YAHOO!, INC., a Delaware corporation, Plaintiff,
v.
LA LIGUE CONTRE LE RACISME ET L'ANTISEMITISME, a French
association, et al.,
Defendants.
No. C-00-21275 JF.
Nov. 7, 2001.
*1183
Michael Traynor, Benjamin
K. Riley, Karen
Daly, Laura
Pirri, Cooley Godward LLP, San Francisco, CA,
Neil Jahss, Robert C. Vanderet, O' Melveny & Myers, Los Angeles, CA, for
Plaintiff.
Ronald
S. Katz, Coudert Brothers, San Francisco, CA, Richard
A. Jones, San Jose, CA, for Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
FOGEL, District Judge.
Plaintiff
moves for summary judgment. Defendants
oppose the motion. The Court has read
the moving and responding papers and has considered the oral arguments of
counsel presented on September 24, 2001.
For the reasons set forth below, the motion will be granted.
I. PROCEDURAL HISTORY
Defendants
La Ligue Contre Le Racisme Et l'Antisemitisme ("LICRA") and L'Union
Des Etudiants Juifs De France, citizens of France, are non-profit organizations
dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc. ("Yahoo!")
is a corporation organized under the laws of Delaware with its principal place
of business in Santa Clara, California.
Yahoo! is an Internet [FN1] service
provider that operates various Internet websites and services that any computer
user can access at the Uniform Resource Locator ("URL") http://www.yahoo.com.
Yahoo! services ending in the suffix, ".com," without an associated
country code as a prefix or extension (collectively, "Yahoo!'s U.S.
Services") use the English language and target users who are residents of,
utilize servers based in and operate under the laws of the United States. Yahoo! subsidiary corporations operate
regional Yahoo! sites and services in twenty other nations, including, for
example, Yahoo! France, Yahoo! India, and Yahoo! Spain. Each of these regional web sites contains
the host nation's unique two- letter code as either a prefix or a suffix in its
URL (e.g., Yahoo! France is found at http://www.yahoo.fr
and Yahoo! Korea at http://www.yahoo.kr
). Yahoo!'s regional sites use the local region's primary language, target the
local citizenry, and operate under local laws.
FN1. The
"Internet" and "World Wide Web" are distinct entities, but
for the sake of simplicity, the Court will refer to them collectively as the
"Internet." Generally
speaking, the Internet is a decentralized networking system that links
computers and computer networks around the world. The World Wide Web is a publishing forum
consisting of millions of individual websites that contain a wide variety of
content.
Yahoo!
provides a variety of means by which people from all over the world can
communicate and interact with one another *1184 over the Internet. Examples include an Internet search engine,
e-mail, an automated auction site, personal web page hostings, shopping
services, chat rooms, and a listing of clubs that individuals can create or
join. Any computer user with Internet
access is able to post materials on many of these Yahoo! sites, which in turn
are instantly accessible by anyone who logs on to Yahoo!'s Internet sites. As relevant here, Yahoo!'s auction site
allows anyone to post an item for sale and solicit bids from any computer user
from around the globe. Yahoo! records
when a posting is made and after the requisite time period lapses sends an
e-mail notification to the highest bidder and seller with their respective
contact information. Yahoo! is never a party to a transaction, and the buyer
and seller are responsible for arranging privately for payment and shipment of
goods. Yahoo! monitors the transaction
through limited regulation by prohibiting particular items from being sold
(such as stolen goods, body parts, prescription and illegal drugs, weapons, and
goods violating U.S. copyright laws or the Iranian and Cuban embargos) and by
providing a rating system through which buyers and sellers have their
transactional behavior evaluated for the benefit of future consumers.
Yahoo! informs auction sellers that they must comply with Yahoo!'s
policies and may not offer items to buyers in jurisdictions in which the sale
of such item violates the jurisdiction's applicable laws. Yahoo! does not actively regulate the
content of each posting, and individuals are able to post, and have in fact
posted, highly offensive matter, including Nazi-related propaganda and Third
Reich memorabilia, on Yahoo!'s auction sites.
On
or about April 5, 2000, LICRA sent a "cease and desist" letter to
Yahoo!'s Santa Clara headquarters informing Yahoo! that the sale of Nazi and
Third Reich related goods through its auction services violates French law.
