It's going to be harder for Yahoo to convince a U.S. court to get involved with its dispute over Nazi memorabilia auctions being seen in France. That's thanks to last week’s 2-1 court ruling holding a lower U.S. court had no legitimate jurisdiction in a case involving French law.
The three-judge panel of the Ninth Circuit Court of Appeals ruled that the case involved jurisdiction and not the First Amendment. "The court is saying ‘Look, you can't blame these French organizations for suing Yahoo,’" Chicago-based attorney J.D. Obenberger told AVNOnline.com about the Ninth Circuit Court panel finding. "Countries have a right to enact laws, Yahoo violated [French] law, and you can't blame [the French] for that.
Yahoo sued in 2002, with a U.S. federal judge ruling that a French court order blocking that country’s Netizens from seeing the Nazi memorabilia auctions violated the U.S. Constitution's First Amendment. The French court had ordered the auctions blocked under a French law barring the display or sale of racist material in that country.
"Yahoo's seeking declaratory judgment in advance but these French organizations haven't done anything wrong," Obenberger said. "It's got to be some kind of wrongful conduct on their part. All they've asked is pretty please with sugar on it please take your sites down… The law changes if the French organizations take it to the U.S. and seek judgment in the U.S. When that happens, the First Amendment would have an appropriate role."
The Union of Jewish Students and the International Anti-Racism and Anti-Semitism League sued in 2000 to get Yahoo to block French Netizens from the Nazi memorabilia auctions. A French court agreed with the two groups and handed down the order, and Yahoo moved the auctions from its French subsidiary – but kept them on its master portal, and sued the two groups.
"Jurisdiction may be obtained, and the First Amendment claim heard, once LICRA and UEJF ask a U.S. district court to enforce the French judgment," wrote Judge Warren T. Ferguson for the Ninth Circuit Court panel. "As of yet, the organizations have declined to do so….
"France is within its rights as a sovereign nation to enact hate speech laws against the distribution of Nazi propaganda in response to its terrible experience with Nazi forces during World War II," Ferguson continued. "Similarly, [the Union and the League] are within their rights to bring suit in France against Yahoo for violation of French speech law. The only adverse consequence experienced by Yahoo as a result of the acts with which we are concerned is that Yahoo! must wait for [the two groups] to come to the United States to enforce the French judgment before it is able to raise its First Amendment claim."
"The headline," Obenberger said wryly, "should read, 'Yahoo Jumps The Gun.'"
Judge Melvin Brunetti dissented, writing that the two groups aimed at a California-based company, sent a letter threatening a lawsuit in France, "brought such suit by serving Yahoo with process in California," and asked for and got the French court order that Yahoo yank the Nazi memorabilia auctions out of French Net view. Brunetti also wrote that the two groups' lack of direct bid to enforce the French order against Yahoo in the U.S. itself "is unavailing.
"The… order served on Yahoo indeed demanded that Yahoo immediately comply with French law by removing Nazi materials or rendering them inaccessible to French users
or face significant daily fines; it is unimportant that [the Union and the League] have as yet refrained from taking the additional steps necessary to collect the extensive and accruing fines against Yahoo," he continued. "Because I believe that [the Union and the League] expressly aimed their actions at Yahoo in California seeking to cause a particular effect, I conclude that this factor weighs in Yahoo’s favor."
