*1 citizen and the other Mathys, Compton, presumption is a There
defendants. awarding prevailing costs to the
favor Cal., F.3d S. Stanley v. Univ.
party, (9th Cir.1999), has and AHDC alsoWe presumption. rebut that
failed to of the dis-
reject City’s cross-appeal costs, since denying order
trict court’s rea- provided adequate court
the district of discretion. Associ-
sons for its exercise v. Educators Mexican-American
ation of (9th 572, Cir.
California, 231 F.3d (en banc).
2000) reasons, judgment foregoing
For the City, favor of
of the district AFFIRMED.
Mathys, the citizens is taxing court’s order costs
The district citi- Mathys, Compton and other
favor of declining to tax costs
zen defendants similarly AF- City is
in favor of the is REMANDED
FIRMED. The case attorney to the citizens fees
the award opinion. with this accordance INC., corporation, a Delaware
YAHOO!
Plaintiff-Appellee, LE ET
LA RACISME LIGUE CONTRE
L’ANTISEMITISME, a French associ-
ation; Des Etudiants Juifs L’Union association, France, De- a French
De
fendants-Appellants.
No. 01-17424. Appeals,
United States Court
Ninth Circuit. March 2005.
Argued and Submitted
Filed Jan. *2 Schoenberg,
Randol Burris & Schoen- CA; berg, Angeles, Los A. Robert Chris- Brothers, Alto, CA; topher, Coudert Palo Lebow, Carreras, Mark D. Sokolow New York, NY, defendants-appellants. for the Godward, Traynor, Cooley, Michael Cas- tro, Tatum, Francisco, Huddelson & San CA; Vanderet, Robert O’Melveney C. & CA, Myers, Angeles, plaintiff- Los for the appellee. Brick, ACLU, Francisco,
Ann San Cali- fornia; Morris, Jr., John B. Alan B. David- son, Democracy for Technology, Center & DC, Washington, for amici American Bo- Expression, oksellers Foundation Free et al. Hauek, Kelley,
Jodie L. Brian Jenner & Block, DC; Washington, Stephen A. Bo- kat, Conrad, Ulman, Robin S. Joshua A. Center, Litigation National Chamber DC, Corn-Revere, Washington, Robert LLP, Wright Washington, Davis Tremaine diversity against Ligue court in La Contre DC, of Commerce for amici Chamber (“LI- States, al., and for amicus et Le Racisme et L’Antisemitisme the United Democracy. CRA”) Etudiants de Center and L’Union des Juifs (“UEJF”) declaratory seeking
France
*3
judgment
by
two interim orders
unrecognizable
French court are
and unen
court held that the
forceable. The district
jurisdiction
LI-
personal
exercise of
over
proper, that the dis
SCHROEDER,
CRA and UEJF was
Judge, and
Chief
Before
FERGUSON, O’SCANNLAIN,
unnec
pute
ripe,
was
abstention was
TASHIMA,
FLETCHER,
HAWKINS,
essary,
W.
not
and that the French orders are
GOULD, PAEZ, CLIFTON,
FISHER,
in
enforceable
the United States because
BEA,
Judges.
and
Circuit
such enforcement would violate the First
court
not
Amendment.
district
did
PER CURIAM.
question
reach the
whether the orders are
court
majority
A
of the en banc
recognizable.
appeal
LICRA and UEJF
Fletcher,
joined by
W.A.
Chief
(Judge
jurisdiction,
only
personal
ripeness,
Hawkins,
Judges
and
Judge Schroeder
holdings.
majority
and
A
abstention
Bea)
Fisher, Gould, Paez, Clifton, and
con
holds,
explained
as
panel
the en banc
personal
court had
cludes that the district
II
opinion,
Part
of this
the district
jurisdiction over the
Of that
defendants.
jurisdic
properly
personal
exercised
(Chief
Judge
majority,
judges
three
A plurality
tion over LICRA and UEJF.
Schroeder,
and
Judges
and
W.A. Fletcher
concludes,
panel
explained
as
Part
Gould) conclude that the action should be
opinion,
ripe
III of
that the case is not
ripeness.
for
lack of
Five
dismissed
under the criteria of Abbott Laboratories
Fisher,
(Judge
joined by Judges
judges
Gardner,
87 S.Ct.
Bea)
Hawkins, Paez, Clifton, and
conclude
(1967).
websites contain their two-letter the French court. LICRA and UEJF fr.yahoo.com, uk.ya- designations, such as pro- to serve used United States Marshals hoo.com, in.yahoo.com. and Yahool’s for- cess on Yahoo! in California. eign provide content in subsidiaries’ sites 15, 2000, hearing May After a on citizens, language, target the local local an French court issued “interim” order on adopt policies comply and with local May requiring Yahoo! to all nec “take practice, law and customs. In actual how- essary measures to dissuade and render ever, highly national boundaries are impossible any access French terri [from permeable. example, any For user in the tory] via Yahoo.com to the Nazi artifact type www.fr.yahoo.com United States can any auction and to other or service site thereby into his or her web browser and service be construed as constitut reach Yahoo! France’s website. Con- ing an apology contesting for Nazism or versely, any type user 'France can added).1 (emphasis of Nazi crimes” browser, www.yahoo.com into his or her or Among things, other the French court re click link to Yahoo.com on the Yahoo! particular quired specified Yahoo! to take ya- page, thereby France home reach “[b]y way precautionary actions of interim hoo.com. required measures.” Yahoo! was “to cease early April Sometime in LICRA’s hosting availability territory all chairman sent fax mail and a cease and from the Tahoo.com’ site ... [France] letter, April desist dated to Ya- messages, images relating and text to Clara, headquarters hoo!’s in Santa Cali- relics, objects, insignia, Nazi emblems and letter, fornia. The in English, written Nazism,” flags, or which evoke and of in part: stated text, extracts, pages displaying “Web or particularly are to [W]e choked see [sic] quotes Kampf from ‘Mein and the ‘[Proto ” your Company keeps presenting on speci cols of the Elders of at two Zion]’ every day symbols hundreds of nazi or fied Internet addresses. Yahoo! was fur objects for sale on the Web. required ther “all remove from browser practice illegal according This territory directories accessible in the legislation French Republic” heading is incumbent the French the “index (italicized above) phrase 1. The French court's orders are written in the entire quote English French. We from the transla- "prendre de toutes les mesures nature á provided tion in the record. Counsel for LI- impossible.” et dissuader á rendre Counsel argument CRA and UEJF contended at oral contended that the words "toutes les mesures (un- necessary that the words "all measures" accurately de nature á” are more translated above) derlined and italicized are a mistrans- (or available) "all as reasonable measures.” original lation of the French text. The ” link in France could be identified. The any sites ‘negationists’ entitled al- presenting report specifically or noted that Yahoo! together, equating, “bringing sites indirectly equivalent” of French directly ready used such identification Holo and sites the Holocaust display advertising about banners in users to caust deniers. applied French. The 70% number irre- sought spective of whether Yahoo! user required Ya- May 22 interim order site, auction or to a site access to an Yahoo!) (as from France distinct hoo! of the Holocaust or denying the existence heading “negationists” index remove the constituting apology an for Nazism. sites, described negationist link to and the fur- above, The order fr.yahoo.com. from sites, report to auction respect With post Yahoo! France to required ther possible concluded that it would be to iden- fr.yahoo.com stating warning out of the three tify additional users. Two that, in the event of that website user approximately experts concluded through material prohibited accessed user seeking of users access to additional 20% Yahoo.com, must he or she a search on offering Nazi-related items auction sites concerned[,] viewing the site “desist from through an for sale could be identified pro- penalties subject imposition user would be system honor which the *5 bringing legislation in French or the vided In nationality. his or her asked to state him.” against action legal all, that almost experts the two estimated Yahoo! and stated that both The order auction site users in France 90% of such subject penalty to a France were Yahoo! “The combination of could be identified: 100,000 day delay per or per Euros namely geographical procedures, the two violation, and stated confirmed the IP address and decla- identification of penalties liquidation “possibility nationality, likely would be to ration of The was pronounced” “reservefd].” thus filtering approach- success rate achieve “provisional 1 Franc in awarded order also expert expressed The third ing 90%.” Yahoo! by Yahoo! and damages,” payable of additional the number doubts about UEJF, an addi- and awarded France to re- the auction site who would users of Yahoo! and Yahoo! against 1 Franc tional system. truthfully under the honor spond Article 700 of expenses France under not, however, specify an alternative He did The of Civil Procedure. the New Code say, 15% or 10%—who number of users — 10,000 Francs court also awarded truthfully. respond would under Article expenses Yahoo! for against exis- denying to sites respect With LICRA, 10,000 Francs to payable constituting an or tence of the Holocaust and Yahoo! France against Yahoo! each Nazism, report was apology for (a 20,000 total of under Article suitable and effective “propose able to Francs), to UEJF. payable “grievance” no because technical solutions” May 22 order. objected to the been made with those sites had against contended, things, among other It consequence, In precision.” “sufficient solution which was no technical “there sites, report did to these non-auction comply fully it to would enable many Yahoo! users above how not estimate (Emphasis the court order.” terms of could be identified 70% number the base added.) French court response, In system. an honor ex- report from three obtained a written order, on issued interim a second that under report concluded perts. The French court reaf- November 70% of approximately conditions current Ya- May 22 order and directed computer firmed operating from Yahoo! users months, compliance. organiza- comply hoo! to within three “sub- level of Yet neither 100,000 day ject penalty per to a Francs willing tion is to ask the French court to day follow- delay effective from the first vacate its orders. As LICRA UEJF’s (The ing expiry period.” of the 3 month argument, “My counsel made clear oral 22May specified penalty order had give up right go clients will not to to Francs.) 100,000 100,000 rather than Euros judgment France and the French enforce liqui- possible The court “reserve[d] they Yahoo! in France if revert to penalty” against dation of the Yahoo!. ways their old and violate French law.” The French court’s November order The record reveals that the French (as required Yahoo! France distinct from “public prosecutor” participated pro- Yahoo!) display warning “a to surfers ceedings against Yahoo! and Yahoo! link even before have made use of the court, France in the French but it does not Yahoo.com, brought to be into effect authority reveal whether he has the following within months notification of penalty against seek a Yahoo! under the However, the present order.” the French orders, pursu- interim either on his own “that found YAHOO FRANCE has request by ant to a LICRA UEJF. and/or complied large spirit measure with the public prosecutor was not made a May and letter of the order of 22nd court, party to the suit the district added.) (Emphasis 2000[.]” appearance has no made the district required November 20 order court or If appeal to this court. LI- 10,000 pay report, Francs for a to be CRA, UEJF, public prosecutor or the prepared the future one of the ex- imposition penalty by were to seek the of a court, perts previously appointed by the pursuant French court to the interim determine whether Yahoo! was in compli- *6 orders, that court would have to determine ance with the court’s orders. It also violation, any, extent of Yahool’s 20,000 awarded a against total Francs orders, any as well as the amount of 700, expenses Yahoo! for under Article penalty, before an award of a penalty could UEJF, payable to LICRA and and an be entered. unspecified against amount of costs Ya- hoo!, payable to LICRA and UEJF. The On December Yahoo! filed suit court specifically stated that not was against LICRA and UEJF in federal dis awarding any expenses or costs court, trict seeking declaratory judgment (which Yahoo! France it had found to that the interim orders of the French court complied have “in large measure” with its recognizable are not or enforceable order). LICRA and UEJF used United Subject jurisdiction United States. matter States Marshals to serve both orders on solely diversity is based of citizenship. Clara, Yahoo! in Santa California. 1332(a)(2). § 28 U.S.C. In a thoughtful pursue appeals