LICRA threatened to take legal action unless Yahoo! took steps to prevent such
sales within eight days. Defendants
subsequently utilized the United States Marshal's Office to serve Yahoo! with
process in California and filed a civil complaint against Yahoo! in the
Tribunal de Grande Instance de Paris (the "French Court").
The
French Court found that approximately 1,000 Nazi and Third Reich related
objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of
Zion (an infamous anti-Semitic report produced by the Czarist secret police
in the early 1900's), and purported "evidence" that the gas chambers
of the Holocaust did not exist were being offered for sale on Yahoo.com's
auction site. Because any French
citizen is able to access these materials on Yahoo.com directly or through a
link on Yahoo.fr, the French Court concluded that
the Yahoo.com auction site violates Section R645-1 of the French Criminal Code,
which prohibits exhibition of Nazi propaganda and artifacts for sale. [FN2] On May 20, 2000,
the French Court entered an order requiring Yahoo! to (1) eliminate French
citizens' access to any material on the Yahoo.com auction site that offers for
sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate French citizens' access to web
pages on Yahoo.com displaying text, extracts, or quotations from Mein Kampf
and Protocol of the Elders of Zion;
(3) post a warning to French citizens on Yahoo.fr that any search
through Yahoo.com may lead to sites containing material prohibited by Section
R645-1 of the French Criminal Code, and that such viewing of the prohibited
material may result in legal action against the Internet user; (4) remove from all browser directories
accessible in the *1185 French Republic index headings entitled
"negationists" and from all hypertext links the equation of
"negationists" under the heading "Holocaust." The order subjects Yahoo! to a penalty of
100,000 Euros for each day that it fails to comply with the order. The order concludes:
FN2. French law also
prohibits purchase or possession of such matter within France.
We order the Company YAHOO! Inc. 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.
High
Court of Paris, May 22, 2000, Interim Court Order No. 00/05308, 00/05309
(translation attested accurate by Isabelle Camus, February 16, 2001). The
French Court set a return date in July 2000 for Yahoo! to demonstrate its
compliance with the order.
Yahoo!
asked the French Court to reconsider the terms of the order, claiming that
although it easily could post the required warning on Yahoo.fr, compliance with
the order's requirements with respect to Yahoo.com was technologically
impossible. The French Court sought
expert opinion on the matter and on November 20, 2000 "reaffirmed"
its order of May 22. The French Court
ordered Yahoo! to comply with the May 22 order within three (3) months or face
a penalty of 100,000 Francs (approximately U.S. $13,300) for each day of non-
compliance. The French Court also
provided that penalties assessed against Yahoo! Inc. may not be collected from Yahoo! France. Defendants again utilized the United States Marshal's
Office to serve Yahoo! in California with the French Order.
Yahoo!
subsequently posted the required warning and prohibited postings in violation
of Section R645-1 of the French Criminal Code from appearing on Yahoo.fr.
Yahoo! also amended the auction policy of Yahoo.com to prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly
associated with groups or individuals known principally for hateful or violent
positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue
stamps and coins are not prohibited under this policy. Expressive media, such as books and films,
may be subject to more permissive standards as determined by Yahoo! in its sole
discretion.
Yahoo
Auction Guidelines
(visited Oct. 23, 2001) <http://
user.auctions.Yahoo.com/html/guidelines.html>. Notwithstanding these
actions, the Yahoo.com auction site still offers certain items for sale (such
as stamps, coins, and a copy of Mein Kampf) which appear to violate the
French Order. [FN3] While Yahoo! has removed the Protocol of the Elders of Zion
from its auction site, it has not prevented access to numerous other sites
which reasonably "may be construed as constituting an apology for Nazism
or a contesting of Nazi crimes." [FN4]
FN3. The Court takes
judicial notice that on October 24, 2001, the key word "nazi" on the
Yahoo.com auction site search engine called up sixty-nine Nazi-related items
for sale, most of which were stamps and coins from the Third Reich. One copy of Mein Kampf was for sale.
