D.  U.S. Courts Asked To Uphold   

French Restrictions on Yahoo! 

 

      The U.S. Court of Appeals for the Ninth Circuit has been asked to decide whether French anti-discrimination law can be applied to restrict freedom of speech on U.S.-based Web sites to the extent they are accessible in France.  A Paris court ruled in 2000 that the Yahoo! U.S. auction Web site violated the French penal code because its users offered for sale certain Nazi artifacts, including objects, relics, insignia, emblems, and flags.  The order also applied to personal Web pages hosted by Yahoo! that quoted books such as Adolph Hitler’s Mein Kampf and The Protocol of the Elders of Zion. 

      The French court ordered Yahoo! to block access to Nazi merchandise by French citizens “and to any other site or service constituting an apology for Nazism or a contesting of Nazi crimes,” or to pay a fine of 100,000 Francs per day.  The Yahoo! case presents the question whether the global medium of the Internet should be governed by myriad censorship laws from around the world. 

      In specific terms, the order of the Paris county court directed Yahoo! to: (1) re-engineer its content servers in the United States and elsewhere to enable them to recognize French Internet protocol (IP) addresses and block access to Nazi material by end users assigned such IP addresses; (2) require end users with “ambiguous” IP addresses to provide Yahoo! with a declaration of nationality when they arrive at Yahoo!’s home page or when they initiate any search using the word “Nazi”; and (3) implement these changes within three months or face a penalty of 100,000 Francs (approximately $13,300) for each day of non-compliance.  The French court order also provided that the penalties assessed against Yahoo!, Inc. may not be collected from Yahoo! France, the French subsidiary. 

      In other words, if the plaintiff groups want to enforce the judgment, they would need to persuade a U.S. court to recognize it and apply it against Yahoo!’s U.S. service.  However, judgments of foreign courts are not entitled to automatic recognition or enforcement in American courts.  Whether a U.S. court will honor a foreign judgment is determined by principles of international respect and cooperation.  Among these is the rule that a court need not enforce a foreign judgment if to do so will offend the public policy of the nation where the court has jurisdiction. 

      A classic example of a foreign judgment that will not be enforced on public policy grounds is a ruling that unconstitutionally impairs individual rights of personal liberty.  This includes a judgment based on laws or procedures that do not comport with fundamental First Amendment principles.  Under these principles, U.S. courts have refused to enforce libel judgments based on foreign law because of the strict First Amendment limits of American libel law.

 

Yahoo! Takes the Offensive

      After the French court reaffirmed its initial order, Yahoo! took preemptive action to block enforcement in the United States.  It filed a declaratory judgment action in the U.S. District Court for the Northern District of California, seeking a ruling that the French judgment is unenforceable because it is inconsistent with U.S. constitutional law and policy.  The judge in Paris had reasoned that requiring Yahoo! “to extend its ban to symbols of Nazism” would satisfy “an ethical and moral imperative shared by all democratic societies.”  However, the question Yahoo! raised in the U.S. forum is whether that “moral imperative” includes censoring disfavored speech.  With the question framed in this way, the district court held that the Yahoo! order could not be enforced in the United States. 

      Judge Jeremy Fogel wrote that “the French order’s content and viewpoint-based regulation of the web pages and auction site of 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.”  Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 169 F. Supp. 2d 1181, 1192 (N.D. Cal. 2001).  “Although France has a sovereign right to regulate what speech is permissible in France,” he reasoned, “this Court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.”  Id. 

      Judge Fogel’s decision was unaffected by the French court’s shaky finding that Yahoo!’s auction site could be “filtered” geographically to block access to forbidden items only to French citizens.  Noting that the foreign order would affect Yahoo!’s actions “in the United States” for how it “configures and operates its auction and Yahoo.com sites,” he found the question of whether Yahoo! “possesses the technology to comply with the rule” to be “immaterial.”  Id. at 1194. 

      Judge Fogel wrote that the French order would require Yahoo! not only to “render it impossible for French citizens to access the proscribed content” but also “to interpret an impermissibly overbroad and vague definition” of what is prohibited.  Accordingly, he found that enforcement of the French order against Yahoo! would be inconsistent with the First Amendment because compliance would involve an impermissible restriction on speech.

      The appeal from Judge Fogel’s decision is pending before the U.S. Court of Appeals for the Ninth Circuit.  The case generally highlights the stark differences among nations in how they value freedom of expression.  The French law prohibiting the mere viewing of Nazi insignia, including its display on such plainly expressive items as books or flags, flies in the face of fundamental principles of free expression. 