Yahoo! did not of either opinion, the district court concluded that it interim order. personal jurisdiction had over LICRA and Inc. v. Ligue UEJF. Yahoo! La Contre Le imposed The French court has L’Antisemitisme, Racisme Et 145 penalty on Yahoo! for May violations of the (N.D.Cal.2001). 1168, 1180 F.Supp.2d Sev 22 or November 20 orders. Nor has ei- later, thoughtful eral months in another ther LICRA or UEJF returned to the opinion, the district court concluded that imposition French court to seek the of a ripe, the suit was penalty. abstention was not organizations affirmatively Both warranted, represent to us that have no and that “the First Amend intention doing so if Yahoo! precludes maintains its current ment enforcement within the Yahoo!, Ligue process on Yahoo! Santa Clara to com- Inc. v. La States.” United L’Antisemitisme, suit; in- obtaining et mence the French two Le Racisme Contre (N.D.Cal.2001). 1181, court; F.Supp.2d from the French terim orders serving on Yahoo! in the two orders Santa interim orders early after both Clara. court, entered had been filed suit federal dis- Yahoo! had after Where, here, appli there is no court, adopted policy a new trict governing personal cable federal statute of auctions or classified use prohibiting jurisdiction, applies the district court “to or on Yahoo.com offer advertisements in which the district court law the state with or that are associated trade items 4(k)(l)(A); Panavi sits. See Fed.R.Civ.P. glorify groups promote used to could be Int’l, L.P. 141 F.3d Toeppen, sion for hateful and principally that are known (9th Cir.1998). Because California’s at others based positions directed violent long-arm jurisdictional statute is coexten Yahoo! has or similar factors.” on race process require due sive federal elsewhere, this court represented, ments, analyses jurisdictional under adopted in policy has not been that its new process law due are the state and federal orders, but to the French court’s response (citing same. Id. Cal.Civ.Proc. Yahoo’s independent reasons. rather 410.10). § Code much of the conduct policy eliminates new Howev- prohibited by the French orders. In International Shoe Co. v. Wash er, conducting its own Internet re- after ington, 326 U.S. 66 S.Ct. yahoo.com, the district court search on (1945), Supreme L.Ed. 95 Court held change, policy that even after this found personal juris that a court exercise fully not to have com- “appearfs]” consistent with diction over defendant respect with the orders with plied process only if he or she has “certain due at 1185. For F.Supp.2d auction site. 169 minimum with the relevant fo contacts” court found that Ya- example, district rum “such that the maintenance of the suit to allow the sale of items hoo! continued notions of fair does not offend ‘traditional Kampf stamps copy such as a Mein ” justice.’ play and substantial Id. at on which period and coins from the Nazi Meyer, Milliken v. (quoting 66 S.Ct. depicted. the swastika is Id. The district *7 L.Ed. 311 U.S. 61 S.Ct. 85 also found that access was available (1940)). contacts 278 Unless a defendant’s in yahoo.com to various sites re- through substantial, continu with a forum are so sponse to searches such as “Holocaust/5 ous, can systematic that the defendant and happen.” did not Id. in that forum “present” be deemed to be timely appealed and LICRA UEJF only may exercise purposes, for all a forum jurisdic- rulings personal court’s district is, jurisdiction jurisdiction “specific” —that tion, ripeness, and abstention. de relationship between the based on the plaintiffs contacts and the fendant’s forum II. Personal Jurisdiction only specific parties agree claim. The jurisdiction only personal bases for in this case. jurisdiction is at issue in the district over LICRA and UEJF circuit, analyze specific In we this in actions have taken court are the according three-prong to a jurisdiction with their French suit connection test: sending Those actions are cease Yahoo!. (1) defendant must The non-resident headquar- to Yahoo! at its and desist letter n con- California; his activities or Clara, serving purposefully direct in
ters Santa 1206 Rather, in case. it is a case with the fo- nor a contract
summate some transaction
thereof;
perform
argues,
or
on the First
rum or resident
which Yahoo!
based
avails
purposefully
Amendment,
some act which he
that the French court’s inter-
conducting
privilege
of the
himself
by an Ameri-
im orders are unenforceable
forum, thereby invoking
activities
can court.
laws;
protections
of its
the benefits
contend that we
LICRA
UEJF
(2)
claim must
one which arises
be
analysis
our
on the so-called
must base
out of
relates to the defendant’s fo-
or
Jones,
“effects” test
Calder
activities;
rum-related
(1984),
783, 104
posefully
his activities” at the fo-
direct[s]
circuit,
In this
we construe Calder to
state, applying
rum
an “effects” test that
impose
requirements:
three
“the defen-
focuses on
forum in
which the defen-
(1)
allegedly
dant
have
committed
[must]
felt,
dant’s actions were
whether or not the
(2)
act,
expressly
an intentional
aimed at
actions themselves occurred within the fo-
(3)
state,
causing
the forum
harm that the
Schwarzenegger,
rum. See
1207
Inc.,
223 F.3d
1087 the bulk of the harm done to
Augusta
petitioner
Nat’l
Cir.2000)
added).
(9th
(emphasis
Hampshire.”
occurred outside New
465
originated
harm formulation
“brunt” of the
780, 104
U.S. at
S.Ct. 1473.
Corp.
in
principal opinion
Core-Vent
LICRA and UEJF contend that
(9th
AB,
has
agree with
meaning
them about the
of the harm must be suffered in
the brunt
forum.”).
application of Colder.
discussing the dis
Without
formulation,
of the harm
puted “brunt”
jurisdiction
In
personal
case
judge
concurring
agreed with the dissenter
we must evaluate all of a defendant’s con
could
found.
purposeful
availment
state,
tacts
the forum
whether or not
(“I
(Fernandez, J., concurring)
Id. at 1491
wrongful activity by
those contacts involve
agree
Judge
pur
with Chief
Wallace that
See,
Quill
e.g.,
the defendant.
Corp.
poseful availment can be found
Dakota,
298, 308,
North
112
504 U.S.
S.Ct.
case.”).
opinions picked up
Later
(1992)
1904, 119
(upholding
L.Ed.2d
of the harm formulation of the
“brunt”
jurisdiction to enforce state tax on out-of-
opinion in
without not
principal
Core-Vent
corporation
catalogs
state
that sent
two,
one,
ing
possibly
that at least
forum);
King
goods
Burger
Corp. v.
judges
panel disagreed
on the
with it.
Rudzewicz,
105 S.Ct.
Masters,
See, e.g.,
&
223 F.3d at
Bancroft
(1985)
(upholding
L.Ed.2d
Panavision,
1087;
1321;
F.3d
Ca
jurisdiction
on a course of
personal
based
Ass’n,
Psychoanalytical
ruth v. Int’l
(9th Cir.1995).
126, 128
dealing
agreement).
related to a franchise
F.3d
Many
cases
which
Colder effects
opportunity
clarify
take this
We
wrongful
test
is used will indeed involve
“brunt”
our law and to state
See,
e.g.,
conduct
the defendant.
Cold
harm need not be suffered in the forum
er,
1482, (alleg
jurisdictionally
If a
state.
sufficient
edly defamatory
purposefully
publication
amount of harm is suffered
the forum
California);
directed at
& Mas
Bancroft
state, it does not matter that even more
ters,
(wrongful
Under these do not sought, we fornia. The suit and the French believe that LICRA’s letter is a contact granted, court directing orders Yahoo! to would, alone, justify that if considered perform significant acts in California. It personal jurisdiction. exercise is of course true that by the effect desired France, the French court would be felt in LICRA and UEJF’s second contact change but that does not the fact that contacts) (or, precisely, more set of significant acts performed were to be in process California was service of on Yahoo! California. The servers that support ya- in California. LICRA first effected ser California, hoo.com are located in and com- process vice of to commence the French pliance with the French court’s orders nec- suit. LICRA UEJF later effected essarily require would Yahoo! to make service the French court’s two interim changes Further, some to those servers. regard orders. We do not the service of to the extent that any penalty financial documents in connection with suit might imposed pursuant be to the French brought foreign in a contacts that orders, court’s impact penalty of that by justify themselves per exercise of corporate would be felt Yahoo! at its jurisdiction foreign litigant sonal over a in headquarters If in a United States court. we were to hold California. See Dole Food, that such service awere sufficient basis for 303 F.3d 1113-14.
jurisdiction, we would providing fo requirement The third LICRA “ any rum-choice tool which United and UEJF’s acts harm that the ‘eaus[e] in foreign country States resident sued likely defendant knows is to be suffered and served in the United States could ” requirement the forum state.’ Id. This States, bring regardless suit the United problematic, somewhat for Yahoo! has not any jurisdiction. other basis for areWe alleged any specific way shown or even holding, unaware of case so and Ya which it has altered its behavior re- hoo! has cited none. sponse to the French court’s interim or-
Third, important, and most LI changed policy ders. Yahoo! with re- CRA and UEJF have obtained two interim spect Yahoo.com after the French from directing orders the French court entered, court’s orders were but California, Yahoo! to take actions in consistently has maintained that penalty. threat of a agree substantial We change was unrelated to the orders. with LICRA and UEJF the French Therefore, persuaded even we were appropriately analyzed court’s orders are change policy YahooPs harmed it under the Calder effects test. way, represented some Yahoo! itself has by any harm such was not caused requirements
The first two are that LI- ‘(1) action it clear CRA and “have of LICRA UEJF. Nor is UEJF committed an (2) act, that, orders, expressly intentional absent the interim [which was] *11 they will not that commitment In- contractual in the future. policy its change would orders, taken no they have during oral enforce deed, to us represented As orders withdrawn. nothing that to have the there is action that argument argument, do, refraining clear at oral but is now counsel made like to their would of the interim orders. want to be able doing, because and UEJF from LICRA court for enforce- to the French return Yahoo!, however, possi- to the points ways.” its “old if Yahoo! returns to ment be penalty will a substantial bility that not inde- Yahoo! does part, its while For court’s No- the French under assessed comply steps to take wish pendently in points It order. 20 interim vember orders, court’s fully the French more with in that order provision particular subject that it be that it fears it states amount of potential that specifying (and if it increasing) fine to a substantial 100,000 Francs penalty increases in these Yahoo! maintains does not. in violation day that Yahoo! is every legally cognizable it has circumstances represents the court’s orders. knowing whether the French now, interest change of after its to us even in this coun- orders are enforceable court’s acting plain violation policy, it is try. a declara- It contends that the orders. determining the enforce- tory judgment inquiry, specific jurisdiction In a of the ability by an American court defendant’s the extent we consider will allow it to de- court’s orders degree to the forum and the contacts with of conduct appropriate course termine to those plaintiffs suit is related which the in which it respect to the activities
with
strong showing
A
on one axis
contacts.
The district court
engage.
continues to
on the other.
permit
showing
a lesser
will
that,
poli-
notwithstanding its new
found
support
can
forum state contact
single
A
cy,
...
of action
jurisdiction if “the cause
still offers
Yahoo.com auction site
particular purposeful
out of
arise[s]
(such
stamps,
certain items for sale
the forum
of the defendant with
contact
coins,
Kam/pf)
of Mein
which
copy
Lake,
F.2d at 1421. The
See
state.”
violate the French Order.
appear
case for
polar
is the classic
case before us
the Protocol
Yahoo! has removed
While
jurisdiction
in Interna-
specific
described
auction
Zion from its
the Elders of
Shoe,
very
are
few
in which there
tional
site,
access to nu-
prevented
it has not
those few contacts
contacts but
which
reasonably
merous other sites which
directly related to the suit. See
are
constituting an
“may
construed as
(“[S]ome
single or
contesting
or a
apology for Nazism
agent in a
corporate
of the
occasional acts
Nazi crimes.”
qual-
nature and
... because of their
state
added).