FN4. The Court also takes judicial notice that on October 24,
2001, a search on Yahoo.com of "Jewish conspiracy" produced 3,070
sites, the search "Protocols/10 Zion produced 3,560 sites, and the
search" "Holocaust /5 'did not happen,' " produced 821
sites. The search "National
Socialist Party" led to a website of an organization promoting modern day
Nazism.
Yahoo!
claims that because it lacks the technology to block French citizens from
accessing the Yahoo.com auction site to view materials which violate the French
*1186 Order or from accessing other Nazi-based content of websites on
Yahoo.com, it cannot comply with the French order without banning Nazi-related
material from Yahoo.com altogether.
Yahoo! contends that such a ban would infringe impermissibly upon its
rights under the First Amendment to the United States Constitution. Accordingly, Yahoo! filed a complaint in
this Court seeking a declaratory judgment that the French Court's orders are
neither cognizable nor enforceable under the laws of the United States.
Defendants
immediately moved to dismiss on the basis that this Court lacks personal
jurisdiction over them. That motion was
denied. [FN5] Defendants' request that the Court certify
its jurisdictional determination for interlocutory appeal was denied without
prejudice pending the outcome of Yahoo!'s motion for summary judgment.
FN5. See Yahoo!,
Inc.v. La Ligue Contra Le Racisme et L'Antisemitisme,
145 F.Supp.2d 1168 (N.D.Cal.2001).
II. OVERVIEW
As
this Court and others have observed, the instant case presents novel and
important issues arising from the global reach of the Internet. Indeed, the specific facts of this case
implicate issues of policy, politics, and culture that are beyond the purview
of one nation's judiciary. Thus it is
critical that the Court define at the outset what is and is not at stake in the
present proceeding.
This
case is not about the moral acceptability of promoting the symbols or
propaganda of Nazism. Most would agree
that such acts are profoundly offensive.
By any reasonable standard of morality, the Nazis were responsible for
one of the worst displays of inhumanity in recorded history. This Court is acutely mindful of the
emotional pain reminders of the Nazi era cause to Holocaust survivors and
deeply respectful of the motivations of the French Republic in enacting the
underlying statutes and of the defendant organizations in seeking relief under
those statutes. Vigilance is the key to
preventing atrocities such as the Holocaust from occurring again.
Nor
is this case about the right of France or any other nation to determine its own law and social policies. A basic function of a sovereign state is to
determine by law what forms of speech and conduct are acceptable within its
borders. In this instance, as a nation
whose citizens suffered the effects of Nazism in ways that are incomprehensible
to most Americans, France clearly has the right to enact and enforce laws such
as those relied upon by the French Court here. [FN6]
FN6. In particular,
there is no doubt that France may and will continue to ban the purchase and
possession within its borders of Nazi and Third Reich related matter and to
seek criminal sanctions against those who violate the law.
What
is at issue here is whether it is consistent with the Constitution and
laws of the United States for another nation to regulate speech by a United
States resident within the United States on the basis that such speech can be
accessed by Internet users in that nation.
In a world in which ideas and information transcend borders and the
Internet in particular renders the physical distance between speaker and
audience virtually meaningless, the implications of this question go far beyond
the facts of this case. The modern
world is home to widely varied cultures with radically divergent value
systems. There is little doubt that
Internet users in the United States routinely
engage in speech that violates, for example, China's laws against religious
expression, the laws of *1187 various nations against advocacy of gender
equality or homosexuality, or even the United Kingdom's restrictions on freedom
of the press. If the government or
another party in one of these sovereign nations were to seek enforcement of
such laws against Yahoo! or another U.S.-based Internet service provider, what
principles should guide the court's analysis?
The
Court has stated that it must and will decide this case in accordance with the
Constitution and laws of the United States.
It recognizes that in so doing, it necessarily adopts certain value
judgments embedded in those enactments, including the fundamental judgment
expressed in the First Amendment that it is preferable to permit the
non-violent expression of offensive viewpoints rather than to impose
viewpoint-based governmental regulation upon speech. The government and people of France have made a different judgment
based upon their own experience. In
undertaking its inquiry as to the proper application of the laws of the United
States, the Court intends no disrespect for that judgment or for the experience
that has informed it.
