Yahoo’s Nazi Suit Tossed
A split federal appeals court dismissed a lawsuit Thursday in which Yahoo Inc. claimed its free speech rights were violated when a French court fined the company $15 million for displaying Nazi memorabilia.
But the ruling by the U.S. 9th Circuit Court of Appeals in San Francisco resolved the case on highly technical grounds, largely bypassing the 1st Amendment issues the company had raised. Those issues had generated considerable interest in the case because they raised questions about how speech on the Internet might be regulated across international borders.
A French court ruled in 2000 that Yahoo had violated that nation’s laws against hate speech by displaying what two French civil rights groups called “hundreds of Nazi symbols or objects for sale on the Web.” The Web pages at issue contained links to “Mein Kampf,” Adolph Hitler’s autobiography; other anti-Semitic material; Nazi Web-auction sites; and websites maintained by groups that deny the Nazi Holocaust took place.
The court ordered Yahoo to remove the links to those pages in France. The judge also ordered the company, which is based in Sunnyvale, Calif., to remove any links from its main site, Yahoo.com.
The court ordered a per-day fine for failing to comply, which by now would amount to about $15 million.
After that judgment was issued, Yahoo took some Nazi paraphernalia off its site, saying it had done so voluntarily, not because of the court judgment.
Yahoo also sought a judgment in U.S. court that the plaintiffs in the French case could not collect the fine in the United States. By a 6-5 vote, the 9th Circuit threw out the case, although the six judges in the majority were split 3 to 3 on their reasons.
Three of the six judges said the plaintiffs, the League Against Racism and Anti-Semitism and the French Jewish Students Union, lacked sufficient contact with the United States for an American court to take jurisdiction of their case.
The other three judges in the majority said that they thought a U.S. court could take jurisdiction but that Yahoo’s attempt to go to court was premature because the plaintiffs had not attempted to collect the fine. The three said the decision by Yahoo to take some Nazi-related material off its website was a crucial point.
Because Yahoo had voluntarily changed its policy to comply with the French court’s orders and faced no immediate harm, its suit “comes perilously close to a request for a forbidden advisory opinion,” Judge William Fletcher wrote for those three judges.
But in his dissent on behalf of five judges, Judge Raymond C. Fisher sharply disagreed, saying the court should take on the case because of 1st Amendment concerns.
“We of course recognize the horrors of the Holocaust and the scourge of anti-Semitism and France’s understandable interest in protecting its citizens from those who would defend or glorify either,” he wrote.
But, he said, “the question we face in this federal lawsuit is whether our own country’s fundamental guarantee of freedom of speech protects Yahoo” against the French fine.
E. Randol Schoenberg, the Los Angeles lawyer who represented the plaintiffs in the 9th Circuit, said he was pleased with the ruling. The plaintiffs had no plans to attempt to collect their judgment because Yahoo had come into “substantial compliance” with French law, he said.
Philippe Schmidt, the Paris-based lawyer who represented the plaintiffs in France, made similar remarks.
“We said to Yahoo, ‘Do whatever you want in the U.S., but in France observe French law.’ I think both countries are entitled to have their own rules,” Schmidt said in a telephone interview.
Linda Du, a spokeswoman for Yahoo, said via an e-mail statement, “The majority of the court could not agree as to whether the case was ready to be decided on the 1st Amendment issue.”
However, as to this particular matter, “based on today’s ruling, Yahoo believes that free speech rights would prevail if the French court orders were attempted to be enforced in the U.S.”