F.Supp.2d
(emphasis
at 1185
of their commis-
ity and the circumstances
court,
and the district
both this court
sion,
to render
may be deemed sufficient
that,
represented
have
LICRA and UEJF
suit.”). All of the
liable to
corporation
view,
they
call
in their
Yahoo! is what
in this case
forum state
contacts with the
compliance” with the French
“substantial
orders themselves
are either the interim
repre-
further
They
court’s orders.
have
or-
directly related to those
or contacts
they
will not seek enforcement
sented
ders.
if Yahoo! continues
penalty provision
sought
have not
en-
and UEJF
LICRA
compliance
present
level
court’s orders
of the French
However,
forcement
and UEJF
LICRA
orders.
they
stated that
country, and
have
making
binding
short of
stopped
have
penalties
will not
we turn
proper,
question
seek enforcement
UEJF is
to the
*12
“
long as Yahoo! continues its current
ripeness. Ripeness
so
doctrine is
‘drawn
However,
of
course
conduct.
LICRA
judicial
both from Article III
on
limitations
sought
have not
to vacate the
UEJF
power
prudential
and from
reasons for re
”
orders,
French
and it is at least
court’s
fusing
jurisdiction.’
to exercise
Nat'l
they might
later seek en-
possible
DOI,
Hospitality
Park
Ass’n v.
538 U.S.
Ya-
forcement based on
continuation of
803, 808,
2026,
123 S.Ct.
III.
judicial decision,”
issues for
and “the hard-
ship
parties
withholding
Because we conclude that the
to the
exercise
Gardner,
personal
jurisdiction over
v.
LICRA
consideration.” Abbott Labs.
Judi-
1507,
dissenting).
Scharpf,
Fritz W.
149,
See
136,
87 S.Ct.
Question: A
(1967);
Elec. Co.
the Political
Pac.
&
cial Review and
L.Ed.2d 681
Gas
Dev.&
Conservation
L.J.
Energy
Analysis,
Res.
Yale
v. State
Functional
Comm’n,
201, 103 S.Ct.
(1966).
461 U.S.
See also United Public Workers
(1983)
Abbott
(quoting
A. Fitness
Issue
J., dissenting).
(Douglas,
Decision
Judicial
analy-
to a
important
ripeness
thus
It is
Legal
1. The Substantive
legal ques-
precise
we
the
specify
sis that
at
Question
Issue
on
Depending
the
tion to be answered.
sufficiently ripe
is
dispute
a
Whether
ripe or
question,
may
the case
be
legal
not
judicial
depends
only
fit for
decision
be
legal ques-
wrong
If
ask the
unripe.
we
It
of the factual record.
on
state
tion,
wrong answer
getting
we risk
ques-
legal
substantive
depends also on the
question
ripeness question.
legal
the legal question
If
is
tion to be decided.
is
the two
by this case whether
presented
relatively
factual de-
straightforward,
little
court are
orders of
interim
As
may
necessary.
we
velopment
be
orders,
country. These
enforceable in this
Rights
Diego County
in San
Gun
wrote
terms,
only that
by
require
their explicit
(9th
Reno,
1121,
F.3d
1132
v.
98
Comm.
'access
Internet users
Yahoo! restrict
“[Pjure
Cir.1996),
that re-
legal questions
say nothing
in
located
France.
orders
development
little
are more
quire
factual
In-
access
restricting
about
whatsoever
contrast,
By
legal
if the
likely
ripe.”
to be
We are
ternet users
United States.
on numerous factors
question depends
of
whether enforcement
asked
decide
develop-
resolution,
factual
extensive
“repugnant”
would
these interim orders
be
necessary.
ment
policy.
public
to California
Bd.
noted
is Adler v.
example
A
of
currently
is
no federal statute
There
380,
Educ.,
485, 72
96 L.Ed.
judg-
recognition
foreign
governing
(1952),
Frankfurter
in which Justice
517
courts. See American
ments
the federal
justices
other
about the
disagreed with the
Institute, Recognition and
Law
Enforce-
and, as
legal
presented,
question
precise
Analysis
Foreign Judgments:
ment of
ripeness.
consequence, disagreed about
11,
(April
Proposed Federal Statute
question, as Justice
legal
Because the
2005)
draft).
final
The federal
(proposed
it,
fine-
required
understood
Frankfurter
statute, 28 U.S.C.
full faith and credit
judgments
on
based
grained and subtle
1738,
only judgments rendered
governs
§
development,
conclud-
factual
he
extensive
the United
by courts of states within
not
Id. at 506-
ripe.
that the suit was
ed
cases, enforceability
diversity
In
States.
(Frankfurter, J.,
07,
dissent-
based on the California law of enforceabili- is, That an American court will not enforce ty. judgment if “the cause action which based, judgment judgment or was
California,
states,
along with many other
itself,
repugnant
public policy
is
to the
adopted
Foreign Money-
has
the Uniform
(“Uniform the United
or of the
where
Judgments Recognition
States
State
Act
“Act”).
recognition
sought[.]”
Act”
is
Restatement
Cal.Civ.Proc.Code
482(2)(d)
added);
§§
§
The
also Re-
(emphasis
1713-1713.8.
relevant standard for
see
(Second)
forbidding
testifying
Elwell from
of Laws
tion
the Conflict
statement
(“[Enforcement
(1971)
sought
will
suit about GM vehicles. Smith
§
cmt. c
expert
in her
judgment
to call Elwell as
witness
usually
[of
be accorded [a]
except in situations where California suit.
California Court
foreign court]
repugnant
Michigan
is
declined to enforce
original
Appeal
claim
funda-
just
“blatantly
ground
what is decent and
on the
injunction
mental notions of
where
enforcement
irreconcilably
in the State
conflicts with our funda-
added).
sought.”) (emphasis
public policy against
suppres-
mental
Id.
sion of evidence.”
49 Cal.
little
law California
very
case
There
20;
v.
see also Baker
General
Rptr.2d
foreign
enforceability of
coun-
dealing with
Corp., 522
Motors
general principles
under
try injunctions
(1998) (Missouri
L.Ed.2d 580
state
law is consistent with the
comity, but that
§
1738 to
required
28 U.S.C.
of the Restatement.
repugnancy standard
injunction
Michigan
enforce the same
only
case which
We have found
one
when
enforcement
against Elwell
such
has
on the enforce-
California court
ruled
public policy).
would violate Missouri
ability
injunction granted
of an
another
M.,
Stephanie
country.
In re
Cal.4th
repugnancy
gener
is also
standard
Cal.Rptr.2d
California courts have Greschler, 377, 368, v. N.Y.2d Greschler 51 public policy analogous context (1980) 194, 414 694 434 N.Y.S.2d N.E.2d injunctions entered other American (“[T]he to public policy exception the doc Court, In 41 Superior courts. Smith ... comity usually trine of is invoked when (1996), 1014, 20 Cal.Rptr.2d 49 Cal.App.4th to funda original repugnant claim is injured, plaintiff badly had been and Smith just of what decent and mental notions is killed, her husband and two children when (“GM”) in the State where enforcement Motors vehicle burst their General omitted). (internal sought.”) quotation flames after a collision. Smith into Further, cite federal courts sometimes brought product liability suit Califor- general principles comity without refer against engi- Elwell had been an nia GM. See, e.g., laws. particular ence to state years had many neer GM and Co., Sur. Cas. 294 v. Accredited & knowledge design extensive about Jaffe (4th Cir.2002) 584, (declaring wrongful F.3d GM vehicles. An earlier termi- repug not be judgment will enforced nation suit Elwell GM between Schimmelpenninck, public policy); nant to In re Michigan had been after the dismissed (5th Cir.1999) (to 347, parties stipulated injunc- 3 F.3d permanent 18 enforceable, “foreign laws need not be is made to be them in enforce the United ... identical to the laws the United States. States; merely repug must n A second, important, more difficulty is policies”); nant our laws and Turner that we do not know whether the French GmbH, Degeto
Entertainment Co. v. Film court would hold that Yahoo! is now violat- (11th Cir.1994) (“Gener 1512, 1519 25 F.3d ing its two interim orders. After the comity ... al concerns whether include orders, court entered Yahoo! judgment foreign prejudicial, voluntarily changed policy to comply public of violating policy sense American them, at least some extent: There it is repugnant because fundamental is some reason to believe the French just.”); principles what is decent see court will not on full insist and literal Guyot, also Hilton v. compliance orders, with its interim (1895) 40 L.Ed. (discussing policy that Yahoofs changed may amount principles comity governing enforce to sufficient compliance. foreign ment of judgments). order, its interim second entered on standard, repugnancy Under the Ameri- November the French court found that can courts judgments sometimes enforce Yahoo! France “complied had in large public that conflict with policy American or measure with the spirit letter” of its foreign are based law differs sub- added.) May 22 order. (Emphasis Based stantially from American state or federal on that compliance, level of See, the French Hashim, e.g., law. In re 213 F.3d (9th Cir.2000) was It satisfied. declined to enter (reversing bank- any ruptcy against court’s further English refusal to enforce orders court’s award of million in costs France. It also $10 declined award against debtors had whose assets been fro- expenses France, costs Hussein); zen Saddam Milhoux v. Lin- though even in that same order it awarded der, *16 P.2d 861-62 (Colo.Ct.App. expenses and costs Yahoo!. We 1995) of (affirming recognition Belgian thus know from this second order that a judgment comity, as matter of even compliance “in large by measure” Yahoo! it though 30-year Belgian was based on a very likely satisfactory is to be to the limitations). Inconsistency statute with court, just compliance French large “in necessarily American law is not enough to by measure” Yahoo! France was satisfac- prevent recognition and enforcement of a tory. judgment foreign in the United States. LICRA and insist UEJF that Yahoo! be, addition, foreign judgment The must now, words, has in their “substantially to repugnant public policy. complied” with the French court’s orders. that, take this to We be statement Question 2. Fitness of the view, their complied large Yahoo! has “in Judicial Decision measure” with part, the orders. For its state, the suit in With its current it is however, Yahoo! that it insists continues to difficult to know whether enforcement of inbe serious of the The violation orders. the French court’s interim orders would be district court did hold that not Yahoo! is policy. repugnant public California The violation, otherwise, substantial difficulty first is As indicated by evident. only court’s orders. It wrote French “interim,” the label the French court con- Yahoo! does not to be in full “appear” templated might that it later enter orders. compliance might We cannot know it with the French court’s order modify whether “interim” any attempt respect site, these orders before with to its auction effect, with any, compliance if what continue to be know sites
various anti-semitie have on orders would through yahoo.com. the French court’s accessible only one activi- protected speech-related 1185. There F.Supp.2d at Yahoo!’s authoritatively us tell that can the French emphasize ties. We complied “in terms, has now only Yahoo! by whether their require, orders court’s with the French court’s large measure” mate- on to anti-semitic a limitation access course, is, the interim orders. That in France. by users located rials French court. limit access by do not their terms orders way. Ya- by any users outside France are uncertain that we
To the extent French court that it in the complied “in hoo! contended Yahoo! has about whether distinguish technically French court’s difficult to with the was too large measure” orders, responsibility for that France. the users inside and outside between uncer- door. In its tainty above, laid Yahoo!’s com- can be the French court As described order, the French 20 interim November experts to by three report missioned of one of appointment court ordered if were true. Yahool’s contention determine experts reported had previously who Yahoo!, con- experts disagreed restricting feasibility on technical readily to dis- cluding that Yahoo! is able Yahoo.com. Un- French users to access most users inside tinguish between order, was der November France. outside who be pay expert, would required respect seeking access to users With assignment charged “to undertake sites, two out forbidden auction consultancy condi- report prepare experts concluded Yahoo! could three terms of the tions of fulfillment of the located in identify almost users 90% placed aforementioned order.” has dispute expert France. The third did nothing to tell us whether in the record of such auction site users could that 70% paid expert; whether the Yahoo! has identified, about expressed but doubt expert prepared report has many could be additional such users how court; and, been report if a has seeking respect to users identified. With There also says. what prepared, sites Holocaust' deniers and access to nothing record indicate what oth- apologists, experts declined to Nazi taken steps, any, Yahoo! has to obtain er greater solution which a propose from the French court an indication than located in number 70% users *17 that Yahoo! is in com- whether it believes could France be identified. otherwise, large “in or pliance, measure” court, All of its interim orders. this Yahoo! con- briefing with the terms In its certain that Yahoo! aban- restricting by we know for is that French tends access 22May interim appeal doned its users in a manner sufficient to Internet appeal the Novem- order and declined to satisfy the court would some French order, that on 20 interim and Decem- ber require Yahoo! simulta- unspecified fashion day entry after a month ber by neously to restrict access Internet order, it came home to the second interim This or in the United States. users District of file suit in the Northern Califor- certainly It is almost may not be true. nia. large “in complying Yahoo! true if is now orders, French with the court’s measure” difficulty
A related the sec- third is court will for in that event the French not know whether ond. Because we do certainly that no further com- almost hold complied large “in measure” Yahoo! has orders, necessary. Even if the mea- pliance we cannot with French court’s already has restrict finding sures Yahoo! taken Without a compli further American users to anti- by access Internet ance with French court’s orders would materials, bearing this no semitie has on necessarily result on restrictions access argument. By Amendment by Yahoo!’s First States, users in only the United admission, its Yahoo! taken own has these question in case this is whether California entirely volition, of its own measures public policy and the First Amendment entirely independent reasons require by unrestricted access Internet French court’s orders. words, users in France. other only question would involve a determination
However, it is possible, as Yahoo! con-
whether the First Amendment has extra
tends,
has not
“in
complied
large
that it
application.