III. LEGAL STANDARDS
A
motion for summary judgment should be granted if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law. FED.
R. CIV. P. 56(c); Anderson
v. Liberty Lobby, Inc.,
477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of
informing the Court of the basis for the motion and identifying the portions of
the pleadings, depositions, answers to interrogatories, admissions, or
affidavits that demonstrate the absence of a triable issue of material
fact. Celotex
Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If
the moving party meets this initial burden, the burden shifts to the non-moving
party to present specific facts showing that there is a genuine issue for
trial. FED.
R. CIV. P. 56(e); Celotex,
477 U.S. at 324, 106 S.Ct. 2548. A genuine issue for trial exists if the
non-moving party presents evidence from which a reasonable jury, viewing the
evidence in the light most favorable to that party, could resolve the material
issue in his or her favor. Anderson,
477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202; Barlow
v. Ground,
943 F.2d 1132, 1134-36 (9th Cir.1991).
IV. LEGAL ISSUES
A.
Actual Controversy
The Declaratory Judgment Act
protects potential defendants from multiple actions by providing a means by
which a court declares in one action the rights and obligations of the litigants. 28
U.S.C. § 2201. A declaratory
judgment will not expand a federal court's jurisdiction, but if jurisdiction
exists, litigants have earlier access to federal courts to spare potential defendants from the threat of
impending litigation. Skelly
Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Seattle
Audubon Soc'y v. Moseley,
80 F.3d 1401, 1405 (9th Cir.1996). Declaratory judgment actions are justiciable
only if there is an "actual controversy." 28
U.S.C. § 2201(a). The "actual
controversy" requirement is analyzed in the same manner as the "case
or controversy" standard under Article III of the United States Constitution. Aetna
Life Ins. Co. v. Haworth,
300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937).
The threshold question in any
declaratory action thus is whether "there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the *1188 issuance of a declaratory
judgment." Maryland
Cas. Co. v. Pacific Coal & Oil Co.,
312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); National
Basketball Ass'n v. SDC Basketball Club, Inc.,
815 F.2d 562, 565 (9th Cir.1987). The "[m]ere possibility, even
probability, that a person may in the future be adversely affected by official
acts not yet threatened does not create an 'actual controversy' which is a
prerequisite created by the clear language of the [Declaratory Judgment
Act]...." Garcia
v. Brownell,
236 F.2d 356, 358 (9th Cir.1956) cert. denied,
362
U.S. 963, 80 S.Ct. 880, 4 L.Ed.2d 878 (1960). The party invoking federal jurisdiction
bears the burden of showing that it faces an immediate or actual injury. Rincon
Band of Mission Indians
v. County of San Diego,
495 F.2d 1, 5 (9th Cir.1974), cert. denied,
419
U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974).
1.
Status of the French Order
Defendants contend that the
"actual controversy" requirement is not met in the instant case. They point out that Yahoo! appealed the
French Court's initial order of May 22, 2000, and that a successful appeal
would nullify the order of November 20, 2000 that "reaffirmed" the
May 22 order. They argue that even if
the May 22 order is upheld on appeal, the French court may find that Yahoo! has
substantially complied with the order.
Alternatively, they assert that they themselves may elect not to
initiate the complex process the French Court would use to fix an actual
penalty, and that until that process is completed, there is no order that could
be enforced against Yahoo! in the United States. Finally, Defendants offer declarations to the effect that they
view Yahoo!'s revised policies with respect to its auction site and removal of Protocol
of the Elders of Zion from its host sites as substantial compliance with
the French order and that accordingly they have no present intention of taking
legal action against Yahoo! in the United States.
While
these points are facially appealing and suggest a way for the Court to avoid
deciding the sensitive and controversial issues presented herein, the facts in
the record do not support Defendants' position. First, there are no relevant appellate proceedings presently
pending in France. In its order of November 20, 2000, the French
Court determined that Yahoo! is technologically and legally capable of
complying with the May 22 order and that Yahoo! is subject to a fine of
approximately $13,000 for each day of non- compliance. That order was not appealed, and the record
indicates that Yahoo! withdrew its appeal of the May 22 order on May 28, 2001
(Supp. Dec. of Mary Catherine Wirth, Exhibit A, Aug. 19, 2001).