      In the United States, the U.S. Supreme Court has held that the most stringent protections of the First Amendment protect marching in Nazi uniforms, displaying the swastika, and even “[d]istributing pamphlets or displaying ... materials which incite or promote hatred against persons of Jewish faith or ancestry, race or religion.”  National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (per curiam).  This is because our constitutional jurisprudence is based on a clear understanding:

 

Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.  Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis and Holmes, JJ., concurring).  As the Supreme Court explained more recently, “[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”  United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000).

 

      Constitutional law stringently protects such “low value” speech not because of a belief that “one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable.”  Rather, the First Amendment protects such speech “precisely so that opinions and judgments, including esthetic and moral judgments about art and literature [and politics], can be formed, tested, and expressed.”  In our system, “these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”  Id. at  818.

 

What Is at Stake

      The Yahoo! case is not just about the differences between U.S. and French law regarding freedom of expression.  At least 59 nations formally restrict freedom of expression online.  Restrictions range from a flat ban on publishing news without prior approval from Communist Party officials in China, and Saudi Arabia’s prohibition of any speech contrary to the state or its system, to Italy’s ban on publications “offensive to public morality” and Sweden’s restrictions on “illegal descriptions of violence” or “racial agitation.”  An adverse decision would establish a legal framework wherein all Web sites on the global Internet potentially are subject to the laws of all other nations, regardless of the extent to which such a requirement conflicts with the law of the place where the speakers are located. 

      Any finding that the French order may be enforced in the United States would create an international legal framework in which any nation would be able to enforce its legal and cultural “local community standards” on speakers in all other nations.  In such a regime, Internet service providers (ISPs) and content providers would have no practical choice but to restrict their speech to the lowest common denominator to avoid potentially crushing liability.  It could transform the World Wide Web from a global medium of open communication to one in which only information that satisfies the most restrictive national law is safe from censure.

 

Council of Europe Cybercrime Convention

      The effect of such laws will become more widespread under a proposed side agreement to a European treaty on crime in cyberspace.  The 43-member Council of Europe (CoE) in November 2001 ratified a Convention on Cybercrime, the first international treaty on criminal offenses committed through the use of the Internet and other computer networks.  Although the CoE is comprised of European nations, the United States was one of four non-member signatories to the Convention.

      The main aim of the Convention, according to its preamble, is to “pursue, as a matter of priority, a common criminal policy aimed at the protection of society against cybercrime,” and to take measures such as “adopting appropriate legislation and fostering international co-operation.”  The Convention deals in particular with offenses related to infringements of copyright, computer-related fraud, child pornography, and offenses connected with network security.  It also covers a series of procedural powers such as computer network searches and interception of material. 

      An additional protocol to the Convention would oblige signatories to “adopt legislative and other measures as may be necessary” to criminalize “distributing or otherwise making available racist or xenophobic material to the public through a computer system”; “insulting publicly, through a computer system, persons for the reason that they belong” to an ethnic, racial, national, or religious group; and distributing material “which denied, grossly minimizes, approves, or justifies ... genocide or crimes against humanity.”  It also would require the adoption of laws prohibiting “aiding or abetting the commission of any of the offenses established in accordance with this Protocol, with intent that such offense be committed.”  Draft of the First Additional Protocol of the Convention on Cybercrime Concerning the Criminalisation of Acts of a Racist or Xenophobic Nature Committed Through Computer Systems, Articles 3, 5, 6 & 7 (May 12, 2002). 

      A draft explanatory report makes clear that these provisions are intended to apply to, among other things, the exchange of racist and xenophobic material in Internet chat rooms, or by postings on newsgroups and discussion fora.  The protocol was developed as a side agreement so as not to impede ratification of the main Convention by the United States and other nations that might have a conflict with the new provision.  Although the United States is not expected to sign it, the protocol will exacerbate the problems presented by the French Yahoo! case.

      The adoption of the protocol by CoE members will place added leverage on the United States to go along, but it is pressure that should be resisted.  It may be extremely doubtful that the United States could find a way to comply with the protocol that would survive First Amendment scrutiny in any event, but this country should affirm its commitment to constitutional principles by rejecting the protocol categorically.  Although such measures are vulnerable under American law,  they become less so if we begin to entertain the notion that it is legitimate for governments to dictate matters of individual conscience.  As Supreme Court Justice Robert Jackson warned,  “the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”  West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641 (1943).

--Robert Corn-Revere

 

The author co-authored an amicus brief in Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, No. 01-17424 (9th Cir. filed May 6, 2002).  The Media Institute was one of 14 amici participating in the brief.