territorial
The extent
First
orders,
measure” with the French court
Amendment
protection
speech accessi
and that
require
court would
solely by
ble
those outside the United
possible,
It
compliance.
further
is also
and,
is a difficult
degree,
States
to some
contends, that
compliance
Yahoo!
further
unresolved
Compare, e.g.,
issue.
Desai v.
might
necessary consequence
have
Hersh,
(N.D.Ill.1989)
719 F.Supp.
requiring
by
Yahoo! to restrict
access
(“[F]or
purposes
suits
brought
American Internet users.
Yahoo!
But
has
courts,
United States
first amendment
vague
telling
ways,
been
us in
what
protections
not apply
do
to all extraterri
reasons,
it
what
believes further com-
publications by persons
torial
under the
pliance might
consequence.
have that
Constitution.”),
protections of the
reason
possible
vague-
One
for Yahool’s
Laker Airways Ltd. v. Pan American
might
ness
be
contention is ill-
Inc.,
Airways,
founded,
F.Supp.
explanation
a detailed
(D.D.C.1984) (“It
clear, however,
is less
would reveal that fact.
are not now in
We
whether even American
Another,
pro
citizens are
position
judge
this.
more
specifically by
tected
the First Amend
important,
merely a possible
reason —not
ment with
respect
their
activities
vagueness
reason —for its
abroad[.]”),
Films,
Bullfrog
Inc.
has
way
knowing
no
what further com-
Wick,
(C.D.Cal.1986)
646 F.Supp.
pliance
required
be
might
by the French
(“[TJhere
that,
question
can be no
court.
Until
knows what further com-
(if
overriding governmental
absence of some
pliance
any) the French court will re-
security,
interest
such as national
quire,
simply
cannot know what
(if
protects
First Amendment
communica
any)
effect
compliance
further
might
tions with foreign audiences to the same
have on access American users.
borders.”),
extent as communications within our
possible
point
highly
—but
(9th Cir.1988).
'd,
1219 81, 48, First, Cal.Rptr. 263 447 word Cal.App.3d 215 the used the French court (1989) (“astreinte”) (Wiener, J., dissenting) Re- (quoting is consistently translated as 3); § cmt. see In re in statement 483 also the “penalty” in this case. record For 1239, Marriage Gray, Cal.App.3d 204 example, May provides 22 order (1988). 1253, Cal.Rptr. 251 This is 846 Yahoo! and Yahoo! “subject France are with the 100,000 consistent Restatement’s declara- penalty per Euros day of “[cjourts tion that United are States delay per violation[.]” confirmed The ... required judgments not enforce 20 provides order November Yahoo! is foreign for the [from countries] collection “subject penalty 100,000 to a per Francs ... penalties.” or other Re- ] day delay[J” finest 483; § statement see also 30 Am.Jur.2d Second, the French court held that Ya Execution and Judgments Enforcement of violating hoo! was Section R645-1 of the (2004) (“Courts in § 846 United States Code, French Penal which declares it a recognize not enforce a penal judg- will or “crime” to exhibit display or Nazi em nation.”). A ment rendered another blems, prescribes and which a set of “crim adopted number of have an states identical penalties,” inal including fines. Fr. C. Act, version of Uniform see California’s R645-1, § Pén. available at translation Enforcing Foreign Judgments in the http://www.lex2k.org/ yahoo/art645.pdf. Judg- United States and United States monetary penalties against Yahoo! do (Ronald ed., ments Abroad A. 28-32 Brand “penalties” not lose their character as sim 1992), and the common law against rule they ply because in a were obtained civil penal judgments the enforcement of is Co., action. Wisconsin See v. Pelican Ins. widely-recognized. venerable See 265, 299, 1370, 8 S.Ct. 32 L.Ed. Attrill, 657, Huntington v. 146 673- U.S. (1888). 239 Nor do their lose charac 74, 224, (1892); 13 S.Ct. 36 1123 see L.Ed. private ter because litigants initiated the ah, 18 also James Moore et Wm. Moore’s penal, A civil remedy action. is as the (2002). § Federal 130.05 Practice term is understood international private “ judgments Penal are those ‘to intended law, if penalty it awards a “to a member of an punish public justice offense against suing in public, interest of ” [foreign] state[.]’ Chavarria v. Su- community public whole to redress Court, 1077, perior 40 Cal.App.3d wrong.” Glemp, F.Supp. v.Weiss 792 (1974) CaLRptr. Hunting- (quoting 115 549 (S.D.N.Y.1992); also Loucks v. see ton, 673-74,13 224). 146 U.S. at S.Ct. Co., Oil Standard 224 N.Y. judgment’s test determine a nature (1918) J.). (Cardozo, short, N.E. 198 is not what [on name statute strip remedy “civil” does the label judgment which the is called based] Thus, penal nature. example, for by the or legislature the courts of the American court is not required enforce State which it was but passed, wheth- contempt puni an order of an award of or it appears er to the tribunal which damages tive a civil Frank action. v. Cf. be, upon called to enforce it to in its Reese, (Tex.Civ.App. 594 S.W.2d effect, essential character a punish- 1979) (“Other jurisdictions reluctant are ment of an public, offense full faith and an order give credit to grant right private of a civil to a nature[.]”); due contempt to its punitive person. Republic Philippines Westinghouse Huntington, (D.N.J. Corp., Elec. F.Supp. 1993) (refusing Philippine There are a number to enforce law of indications damages); French judgments penal punitive are in nature. see providing also *20 1220 (“Some for particular a groups § b two student cmt. the
Third Restatement judgments penal pur- injury. consider states multiple, puni- if non-recognition
poses
awarded,
tive,
are
2. First Amendment
exemplary damages
or
a
agency is
governmental
no
even when
argues that
restriction on
Yahoo!
party.”).
speech-related
activities result-
speech
Third,
the French court
penalties
the
is
from the French court’s orders
ing
primarily designed
Yahoo! are
imposed on
the
Amend-
harm under
First
substantial
creating,
from
deter Yahoo!
to
acutely
are
aware that this
We
case
ment.
order, “a threat
November 20
words
Amendment, and
the First
we
implicates
penalties
The
public
internal
order.”
to
to
harm that
particularly sensitive
are
and not
government
to
payable
are
protect-
chilling
result from
effects on
the French stu
designed
compensate
to
In
expressive
ed
or
conduct.
speech
See
losses suffered.
groups
dent
however,
case,
harm to First Amend-
Ma
Merchants Trust Co. v.
Farmers &
harm
interests —if such
exists
ment
deira,
Cal.App.2d
68 Cal.
great
near
may be nowhere
as
all.—
(1968)
that
judg
Rptr.
(suggesting
Yahoo!
Yahoo! would have us believe.
has
punish
is
designed
is
if it
penal
ment
adoption
that its
of a
pains
taken
tell us
“for an
committed
defendant
offense
entry
speech
after the
policy
new hate
justice”
jurisdic
public
against the
mo-
interim orders was
the French court’s
tion).
con
Judgments designed
deter
by
independent of
tivated
considerations
public
threat to the
duct that constitutes a
Further, Yahoo! refuses to
those orders.
penal in
typically
nature.
order are
Cf.
it is
point
anything
doing
now not
Mendoza-Martinez,
Kennedy
do
permitted
but would
if
the orders.