Second,
the fact that any penalty against Yahoo! is provisional and would require
further legal proceedings in France prior to any enforcement action in the
United States does not mean that Yahoo! does not face a present and ongoing
threat from the existing French order.
At oral argument, Defendants did not dispute that if the penalty
enforcement process were initiated, the French Court could assess penalties
retroactively for the entire period of Yahoo!'s non-compliance. Despite their declarations to the effect
that they are satisfied with Yahoo!'s efforts to comply with the French order,
Defendants have not taken steps available to them under French law to seek
withdrawal of the order or to petition the French court to absolve Yahoo! from
any penalty. [FN7] See *1189Societe
de Conditionnement en Aluminium v.
Hunter Engineering Co., Inc.,
655 F.2d 938, 945 (9th Cir.1981) ("It is not
relevant that Hunter attempted to withdraw its 'threat' after the filing of
this lawsuit. We do think it relevant,
in the light of the circumstances, that Hunter has not indicated that it will
not sue SCAL for infringement or in any other
manner agree to a non-adversary position with respect to the patent.").
FN7. The Court
inquired at oral argument whether Defendants would be willing to take such
steps in order to avoid the necessity of the present adjudication but has
received no indication to date that they would.
Third,
it is by no means clear that Yahoo! can rely upon the assessment in Defendants'
declarations that it is in "substantial compliance" with the French
order. The French Court has not made
such a finding, nor have Defendants requested or stipulated that such a finding
be made. As set forth earlier,
Yahoo.com continues to offer at least some Third Reich memorabilia as well as Mein
Kampf on its auction site and permits access to numerous web pages with
Nazi-related and anti-Semitic content.
The fact that the 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.
The Declaratory Judgment Act was designed to relieve
potential defendants from the Damoclean threat of impending litigation which a
harassing adversary might brandish, while initiating suit at his leisure or
never. The Act permits parties so
situated to forestall the accrual of potential damages by suing for a
declaratory judgment, once the adverse positions have crystallized and the
conflict of interests is real and immediate.
Japan
Gas Lighter Ass'n. v. Ronson Corp.,
257 F.Supp. 219, 237 (D.N.J.1966).
2.
Real and Immediate Threat
The
French order prohibits the sale or display of items based on their association
with a particular political organization and bans the display of websites based
on the authors' viewpoint with respect to the Holocaust and anti-Semitism. A United States court constitutionally could
not make such an order. Shelley
v. Kraemer,
334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
The First Amendment does not permit the government to engage in viewpoint-based
regulation of speech absent a compelling governmental interest, such as
averting a clear and present danger of imminent violence. R.A.V.
v. City of St. Paul,
505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Simon
& Schuster, Inc. v. Members of New York State Crime Victims Board,
502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); Boos
v. Barry,
485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Police
Dept. v. Mosley,
408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Brandenburg
v. Ohio,
395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Kingsley
Int'l Pictures Corp. v. Regents,
360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). In addition, the French Court's mandate 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" is far too general and imprecise to survive the strict scrutiny
required by the First Amendment. The
phrase, "and any other site or service that may be construed as an
apology for Nazism or a contesting of Nazi crimes" fails to provide Yahoo!
with a sufficiently definite warning as to what is proscribed. See, e.g., Coates
v. Cincinnati,
402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Phrases such as "all necessary
measures" and "render impossible" instruct Yahoo! to undertake
efforts that will impermissibly chill and perhaps even censor protected speech. See Board
of Airport Commissioners v. Jews for Jesus,
482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); *1190Gooding
v. Wilson,
405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d
408 (1972).
"The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury." Elrod
v. Burns,
427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) citing New
York Times Co. v. United States,
403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
Rather
than argue directly that the French order somehow could be enforced in the
United States in a manner consistent with the First Amendment, [FN8] Defendants
argue instead that at present there is no real or immediate threat to Yahoo!'s
First Amendment rights because the French order cannot be enforced at all until
after the cumbersome process of petitioning the French court to fix a penalty
has been completed. They analogize this
case to Int'l
Soc. for
Krishna Consciousness of California, Inc. v. City of Los Angeles,
611 F.Supp. 315, 319-20 (C.D.Cal.1984), in which
the City of Los Angeles sought a declaratory judgment that a resolution limiting
speech activities adopted by its Board of Airport Examiners was
constitutional. The district court
concluded that the action was unripe because the resolution could not take
effect without ratification by the City Council, which had not yet occurred. The
cases, however, are distinguishable.
