforts which
would have "chilled," and perhaps even censored, protected speech.68
Having concluded that the French order violated Yahoo!'s First
Amendment rights, the United States District Court of California
stated that such violation-no matter how short in duration-
' 69
constituted "irreparable injury. The court held that although the
French order could regulate speech occurring in France on the basis
of content or viewpoint, the French order could not be enforced
against the same speech occurring simultaneously in the United
States. Enforcement of such an order would impermissibly violate
the First Amendment-even if such speech was considered highly
offensive. 70 Accordingly, the court refused to enforce the French
order prohibiting Yahoo! from displaying or selling Nazi propaganda
and artifacts through the use of its Web site.71
IV. CONCLUSION
Given the global reach of the Internet, which provides an avenue
for wildly divergent cultures and value systems to intersect, this case
presents important and novel issues regarding free speech,
constitutional rights and foreign state sovereignty. Since the facts of
this case involve issues of policy, politics and culture that transcend
the jurisdiction of the courts of the United States, this case may very
well be cited as the progeny of a new breed of free speech cases.
68. Id. (citing Bd. of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569 (1987)).
69. Id. at 1189-90.
70. Id. at 1194.
71. Yahoo!, 169 F. Supp. 2d 1194.