ple, the French court’s orders —even if C. The Ripeness Dissent Addressed is to compliance required by
further —would prohibit from al- only their terms The question dissent addressed to the Kampf Mein lowing copies auctions ripeness principal two makes contentions. users in France. to First, it contends that the French court’s hardship argument The core of Yahool’s interim orders are unconstitutional on may thus be it has a First that Amend- face, their and that further factual devel- by ment allowing interest access users Second, opment therefore needed. in France. Yet under French criminal any if it contends that further factual de- law, providers Internet are service forbid- velopment necessary, we should remand permit to have den French users to access the purpose. to district court that We specified to the materials in the French take these contentions turn. users, court’s orders. French for their criminally are to part, forbidden obtain Unconstitutionality 1. the words, other such access. In as to the French Court’s Orders users, necessarily argu- French Yahoo! is repeatedly The dissent states the ing right that it has a First Amendment to facially court’s interim orders are violate French criminal law and facili- writes, It unconstitutional. “The French tate the violation French criminal law ... orders on their face violate First above, others. we by As indicated plainly contrary Amendment are very extent —indeed the existence—of America’s, one extension Califor- right such an under extraterritorial nia’s, public policies.” most cherished First is uncertain. Amendment (Dissent 1239.) at It later refers “foreign French court’s orders as Summary obviously orders that so violate the First sum, extremely unlikely it is 1239-40.) at It {Id. Amendment.” writes assessed, penalty, could ever be enforced further, absence of a discernible “[T]he against Yahoo! in the United Fur- States. permitted line between the unper- ther, First Amendment harm not ex- facially mitted ... un- makes orders all, given possibility ist that Yahoo! 1244) constitutional.” {Id. complied “in large has now measure” able to dissent is conclude through the French court’s orders its vol- facially French court’s interim orders are untary actions, unrelated to the orders. only by ignoring unconstitutional what Alternatively, if Yahoo! “in large has not orders, they say. appears assume complied measure” with the its vio- dissent orders, face, require lies in fact that it has their Ya- lation insuffi- restricting ac- nothing whatsoever about access United States hoo! block writes, by users in the United States. we face cess question “[T]he users. It *22 own lawsuit is whether our in this federal the French conclusion that The dissent’s guar country’s fundamental constitutional may unconstitutional be court’s orders are speech protects Yahoo! of of antee freedom that assumption in a part on based the (and, derivatively, at its users in least compliance with necessary consequence States) or all of the against some United will be restricted French court’s orders de French defendants have restraints the States. But by access users United upon it within the Unit liberately imposed for the dissent’s conclu- this is basis 1234-1235) (Id. (emphasis at ed States." sion, hardly say that the orders it could Further, original). confront[s] ‘Yahoo! in “on their face.” are unconstitutional by not to the dilemma of whether or stand by restricted access users Whether rights its United States constitutional necessary consequence a United States is of its speech user[.]” and that constrain French court’s orders is factual 1238.) (Id. “Legions permit at of cases question that cannot answer on the we to challenges govern First Amendment record. current their mental actions or decrees on only compliance consequence If the to vague, face are overbroad and threaten the French court’s orders is re- with Indeed, sweep protected speech. chill France, by access Internet users strict just injunction here ing presents such only is that the First argument YahooPs (Id. 1238.) Still paradigmatic case.” extraterritorial effect. Amendment has further, the principles articulated “Under acknowledge that this The dissent fails to today, foreign party foreign can use a part of inescapably a central YahooPs speech to censor free here court decree acknowledge let argument, alone (Id. 1240.) States[.]” the United argument. only YahooPs If it true that the French court’s were by require their terms Yahoo! orders to the District Court Remand States, by users in the United block access dissent con- position, As a fallback and much easier this would be different that we to the tends should remand dis- event, In that would be inclined case. we trict court for a determination whether a See, agree e.g., with the dissent. Sari necessary consequence compliance with Inc., Int’l v. No. Louis Feraud Viewfinder French court’s orders would be restric- 9760, 2005 WL 04 Civ. by access users in the United tion on (S.D.N.Y. Sept. Dist. LEXIS is, This fallback contention States. 2005) contrary (holding unenforceable course, in with the dissent’s conclu- tension damage to the Amendment a French First the French court’s orders are sion posted judgment photographs based on unconstitutional on their face. American freely the Internet accessible consequence compli- necessary If a viewers). But this is not the case. with the French court’s orders were a ance orders, terms, by re- French court’s their users, by on access American restriction only that restrict access quire much be a different and easier this would boundary users in France. The line be- argues The dissent that we should case. permitted permitted what and not tween to the court to determine remand district uncertain for users in France. is somewhat consequence. necessary this is a uncertainty But no about whether there is whether But we cannot obtain determination apply to access users orders say merely by remanding not. to the district court. They They do United States. engage in Before the district court can Conclusion factfinding, it must know whether useful arising First Amendment issues out of extent) (or already has to what new, impor- international Internet use are sufficiently complied with the French tant and difficult. We should not rush to court’s interim orders. There are two al- inadequate, decide such issues based on an ternative scenarios. incomplete or unclear record. We should carefully, proceed awareness
First, if the French court were con- judicial limitations of competence, our clude, contend, as LICRA UEJF *23 this area undeveloped of the law. Precise- “in already complied large Yahoo! has ly novelty, because of the importance and orders, measure” with the French court’s difficulty of First the Amendment issues no simply Yahoo! has First Amendment litigate, Yahoo! seeks to scrupu- we’should argument. explicitly Yahoo! has stated lously prudential observe the limitations on policy entry that its of of change after the power. the exercise of our the second interim order was undertaken Yahoo! entirely providing of wants decision independent for reasons broad protection First speech Amendment for French court’s orders. Under this scenar- speech-related and io, activities on the Inter- question compliance disap- would might net that violate the or laws offend pear, and the district court have would no sensibilities other countries. As factfinding role. framed, currently however, YahooFs suit Second, if the French court were to comes perilously close to a for a request determine, contrary to LICRA and advisory forbidden opinion. There was a contention, UEJF’s that Yahoo! has not dispute live when Yahoo! first filed suit in complied large measure,” question “in court, federal district but Yahoo! soon necessary consequences Ameri- voluntarily changed policy thereafter can users then If and would arise. when comply, in part, with the com- least the French court determines what further mands of the French interim court’s or- compliance necessary, might is there be change policy may or may ders. This appropriate factfinding some role for the suit, not have YahooFs mooted federal but question. district court on that But even it has at come least close. Unless and scenario, under to get we first need changes again, until Yahoo! its policy determination from the French as to thereby clearly more the French violates compliance necessary, what further is orders, is much court’s it unclear how is the district role factfinding court’s is de- actually dispute. now on pendent having prior there be'en such It is possible because of YahooFs by determination the French court. voluntary change policy it now com- has scenario, Under either the essential ini- “in plied large measure” with the French step tial is to find out from the French It possible court’s orders. is also complied court whether Yahoo! has “in complied “in mea- yet large has not orders, and, not, large with its measure” compliance required, If sure.” further compliance required. what further Un- to impose Yahoo! will have further restric- that, til we know district court cannot by tions on access users. perform any factfinding useful on the necessary further consequence such re- necessary question whether conse- may may strictions on French users or not compliance quence of with the French have restric- impose be Yahoo! will by court’s orders will be to restrict access tions on American access users. Until Internet in the United further users States. we know whether restrictions Instead, I believe that American, Yahoo!’s suit. French, possibly
access properly exercise District did not Court we cannot decide required, are users jurisdiction over defendants personal degree the First to what whether or have from decid- and also should abstained by enforce- might violated Amendment be suit claims. Yahool’s should ing Yahool’s orders, court’s the French ment of dismissed, therefore, either under Rule be re- enforcement would whether such 12(b)(6) 12(b)(2) Federal or Rule policy. We do public pugnant to California Rules of Procedure. Civil are not further restrictions know whether be, they might because and what required, I. to ask the French has chosen not properly not ex The District Court did Instead, has to come chosen court. Ligue personal jurisdiction over La ercise judgment declaratory for a to ask home L’Antisemitisme Contre Le Racisme et French court’s orders —whatever (“LICRA”) and des Etudiants L’Union may they may require, and whatev- (“UEJF”). France LICRA Juifs de questions er Amendment First *24 “expressly aimed” at suit was not UEJF’s present in may not unenforceable —are the under “effects” test of Calder California the States. United Jones, 783, 789-90, 104 S.Ct. v. majority of the en banc eight-judge An (1984),which, agree I L.Ed.2d holds, II of explained as Part this panel Fletcher, and governs this case Judge with properly opinion, that the district court applied the appropriately to jurisdiction specific personal exercised French court orders. over LICRA UEJF under defendants exclusively at a An act aimed intentional plu- three-judge A the criteria Colder. state, than location other the forum which concludes, explained panel rality of forum plaintiff results in harm a that the suit is opinion, Part III state, “express aiming” satisfy does decision under the criteria of unripe for requirement under Schwarzen- Colder. votes of Laboratories. When the Abbott Co., v. Fred Martin Motor 374 F.3d egger judges the three who conclude (9th Cir.2004), an Ohio car dealer unripe suit are combined with votes in the Akron Beacon ran advertisement con- dissenting judges three who. Arnold that featured Schwarzen- Journal personal jurisdiction there clude that is no first egger as “the terminator” without UEJF, are six over LICRA and there seeking permission. Schwarzenegger’s to dismiss Yahool’s suit. votes advertisement, though held that We RE- therefore REVERSE and We Schwarzenegger, a wrongfully depicted to-the district court with instruc- MAND resident, aimed expressly “was California prejudice. dismiss without tions to at at rather than Id. Ohio California.” aim “express 807. Because dealer’s FERGUSON, Judge, with whom Circuit local,” juris- the district court lacked was TASHIMA, Circuit O’SCANNLAIN Schwarzenegger’s com- diction to hear I, join respect Part Judges, Co., Id. Dole Food Inc. plaint. Cf. concurring judgment: (9th Cir.2002) Watts, 1104, 1112 303 F.3d judg- I the District concur Court (finding defendants “ex- European California, ment in favor of Yahoo! should be reversed at the forum pressly aimed” dismissed, so state, directly and the case but I do based they since “communicated forth managers on reasons other than those set to [fraud- with Dole’s California ulently] sig- I lack ... to enter into majority. do not believe that induce them ar- ground nificant and detrimental contractual ripeness proper is the to dismiss Masters, which rangements”); & Inc. v. the title content constitutes and/or Bancroft Nat’l, Inc., F.3d threat to Augusta public internal order.” (emphases Cir.2000) added). (9th (deciding defendant’s expressly was aimed at Califor- “letter There is no evidence whatsoever that nia!,]” state, the forum it individ- “because LICRA and UEJF had intention Masters],
ually targeted & [Bancroft expressly aim their suit at California. The doing corporation California business al- majority believes that because the effect California”). exclusively in most the French court orders was for Yahoo! to perform majority significant California, acts in ex- provides one-sentence press part why aiming on the explanation LICRA UEJF’s LICRA and Maj. UEJF was expressly op. “obvious.” suit was aimed California: But the sought, recognize French fails “The suit and the court what Schwarzenegger granted, express orders makes clear: directing per- aim- ing requires significant form acts in intentional conduct Maj. party California.” directed at the forum op. at 1209. state. LICRA and UEJF are two anti-racist French civil lib- That is not true. LICRA UEJF’s organizations. erties global is a sought suit orders directing Internet service. At the time LICRA and perform Yahoo! to significant locally acts suit, brought UEJF their could not France, not in The May California. known precisely have YahooFs server “[B]y 2000 interim permit- order declares: locations, security capabilities, or technical tingfanti-Semitic] objects to be viewed in *25 or, procedures important, they more how and allowing France surfers located in relate to opera- YahooFs California-based to in a participate display France such of tions. LICRA and UEJF had one aim sale, items for the Company Inc. prevent and one aim only: to French citi- a committing wrong is therefore in the zens from using ‘Yahoo.fr” and ‘Ya- France, territory wrong whose unin- of illegal hoo.com” to access anti-Semitic hate tentional character but is averred which in They merchandise France. plain- were damage has caused to suffered LI- be ly concerned with YahooFs actions within UEJF, CRA and both of whom are dedi- France, regardless of where those actions combating promotion cated to all of forms emanated from. added). (emphases in of Nazism France.” may “It that be true and [LICRA law, comply To with French UEJFj’s eventually intentional [suit] prevent would need “to surfers calling California, harm caused and [Yahoo!] France from these viewing [anti-Se- from may and have known that [LICRA UEJF] computer screen”; services on their mitic] [Yahoo!] [was based] California. But identify “to geographical origin the of a jurisdiction, this does not confer for [LI- address, visiting site from caller’s IP the UEJFj’s express CRA and aim was local.” prevent which should enable it to surfers Schwarzenegger, F.3d at 807. 374 from calling accessing France ... from which[,] and displayed services sites when II. [,] on a screen installed in France ... is The District Court should have also ab- hable to be deemed an offence France from deciding stained YahooFs claims. manifestly to constitute a unlawful and/or law]”; The common act of state doctrine law [under trouble “to take specifies: all impos- measures to dissuade and make calling
sible
access
Every
surfer
is bound
foreign
respect
state
from
disputed
every
France
sites
services of
the
of
independence
other sover-
brought
country-
Philippines
suit
state,
Republic
of
of
and the court
one
eign
of the Mar-
Philippines seeking forfeiture
acts of
on the
judgment
will not sit
they
ground
assets on the
cos estate’s
another,
of
done within its
government
Philippine
from
by Marcos
were stolen
grievances by
territory.
own
Redress
at 771.
government
people.
Id.
acts must be obtained
reason of such
Supreme
agreed
Court
Philippine
open to be availed
through the means
ordered
Republic
Philippines
them-
by sovereign powers as between
Philippine
forfeited to the
the assets
selves.
court
Id. A federal district
Government.
Hernandez,
250, 252,
Underhill v.
Hawaii, however,
Philip-
ruled
(1897).