While Defendants present evidence that further procedural steps in
France are required before an actual penalty can be fixed, there is no dispute
that the French order is valid under French law and that the French Court may
fix a penalty retroactive to the date of the order. The essence of the holding in the Krishna
Consciousness case is that the subject resolution
had no legal effect at all.
FN8. As is discussed
below, Defendants do argue unpersuasively that further discovery might affect
the First Amendment analysis.
Defendants
also claim that there is no real or immediate threat to Yahoo! because they do
not presently intend to seek enforcement of the French order in the United
States. In Salvation
Army v. Department of Community Affairs of the State of New Jersey,
919 F.2d 183 (3rd Cir.1990), a religious group
that operated a family center for disadvantaged persons claimed a state statute regulating boarding houses violated its
right to the free exercise of religion.
After the group brought suit, the state authorities agreed outside of
the judicial proceedings to exempt the group from some of the provisions. The
district court then granted summary judgment and dismissed the action. On appeal, the group claimed it still faced
uncertainty with respect to future enforcement of the statute because the
exemptions were not legally binding and the regulations in their entirety
impermissibly intruded upon its First Amendment rights. The Court of Appeals for the Third Circuit
agreed with the trial court that there was no immediate threat to the group
because the state had provided an express assurance that it would not enforce
any of the waived provisions, no criminal penalties could be imposed under the
statute unless additional steps were taken by the state, the state could not
impose fines without giving notice and opportunity to comply, and there was no
evidence that the group's First Amendment rights actually would be affected by
the threat of future law suits.
Salvation
Army is distinguishable from this case in
several significant respects. First,
the New Jersey statute's penalties were "enforceable by the defendants
only prospectively..." Salvation
Army,
919 F.2d at 192.
The French order permits retroactive penalties. Second, while the exemptions granted to the
Salvation Army allowed it to maintain the status quo, the French order had the
immediate effect of *1191 inducing Yahoo! to implement new restrictive policies on its auction site. Third, while the perceived threat to the
Salvation Army was the potential withdrawal of the exemptions in the future,
the provisions of the French order that require Yahoo! to regulate the content
of its websites on Yahoo.com never have been waived, suspended or stayed and
apparently remain in full force and effect.
Under these circumstances, Defendants' assurances that they do not
intend to enforce the order at the present time do not remove the threat that
they may yet seek sanctions against Yahoo!'s present and ongoing conduct
[FN9]. See Abbott
Labs. v. Gardner,
387 U.S. 136, 154, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ("There is no question in the present case that
petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requires them to make significant changes
in their everyday business practices;
if they fail to observe the Commissioner's rule they are quite clearly
exposed to the imposition of strong sanctions."); Reno
v. Catholic Soc. Servs., Inc.,
509 U.S. 43, 57, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (construing Abbott
Laboratories to mean that if
"[p]romulgation of the challenged regulations present[s] plaintiffs with
the immediate dilemma to choose between complying with newly imposed,
disadvantageous restrictions and risking serious penalties for violation,"
the controversy is ripe).
FN9. Again, it would
appear that legal means are available to Defendants
both in France and in this Court to eliminate such a threat, but as yet
Defendants have not availed themselves of these procedures.
3.
Abstention.
Defendants next argue that this
Court should abstain from deciding the instant case because Yahoo! simply is
unhappy with the outcome of the French litigation and is trying to obtain a
more favorable result here. Indeed, abstention is an appropriate remedy for
international forum-shopping. In Supermicro
Computer, Inc. v. Digitechnic, S.A.,
145 F.Supp.2d 1147 (N.D.Cal.2001), a California
manufacturer was sued by a corporate customer in France for selling a defective
product. The California company sought
a declaratory judgment in the United States that its products were not defective,
that the French customer's misuse of the product caused the product to fail,
and that if the California company was at fault, only limited legal remedies
were available. The court concluded
that the purpose of the action for declaratory relief was to avoid an
unfavorable result in the French courts.