83,
criminal The record makes enforce French provisions clear, against criminal for that LICRA and anti-Semitism. example, opinion Justice Gomez’s sets forth the litigated the assistance of Mr. UEJF judgment moral of France itself. Dillange, Deputy First Pierre Prosecutor representing the office of the Public Pros Third, the French court orders reflected County to the Court Paris. Dil ecutor judicial of a enforcement robust French fact, lange, to the “demand[ed]” policy against racism, state xenophobia, reality court French “that of the and anti-Semitism. France has acceded by damages suffered [LICRA UEJF] the International Convention on the Elimi- recognised.” Prior to the issuance of nation of all Forms of Racial Discrimina- orders, Dillange publicly court French (ICEFRD) (1965) tion and the Internation- condemned the sale of Nazi memorabilia al on Covenant Civil and Political Rights calling Yahoo.fr and Yahoo.com for (ICCPR) (1966), both which pro- include injunction” against “constraints and ICCPR, See speech. visions racist litigated 'Yahoo!.2 LICRA and UEJF 4(a). 20-2; ICEFRD, Art. Art. Since their claims accordance with the de II, World War France has introduced public prosecutor. mands French sweeping legislation to combat anti-Semi- Pléven,” July passed tism. 1972 it “Loi Second, justice Jean-Jaeques which a range criminalized of racist behav- expressly recognized Gomez his court ior provocation from racial defamation and compelling orders interest France to violence, July to racial hatred and country rid its of anti-Semitic merchandise passed 1990 it “Loi Fabius-Gayssot,” speech May within its borders. In his speech which criminalized that denied the order, interim example, he existence of the Holocaust or that celebrat- largest called Yahoo.com “the vehicle Act, Symbols ed Nazism. Nazi which promotion existence Nazism” [of] guilty Yahoo! was violating, found en- and described the commercial sale of Nazi compassed France’s earlier dramatic ef- objects as “an affront to the collective forts to racist speech criminalize within its memory country profoundly trauma- borders. tized atrocities committed and in regime
the name of the criminal Nazi
apparent
It
then that
the French
against its citizens.” Access to Nazi mem-
merely private judg
orders were not
*27
but,
fact,
orabilia
Yahoo!’s auction sites “consti-
in
ments
reflected the sentiments
public
threat
to internal
order”
organizations,
tute[d]
of
French
two
civil liberties
indeed,
in
“wrong
territory
and,
and a
the
of
public
France.”
the French
prosecutor,
Court,
Supreme
Like the Philippine
They
the France itself.
of
were acts
state.3
Reuters,
upon
confers
French anti-racist
2.
associations
"Paris Prosecutor Condemns Nazi
Yahoo,”
May
Auctions on
party”
official "civil
status
such
available
in
matters.
http://www.icare.to/archivemay2000.html.
The French text of
law is referenced at:
http://www.culture.gouv.fr/culture/infos-pra-
noting
3.1 It
also
French
is
worth
court
tiques/
droitculture/cinema/pdf/l-290781 .pdf;
judgments
orders were final criminal
that Ya-
Bleich,
see also Eric
Race Politics
In And
appeal through the
hoo! elected not to
French
Policymaking
Ideas
France:
And
Since The
Instead,
system.
brought
court
(2003).
1960S 135-39
present declaratory relief
for a U.S.
action
court
district
to invalidate the
orders based on a violation of Yahoofs First
state,
forum
Jose,
of the
and benefits
tections
Judge sitting in San
District
The
activities
his
“purposefully directed”
authority to have
not have
did
California
state,
light
in
must be read
forum
have
into the
and should
these orders
guess
second
in Mil
admonition
Supreme Court’s
He
invalidating them.
from
abstained
Meyer, 311 U.S.
liken v.
Executive and
to the
have deferred
should
(1940),
of
that the exercise
L.Ed. 278
conse
foreign
Congress to assess
comport
must
with
jurisdiction
personal
policy
broad
of France’s
quences
and sub
play
notions of fair
“traditional
See Siderman
speech.
hate
anti-Semitic
463,
Our sovereign power the extension of pro- himself of the render availed” “purposefully Rights, Democracy, doing, Human right. Yahoo! here Bureau In so Amendment State, Report Labor, losing essentially party Dept, On Global no different than 5-6, 2005) (dis- his or (January court who seeks to vindicate in state 13-15 Anti-Semitism, *28 rights by challenging adverse her federal anti-Semi- cussing efforts to combat France's judgment in federal district court. state court 2004, 16, tism). President On October oppor- Supreme such The Court has barred signed law the Global George W. Bush into relitigation attempts at under tunistic Act, Pub.L. No. 1OS- Anti-Semitism Review doctrine. See Exxon Mobil Rooker-Feldman 332, report, the 2005 which authorized Coip., 544 U.S. Corp. v. Saudi Basic Indus. of its kind. first 1517, 1521-22, 280, L.Ed.2d S.Ct. 161 125 (2005). just, notwithstanding physical his lack of consistently held that this kind of fore- presence there. seeability is not a “sufficient bench- mark” exercising personal jurisdic-
A
Instead,
tion.
foreseeability
that is
jurisdiction
personal
requirement
critical
process analysis
to due
is that
merely
procedure;
a rule of civil
it is a
the defendant’s conduct and connection
powers
constitutional constraint on the
of a
with the
State are such that he
forum
State,
courts,
as exercised
in favor of
should reasonably anticipate being ha-
process rights
the due
of the individual.
led into court there.
Capital Int’l v.
See Omni
&
Rudolf Wolff
Rudzewicz,
Burger King
462,
v.
471 U.S.
Co.,
97, 104,
404,
484 U.S.
108 S.Ct.
474,
2174,
(1985)
105 S.Ct.
considerations so the Court has a libelous in Cali- *29 on this of Calder majority’s interpretation celebrity, they a California fornia about point. in court California haled into would be And in behavior. for their tortious
answer
A
defendants’
the
Burger King, because
of Florida
the State
ties with
business
Calder,
reading of
majority’s
the
Under
protec-
and
by the ‘benefits
“shielded
were
in a
jurisdiction
giving
personal
rise to
acts
”
laws,
“presump-
it was
of Florida’s
tions’
wrongful.
not be
case need
non-contract
require [them]
unreasonable to
tively not
(“[W]e
not read Calder
Maj.
at
do
op.
litigation
of
to the burdens
to submit
require
purposeful
di-
necessarily to
at
105 S.Ct.
as well.”
[there]
(or
any) juris-
that all
even
rection cases
of
out the limits
These cases stake
2218.
have been
dictionally relevant
effects
by the
jurisdiction
approved
personal
acts.”). That conclu-
by wrongful
caused
Supreme Court.
language
the
is undermined
sion
beyond
actions lie
and UEJF’s
LICRA’s
majority to
requires
the
itself
Calder
carried
party
limit. Neither
has ever
holding from its fact—
that case’s
divorce
activity through
any
other
Calder,
on business
In
the
always a
exercise.
dubious
themselves of the
they have availed
which
a decision that
affirmed
Supreme Court
of California’s
protections
benefits and
juris-
that a valid basis
had “concluded
laws,1
party
either
have reason
nor should
theory
petition-
diction existed on
haled into
that it would be
ably anticipated
to,
did,
cause tortious
ers intended
legiti
for the
to answer
court California
injury
respondent
in California.” Cald-
rights in France.
added).
mate exercise of its
er,
(emphasis
II in an primary participants are petitioners intentionally directed wrongdoing primarily alleged This case was reheard en banc resident, jurisdiction is at answering question a California purpose for the (empha- on that basis.” Id. underlying proper action in a non- whether added). wrongfulness of the de- sis tortious or other contract case must be therefore, was, key ele- fendants’ acts justify the exercise wrongful wise calculus, jurisdictional possibly “ex ment in the jurisdiction, or whether the personal has committed a action, person because a who regardless press aiming” haled into wrongful expect act should Although the res culpability, will suffice.2 in the victim’s home my his victim question does not affect olution of have Although might the Court cannot exercise State. that California conclusion ques- if the act in reached the same result jurisdiction over LICRA or personal majori- wrongful UEJF, tion had not been respectfully disagree I —as (9th Cir.2000), panel mailing 223 F.3d agree majority that the 1. I with the good cease and desist letters and the faith of that its decision relied on made it clear Office to use of the United States Marshal’s engaged assumption had that the defendant process of documents related effect service of Sneed, Judge writing for a tortious conduct. legal proceedings not suffi- are to the French ”[j]u- panel, further held that Maj. op. jurisdiction. cient bases for ripe would be for chal- risdiction in California 1208-1209. following development lenge of trial it reasonably appear acted "should that ANI by majority, Although ignored the fact is good protect faith to its trademark question law in bur circuit this was settled J., (Sneed, concur- infringer.” Id. at 1089 prior appeal being reheard en banc. Inc., Masters, ring). Augusta Inc. v. Nat’l & Bancroft *30 it ty apparently presumes would—it the State.” 504 at U.S. 112 S.Ct. proceed reckless of us to the basis of And, in Burger King, the Court speculation beyond currently such what is jurisdiction held that proper was on the personal jurisdiction the farthest reach of grounds that defendants’ business ties approved by the Court. with the State of Florida were “shielded ” protections’ the ‘benefits and of Florida’s B laws. 471 at In S.Ct. 2218. majority’s jurisdictional legerde- contrast, sharp every “purposeful di- but, trick, any main is nimble like does not rection” case that the majority cites in its up scrutiny. begins stand to close It in- opinion involved tortious or otherwise nocuously enough by noting that the tradi- wrongful acts the defendants. analysis tional minimum contacts de- pends disputed on whether the act sounds Given our long precedent line of apply- cases, in tort or in contract. In tort “we ing “purposeful only availment” test typically inquire whether a ‘pur- defendant cases, contract and commercial and the posefully his direet[s] activities’ the fo- majority’s concession that this case should state,” maj. op. rum at 1206. inAnd com- analyzed under “purposeful Calder’s di- cases, mercial and contract “we typically test, maj. rection” see op. at inquire ‘purposefully whether a defendant majority’s conflation of the elements privilege avails itself [sic] con- these two tests is an unseemly judi- act of ducting activities’ or ‘consummate[s][a] slight cial of hand. LICRA and UEJF transaction’ in the forum.” Id. and do not are, indisputably, non-commercial actors require that the defendants actions be purposefully who have never availed them- However, wrongful. traditional dis- selves of the benefits or protections of jettisoned tinction abruptly when the Therefore, California’s laws. Cold- neither majority any person- next asserts that “in er nor Supreme other precedent Court jurisdiction al case we must evaluate all of justifies California’s assertion of personal a defendant’s contacts with the forum jurisdiction over them. state, whether or not those contacts in- wrongful activity by volve the defendant.” added). (emphases
Id. at 1207
Ill
is,
majority’s
statement
quite liter-
LICRA’s and UEJF’s actions and con-
ally, unprecedented.
a stroke of
With
were,
tacts with the State of
California
pen,
majority
analysis pre-
extends the
most,
legitimate
incidental to the
exercise
viously applied only to commercial and
rights
They
their
under French law.
contract cases to all
personal
assertions of
reasonably
should not have
anticipated be-
jurisdiction. Tellingly,
only
cases that
ing haled into court in
California
answer
in support
musters
of its nov-
prosecution
their
of a
lawsuit
el assertion are commercial or contract-
France. Because California’s exercise of
“purposeful
related
availment”
cases.
personal
jurisdiction over them on that
Quill
Dakota,
Corp.
North
basis would violate traditional notions of
(1992),
112 S.Ct.
Thus, from its I must dissent while of for the exercise conclu- basis tionale, majority’s in the are an insufficient I concur must opinion jurisdiction over defendants. the district court’s personal sion that -1209. Maj. op. be reversed. at 1207 on, however, to find a majority goes The TASHIMA, whom Judge, with Circuit personal of for the exercise basis sufficient O’SCANNLAIN, Circuit FERGUSON and in two interim over defendants jurisdiction judgment: concurring in the Judges, join, court because by the French orders issued reversing and judgment I concur to take “direct[ed] orders those to dismiss remanding with instructions California, threat of a sub on actions action, majority’s the I dissent from but major Id. at 1209. penalty.” stantial jurisdiction exists personal conclusion that any not based on contact ity’s conclusion is Le Racisme et Ligue La Contre over California, acts which it con but on (“LICRA”) and L’Union L’Antisemitisme aimed at the forum “expressly tends were (“UEJF”). de France des Etudiants Juifs Schwarzenegger v. (quoting Id. state.” Judge in Part I of I concur therefore Co., F.3d Motor Fred Martin opinion a dis- Ferguson’s concurring —that Cir.2004)). (9th Schwarzeneg But neither cannot ex- trict court located California on the nor other case relied ger jurisdiction over LICRA personal ercise juris specific of majority finding based a and UEJF. expressly aimed at the diction on conduct district court I believe that the Because conduct was not also a forum state which I jurisdiction, would personam lacked in Here, state. contact with the forum in Part III reach the issues discussed not time, majority completely the di the first majority opinion1 ripeness—and of the — conduct from expressly-aimed the vorces concurring Judge Ferguson’s Part II of that that conduct also be requirement the jurisdic even if it had opinion whether, — Thus, I forum state. a contact with the defendants, the district court tion over the juris finding personal submit that deciding this abstained from should have “effects” diction on the basis Calder’s2 however, believe, Judge I case. do of this case is a in the circumstances test in Part II Ferguson’s eloquent discussion extension of that doctrine. radical why hold that of the reasons he would why proper supports is further abstention that the orders are It is self-evident jurisdiction lacking this case. personal court, not of the French acts orders Thus, ma- precisely, more defendants. (“defendants”) had and UEJF LICRA is, jurisdiction finding personal jority’s These only three contacts with California. fact, peti- and UEJF based LICRA letter, a cease and desist contacts were under the French court for relief tioning the French process service of to commence petitioning by law. But should the action, subsequent service two or her own of the courts of his citizen was interim orders on Yahoo!. Service country the laws of country uphold requirements made in accordance with the jurisdiction personal form the sole basis of the service Hague Convention on foreign courts of a ma- that citizen judicial As the over abroad of documents. majority although that controls opinion by Judge that is not the authored 1. I refer to disposition the case. "majority opinion,” be- W.A. Fletcher as of the en banc cause it commands 789-90, Jones, 2. Calder personal jurisdiction, court on the issue of (1984). 79 L.Ed.2d yes. fendants in country? majority’s petitioning answer for French anti answer, me, perverse. upheld. That seems to be Semitism laws It was First, prosecuting of an bringing defendants who determined the terms and relief, are all acts done injunctive action in a French court scope nor was it defen None of acts con- wholly in France. these dants who determined that continuing *32 with California. stitutes a “contact” Sec- non-compliance “subject should be to a ond, safely can any country no citizen of penalty,” penalty. or the amount of such a foreign majori- a under the sue defendant say, Needless to will defendants not be jurisdiction ty’s specific theory because the ones who decide whether such penal judgment, including an ordi- sought the ultimately ties will paid have be or nary money injury for or judgment dam- waived.3 ages, have an adverse on the will “effect” Whatever other conduct Calder’s “ef in that purse treasury defendant’s or de- fects” test was intended it encompass, sense, country. fendant’s home In this surely was not intended to include attribu every naming a defendant foreign lawsuit tion the of an intervening effects court’s expressly can be said to be aimed at that order when a citizen no does more that nation). (or Thus, defendant’s home state a petition court his country own unless it is anchored to a contact with the law, relief under particularly domestic a
forum, aiming a express meaning- becomes case, this, such as in which defendants process. less in terms of due test have had no “provide contact that would a Moreover, courts, acting even when jurisdiction.”4 Maj. sufficient basis for op. private petitioner, the of a have an behest reasons, at 1208. For these additional I independent obligation up- interest concur in of Judge Ferguson’s Part I con laws, particu- hold their nations’ domestic curring opinion. when, here, larly as those laws are de- FISHER, Judge, Circuit with whom signed carry an important out HAWKINS, PAEZ, BEA, Thus, CLIFTON and strongly-held policy. national as Judges, join, concurring in us, part Circuit Judge Ferguson reminds is the part:1 dissenting manner in which the French courts have determined to vindicate French national I. Overview policy “state action”—that has the —that simply, Stated the issue before us is adverse “effect” California about, complaining not acts of whether a States Internet service the de- United Indeed, any penalties paid, 3. are ever that conduct LICRAand UEJF which takes defendants, place entirely a will not redound to the benefit of in France can classified as payable government.” Maj. but "are “contact” with California. op at 1220. Tashima, Judge Judge 1. Like we refer to majority opinion opinion "majority” 4. What the calls "third Fletcher’s contact,” ("However, eight-judge maj. op. "majority opinion” because contact, joins conjunction majority of banc II of third considered in the en court Part two, jurisdic- provide opinion personal issue of [sufficient] first does such on the Judge personal jurisdiction].”), As per basis tion. curiam and Fletcher's [for however, Judge majority opinions explain, "contact” with California at all. The Fletcher’s "[t]hird, important ripeness III as the articulated in Part classifies and most rationale [contact], three-judge plurality opinion represents a LICRA and UEJF have obtained his two from and does not command a of the en interim orders the French court California, Nevertheless, Judge directing Yahoo! to take banc court. we refer to actions in "majority” through- penalty.” opinion as on threat of a Id. at Fletcher's substantial authority proposition cites no out our dissent for ease of reference. It for the it, is to take proper recourse For Yahool’s content has published whose
provider,
agree.
cannot
injunc
to France. We
court
its case back
foreign
restricted
been
federal
tion,
States
may look to
United
readily
court
concluded
the district
As
enforceability of
to determine
courts
States
opinion,
United
thoughtful
“[a]
the United States
under
those restrictions
not make such
constitutionally could
Amendment.
First
Constitution’s
Yahoo!,
Ligue
Inc. v. La
Con
an order.”
by sub
injunctive orders —backed
L’Antisemitisme, 169
Le Racisme et
tre
stantial,
monetary penalties
retroactive
(N.D.Cal.2001)(here
1181, 1189
F.Supp.2d
to block
noneompliance require
II”).
—
found
specifically
It
“Yahoo
inafter
territory to Nazi-relat
from French
access
general
“far too
orders are
that the
prohib
Some
on its website.2
ed material
scrutiny re
the strict
to survive
imprecise
*33
identifiable, such as
readily
content is
ited
Amendment,”
that
First
and
by the
quired
Kampf
Mein
copies
or
of
artifacts
Nazi
necessary
‘all
measures’
“[pjhrases such as
however,
impose
Much,
not. The orders
instruct Yahoo! to
impossible’
and ‘render
sweeping mandate:
following
impermissibly
that
efforts
will
undertake
Inc.
YAHOO!
Company
order
We
protected
even censor
perhaps
chill and
to dis-
necessary measures
to take all
II,
F.Supp.2d
169
Yahoo
speech.”
any access
impossible
and render
suade
Airport Comm’rs v.
(citing Bd.
1189-90
auc-
Nazi artifact
Yahoo.com to the
via
Jesus,
569, 107 S.Ct.
482 U.S.
Jews for
site or
and to
other
tion service
(1987);
Gooding
2568,
500
and
96 L.Ed.2d
as consti-
may
that
be construed
service
Wilson,
518,
1103, 31
405 U.S.
92 S.Ct.
v.
Nazism or a con-
tuting
apology
an
(1972)).The district court em
L.Ed.2d 408
crimes.
testing Nazi
“
Amend
that
loss of First
phasized
‘[t]he
added.)
In
First
traditional
(Emphasis
freedoms,
periods
minimal
ment
even
terms,
injunctive man-
Amendment
time,
irrepa
unquestionably constitutes
”
prior
restraint on what
date is
(quoting
Id. at 1190
Elrod
injury.’
rable
(or
to) on its U.S.-
may post
control access
Burns,
96 S.Ct.
v.
imposed
principles
under
located server —
(1976) (citing
New York
49 L.Ed.2d
facially vague
French law and
such
States,
v.
Times Co. United
majori-
terms that even the
and overbroad
(1971))).
L.Ed.2d
further restric-
ty does not know “whether
not whether the French
The issue is
French,
possibly
by
on access
tions
injunctive or-
who obtained the
defendants
American,
required”
comply
are
users
ders,
French court
issued
or the
1223.)
(Op. at
with the French orders.
them,
justified
trying
suppress
are
with
hope
comply
Yahoo! can either
recognize
speech.
hateful
We
course
(and
the defendants
what the French
the Holocaust and the
the horrors of
here)
content
inappropriate
deems to be
anti-Semitism,
un-
and France’s
scourge
material
attempting to block
access
protecting
its citi-
derstandable interest
the orders cover or
sim-
Yahoo! thinks
glo-
would defend or
zens from those who
content al-
removing any questionable
ply
the issue one of extra-
rify either. Nor is
ignore
Or Yahoo! can
together.
of the First Amend-
application
territorial
part
or in
French court’s mandate whole
ment; it is the extra-territorial
anything,
accruing
the risk of substantial
accept
however,
of French law to the United
majority,
application
unmoved.
fines. The
by typ-
U.S.-based server
recognizes, any
access to Yahool’s
Internet
2. As the
through
linking
ing
territory
into her browser
a French
user in France or
—whether
1202.)
(Op.
<fr.yahoo.com>.
gain
citizen or resident —can
or not French
question
validity
resolve them. But
uncertainty
We do not
there is no
States.
soil,
on French
the French orders
imposed
the mandate
on Yahoo! is
the orders as
complied
Yahoo! has
based,
identify
also content
and the orders
<fr.yahoo.com>
they relate
website.
that content in terms that on their face are
we face in this federal
question
Rather the
vague. They
overbroad and
require Ya-
country’s
whether our own
fun
lawsuit is
hoo! to guess what has to be censored on
guarantee
damental constitutional
of free
its Internet services here in the United
(and,
speech protects
dom of
deriv States,
monetary
under threat of
sanction
atively, at least
its users in the United
guesses
if it
wrong.
respect,
States) against some or all of the re
facially
orders are
unconstitutional.
straints the French defendants have delib
terms,
By
“any
their
reach
orders
erately imposed upon it within the United
other site or service
addition to
[in
“
speech
States.
restraints
‘[P]rior
auction
service]
construed as
are the most serious
publication
and the
constituting
apology
for Nazism or a
infringement on
least
tolerable
First
contesting of
(Emphasis
Nazi crimes.”
”
—
Cochran,
rights.’ Tory
Amendment
added.) As
rightly
the district court
un-
U.S.-,-,
125 S.Ct.
derstood, this is the crux of YahooFs facial
(2005) (quoting
L.Ed.2d 1042
Neb. Press
*34
vagueness
overbreadth and
concern:
Stuart,
Ass’n v.
U.S.
96 S.Ct.
protection
Yahoo! seeks
its actions
(1976)).
2791,
domestic
(And
dilemma Yahoo!
if not so limit-
the central
ty concedes
France-based users.
worse.)
ed,
majority
injunction.
much the
Yet
a result of the French
so
faces as
Yahoo! itself—
independently
faults Yahoo! because—like
not
Yahoo! does
“[W]hile
activi-
know
its current
fully
we do not
whether
comply more
steps
to take
wish
at
(Op.
the orders.
permitted
ties are
orders, it
court’s
states
with the French
1216.)