It noted that the action was not filed until a year after the French
proceedings began, that the French proceedings were still ongoing, and that the
French defendants had no intent to sue in the United States. It concluded that the declaratory relief
action clearly was "litigation involving the same parties and the same
disputed transaction." Id.,
at 1152.
In
the present case, the French court has determined that Yahoo!'s auction site
and website hostings on Yahoo.com violate French law. Nothing in Yahoo!'s suit for declaratory relief in this Court
appears to be an attempt to relitigate or disturb the French court's
application of French law or its orders with respect to Yahoo!'s conduct in
France. [FN10] Rather, the purpose of the present action is
to determine whether a United States court may *1192 enforce the French
order without running afoul of the First Amendment. The actions involve distinct legal issues, and as this Court
concluded in its jurisdictional order, a United States court is best situated
to determine the application of the United States Constitution to the facts
presented. [FN11] No basis for abstention has been
established.
FN10. Arguably,
Yahoo! does seek to relitigate the French court's factual determination that
Yahoo! does possess the technology to comply with the French order. For the reasons discussed herein, the Court
concludes that Yahoo!'s ability to comply with the order is immaterial to the
question of whether enforcement of the order in the United States would be
constitutional.
FN11. Yahoo!,
Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme,
145 F.Supp 2d. 1168, 1179 (N.D.Cal.2001).
4.
Comity
No
legal judgment has any effect, of its own force, beyond the limits of the
sovereignty from which its authority is derived. 28
U.S.C. § 1738. However, the
United States Constitution and implementing legislation require that full faith
and credit be given to judgments of sister states, territories, and possessions
of the United States. U.S. CONST.
art. IV, § § 1, cl. 1; 28
U.S.C. § 1738. The extent to
which the United States, or any state, honors the judicial decrees of foreign
nations is a matter of choice, governed by "the comity of
nations." Hilton
v. Guyot,
159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Comity "is neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and good will, upon the
other." Hilton,
159 U.S. at 163-64, 16 S.Ct. 139 (1895). United States courts generally recognize
foreign judgments and decrees unless enforcement would be prejudicial or
contrary to the country's interests. Somportex
Ltd. v. Philadelphia Chewing Gum Corp.,
453 F.2d 435, 440 (3d Cir.1971) cert. denied,
405
U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972); Laker
Airways v. Sabena Belgian World Airlines,
731 F.2d 909, 931 (D.C.Cir.1984) ( "[T]he
court is not required to give effect to foreign judicial proceedings grounded
on policies which do violence to its own fundamental interests."); Tahan
v. Hodgson,
662 F.2d 862, 864 (D.C.Cir.1981)
("[R]equirements for enforcement of a
foreign judgment expressed in Hilton are that ... the original claim not violate American
public policy ... that it not be repugnant to fundamental notions of what is
decent and just in the State where enforcement is sought.").
As discussed previously, the
French order's content and viewpoint-based regulation of the web pages and
auction site on 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.
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 protected speech that occurs
simultaneously within our borders. See,
e.g., Matusevitch
v. Telnikoff,
877 F.Supp. 1, 4 (D.D.C.1995) (declining to
enforce British libel judgment because British libel standards "deprive
the plaintiff of his constitutional rights"); Bachchan
v. India Abroad Publications, Inc.,
154 Misc.2d 228, 585 N.Y.S.2d 661 (Sup.Ct.1992)
(declining to enforce a British libel judgment because of its "chilling
effect" on the First Amendment); see
also, Abdullah
v. Sheridan Square Press, Inc.,
No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994) (dismissing a libel claim brought under English law because "establishment of a claim for
libel under the British law of defamation would be antithetical to the First
Amendment protection accorded to the defendants."). *1193 The reason for limiting comity
in this area is sound. "The
protection to free speech and the press embodied in [the First] amendment would
be seriously jeopardized by the entry of foreign [ ] judgments granted pursuant
to standards deemed appropriate in [another country] but considered
antithetical to the protections afforded the press by the U.S.
Constitution." Bachchan,
585 N.Y.S.2d at 665. Absent a body of law that establishes international standards
with respect to speech on the Internet and an appropriate treaty or legislation
addressing enforcement of such standards to speech originating within the
United States, the principle of comity is outweighed by the Court's obligation
to uphold the First Amendment. [FN12]
FN12. The Court
expresses no opinion as to whether any such treaty or legislation would or
could be constitutional.
B.
Rule
56(f)
FED.
R. CIV. P. 56(f) permits a court either to
postpone determination of a motion for summary judgment or to deny such motion
pending further discovery. A court may
take such action when "it appear[s] from the affidavits of a party
opposing the motion that the party cannot for reasons stated present by affidavit facts essential to
justify the party's opposition." FED.R.
CIV. P. 56(f). To justify a continuance, the Rule
56(f) motion must demonstrate 1) why the movant
needs additional discovery and 2) how the additional discovery likely will
create a genuine issue of material fact.
Krim
v. BancTexas Group, Inc.,
989 F.2d 1435, 1442 (5th Cir.1993).
Defendants
assert that further discovery may lead to the development of triable issues of
fact concerning the extent to which Yahoo!'s modifications to its auction site
have affected its potential liability under the French order and as to Yahoo!'s
technological ability to comply with the order. Defendants contend that these issues are material because the law
is unsettled as to whether the First Amendment protects speech originating
within the United States that is expressly targeted at a foreign market. In Desai
v. Hersh,
719 F.Supp. 670, 676 (N.D.Ill.1989) aff'd,
954
F.2d 1408 (7th Cir.1992), an author published a
book in the United States about former Secretary of State Henry Kissinger. A former Indian government official who was
mentioned in the book brought a defamation action in the United States, seeking
to apply Indian law. Although it held
that the First Amendment applied extraterritorially to publication of the book
and therefore refused to apply Indian defamation law, it also commented that
"for purposes of suits brought in United States courts, first amendment
protections do not apply to all extraterritorial publications by persons under
the protections of the Constitution."
Id.,
719 F.Supp. at 676.
Relying upon this dictum,
Defendants suggest that discovery may produce additional evidence that would
preclude summary judgment on First Amendment grounds. However, unlike the defendant in Desai, who claimed protection under the First Amendment for his
extraterritorial conduct, Yahoo! seeks protection for its actions in the
United States, specifically the ways in which it configures and operates
its auction and Yahoo.com sites.
Moreover, the French order requires 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 the content that
is proscribed. If a hypothetical party
were physically present in France engaging in expression that was *1194
illegal in France but legal in the United States, it is unlikely that a United
States court would or could question the applicability of French law to that
party's conduct. However, an entirely
different case would be presented if the French court ordered the party not to
engage in the same expression in the United States on the basis that French
citizens (along with anyone else in the world with the means to do so) later
could read, hear or see it. While the
advent of the Internet effectively has removed the physical and temporal
elements of this hypothetical, the legal analysis is the same.
In
light of the Court's conclusion that enforcement of the French order by a United States court would be inconsistent with
the First Amendment, the factual question of whether Yahoo! possesses the
technology to comply with the order is immaterial. Even assuming for purposes of the present motion that Yahoo! does
possess such technology, [FN13] compliance still would involve an impermissible
restriction on speech. Accordingly,
Defendants' motion pursuant to Rule
56(f) motion will be denied.
FN13. As noted
earlier, the French court expressly found against Yahoo! as to this point in
its order of November 20, 2000.
V. CONCLUSION
Yahoo!
seeks a declaration from this Court that the First Amendment precludes
enforcement within the United States of a French order intended to regulate the
content of its speech over the Internet.
Yahoo! has shown that the French order is valid under the laws of
France, that it may be enforced with retroactive penalties, and that the
ongoing possibility of its enforcement in the United States chills Yahoo!'s
First Amendment rights. Yahoo! also has
shown that an actual controversy exists and that the threat to its
constitutional rights is real and immediate.
Defendants have failed to show the existence of a genuine issue of
material fact or to identify any such issue the existence of which could be
shown through further discovery.
Accordingly, the motion for summary
judgment will be granted. The Clerk
shall enter judgment and close the file.
IT IS SO ORDERED.