Amendment
apply
This is to
First
subject to a
may
that it
be
that it fears
ma-
exactly
As the
backwards.
precedents
(and increasing) fine if it does
substantial
admits,
boundary line between
jority
“[t]he
1210.) Acknowledging the
(Op. at
not.”
permitted
not
is
permitted
what
injunction, the
chilling effect of the
obvious
for users
France.”
somewhat uncertain
if the
majority recognizes
“[e]ven
1222.)
circumstances,
such
(Op.
Under
not enforced
French court’s orders are
law,
speaker.
we blame the
Yahoo!,
very
of those
existence
Instead,
majority effectively imposes
to cast a shadow on
thought
orders
on Yahoo! to
requirement
an exhaustion
policy.”
Yahoo!’s current
legality
France,
confirm
litigate this issue
1210-1211.)
(Op. at
compliance
not in
with the orders
is still is
unfortunately
majority
then
But
22May
and Novem-
(just as it was not on
short, concluding that the “level of
stops
2000)
“final”
and obtain a
adverse
ber
is not sufficient
Yahoo!]
harm [suffered
majority will consider
judgment before the
uncertainty
to overcome the factual
bear-
so,
majority
ripe.
doing
case
presented and
ing
legal question
on the
on a
imposes
heightened
standard
thereby
ripe.” (Op.
to render this suit
its First
plaintiff seeking to vindicate
1221.)
respect, the
creates
With
plaintiff
rights
Amendment
when
own factual dilemma—and bad First
*35
its
challenging
foreign prior
restraint.
precedent
attempt
its
Amendment
—in
(or comity)
ripeness
do not
Principles
holdings
per-
its
on
daylight
find
between
extraordinary
The
require this result.
jurisdiction
ripeness.
agree
sonal
We
majority creates are inconsis-
hurdles the
test,
that the
“effects”
see Schwar-
Calder
jurisprudence
our
tent with
established
Co.,
zenegger v. Fred Martin Motor
country’s
tradition of free
protecting
(9th Cir.2004)
(citing
F.3d
Calder
See, e.g., City
Lakewood v.
expression.
Jones,
465 U.S.
Co.,
Publ’g
Plain Dealer
(1984)), need not be satisfied
L.Ed.2d 804
755-56,
2138,
In
court—
court found on
finding
and in
an much of what the district
tion over the defendants
below,
litigated
application
speech
the record as
and remov-
of free
doctrine to final
process
from
ing the district court
of orders that on their
vague
face are
majority
True,
factual
resolving the
issues the
overbroad.
the defendants must
to Yahool’s
now finds so vital
First
steps
take
in the French court to initiate
claims. Accordingly,
al-
enforcement,
Amendment
actual
subject
but Yahoo! is
in that
ma-
though
part
we concur
to the orders and to a retrospective finan-
jority’s opinion upholding personal and
penalty
cial
noncompliance.
for
The ma-
jurisdiction,
III
respectfully
Article
we
jority’s argument
give
we should
holding
dissent from its ultimate
that this weight to the label “interim”
it
because
adjudication.
ripe
case is not
for
indicates that “the French court contem-
plated that it might enter later orders” is a
Ripeness
II. Prudential
1215.)
make-weight.
(Op.
may
A court
majority
prudential
ripe-
invokes
contemplate issuing subsequent orders
ness because it finds Yahool’s circum-
prior
subject
whether or not a
order on the
from “prematurity
stances suffer
and ab-
is called “interim” or “final.” We need not
preclude
reaching
stractness” that
our
“interim,”
distracted
the label
be-
injunction
Yahool’s claim that the French
cause,
found,
as the district court
“there is
on its face violates the First Amendment.
dispute
no
that the French order is valid
1211-1212.)
(Op. at
As did the district
under French law and that
the French
court, we conclude otherwise.
fix
penalty
Court
retroactive to the
II,
date of the order.” Yahoo
judicial
A. Fitness
the issues
reso-
F.Supp.2d at 1190.
lution
involving
Cases
far less definitive or tar-
A “purely legal” question
geted
yet
enforced
mandates —not
holds this case unfit for
complaining party
been treated
—have
judicial
by suggesting
resolution
ripe
adjudication.
as final actions
“purely legal” question,
does not involve a
Laboratories,
Abbott
majority’s
one of the
Gardner,
Abbott Laboratories v.
cases,
lynchpin
drug manufacturers chal-
87 S.Ct.
To this case very purpose Declaratory Judgment straight-forward legal question: involves a 152, Act to Id. at 87 injunction whether the French ordered ameliorate.” S.Ct. against Yahoo! runs afoul of the 1507. The Court cited the district court’s First “ ‘must com- legal finding petitioners Amendment. The answer calls for a either
1238
injunction
pres
deed,
here
sweeping
... or
changeovers]
the label
ply [with
See,
paradigmatic
a
case.
just
such
present
their
course
ents
they must follow
”
Campaign v. New
that the
to Travel
e.g.,
and concluded
Freedom
prosecution’
risk
Cir.1996)
(9th
comb,
1431,
criminal
1434-35
risk serious
82 F.3d
latter “course would
distri
defense to a facial
(rejecting
ripeness
for the unlawful
a
penalties
civil
Id. at 152-
travel restrictions to
drugs.”
attack on blanket
bution of ‘misbranded’
53,
Frozen Food
Fifth Amend
1507. See also
the First and
87 S.Ct.
Cuba under
States,
40,
ments,
351 U.S.
43-
had
though
plaintiff group
v.
Express United
even
(1956)
569,
license,
L.Ed. 910
44,
because the
applied
76 S.Ct.
for a
never
an Inter
justiciable
challenge
to
(holding
see
purely legal questions);
presented
case
rule because
Commission
state Commerce
v. Nationalist
Forsyth County, Ga.
also
by criminal
punished
Movement,
123, 129-30,
violations could
112 S.Ct.
505 U.S.
cause
(1992)
the rule itself would
sanctions and
2395,
(addressing
120 L.Ed.2d
to the
to conform their behavior
companies
li
challenge to a
facial First Amendment
United States v. Storer
regulation);
though
plaintiff
censing scheme even
cf.
Co.,
192, 198, 76
Broadcasting
permit, citing
nu
applied
had never
(1956)
763,
(finding
1239
NAACP,
speech.
foreign judgment
W.
constitute a
protected
hoofs
See
that is
Richmond,
City
743 F.2d
Region
“repugnant
public policy.”
(Op.
to
(9th Cir.1984)
1215.)
(upholding
1358
challenge
facial
to
standing
bring
to
“sub-
The district court considered the role of
city parade ordi-
stantially overbroad”
comity
ultimately
but
found that
it was
nance).
outweighed
U.S. constitutional
free-
“Although
doms.
France has the sover-
Comity
repugnance
and
uncon-
eign right
regulate
speech
per-
what
injunctions
stitutional
France,
missible in
this Court
agree
majority’s
do not
with the
We
enforce a foreign order that violates the
uncertainties as to whether a
professed
protections of the United States Constitu-
court,
of comi
principles
California
under
by chilling protected
tion
speech that oc-
ty,
foreign
would be inclined
enforce
simultaneously
curs
within our borders.”
infringes
upon
court order
U.S.
II,
F.Supp.2d
Yahoo
169
at 1192. This
corporation’s
rights.
First Amendment
finding
every
does not mean that
foreign
“repugnancy”
standard the
judgment
implicating speech
easily
invokes is
satisfied here. Califor
repugnant
United States would be deemed
underpin
nia’s ease law and its federal
to American public policy and therefore
nings
foreign
tell us to honor
court judg
unenforceable,
particular
but
judg-
they “prejudice
rights
ments unless
vague
ment is
and overbroad that
so
United States citizens or violate domestic
analysis.
fails the repugnancy
Significant-
M.,
public policy.”
Stephanie
In re
ly,
argue
the defendants do not
to us that
595,
Cal.Rptr.2d
Cal.4th
867 P.2d
injunction
comports
with the
(1994)
(citing
Guyot,
Hilton v.
Indeed,
First Amendment.
they did not
113, 202-03,
16 S.Ct.
court orders
1215.)
foreign
a
court decree
party can use
In
(Op. at
Amendment.
First
speech here
United
censor free
result,
majority has suc-
reaching this
subjects
it finds
any range
on
States
con-
logic.
It has
to an error
cumbed
democracy, gender
objectionable religion,
that are somewhat
foreign orders
flated
—
enforcing
name of
its own
equality
law
those that
with U.S.
with
inconsistent
—in
intentions of
country’s
good
laws. The
thing for U.S.
It is one
violate U.S. law.
such as
sympathetic foreign parties
even
attorney’s fees
foreign
pass
courts to
in this case are not
LICRA
UEJF
would
domestic laws
larger
than what
could a California court
standard. How
Hashim,
1169,
award,
In re
213 F.3d
see
good inten
the French defendants’
honor
(9th Cir.2000),
a
recognize judg-
or to
1172
pro-Nazi speech
when
proscribing
tions
limi-
foreign statute of
pursuant
ment
to a
good
Paul’s
intentions did
City
of St.
than that of its domestic
longer
tations
speech
anti-hate
code of view
not cure its
Linder,
P.2d
Milhoux v.
902
analogue, see
in
and constitutional
point discrimination
856,
quite
It is
(Colo.Ct.App.1995).
861-62
at
firmity even when directed
cross-burn
does,
majority
imply,
as the
another
Paul,
City
St.
505
ings? See R.A.V.
of the U.S. Constitution is
violation
377, 392, 112
120 L.Ed.2d
U.S.
S.Ct.
“[ijnconsisten-
from
other
no different
(“St.
(1992)
authority
Paul has no such
law,”
cy
American
which the
fight
a debate to
to license one side of
necessarily enough
pre-
claims “is not
to fol
freestyle,
requiring
while
other
of a for-
recognition and enforcement
vent
rules.”);
Queensberry
see
Marquis
low
judgment
(Op.
in the United States.”
eign
Smith,
F.2d
also Collin v.
1215.)
(7th
denied,
Cir.), cert.
im-
nor Milhoux
Neither In re Hashim
(1978)
(striking
L.Ed.2d 264
state constitutional
plicated federal or
grounds sever
down on First Amendment
Indeed,
cases held that the
rights.
both
Skokie,
prohibiting
al
Illinois ordinances
being challenged
foreign judgments
were
Party of America
the National Socialist
policy of either
repugnant
public
to the
marching through the town: “First
from
Colorado, respectively.
Arizona or
Where
rights
truly precious
Amendment
are
foreign judgment
repug-
was held to be
is,
It
fundamental to our national life....
policy, the re-
public
nant to California’s
all, in
fact that
part
after
our constitu
on the violation of
pugnancy was based
unpopu
minorities
system protects
tional
Custody Juris-
California’s Uniform Child
gov
particular
place
lar at a
time or
from
have resulted had
diction Act
would
intimidation,
harassment and
ernmental
foreign
order been enforced. See
country
from
distinguishes
life
M.,
Stephanie
Cal.Rptr.2d
re
Reich.”)
the Third
life under
majority provides
no
P.2d
and France
People
the United States
why the California courts
explanation
hor-
abhor anti-Semitism and the
should
foreign judgment
would refuse to enforce
Party.
the Nazi
perpetrated
rors
statute, yet willing
that violated a state
Nonetheless,
law differs
our constitutional
foreign judgment
to enforce a
violates
ap-
in our
jurisprudence
from French
state)
(and
perhaps
the federal
Consti- proach
speech.
to hate
Our law reflects
tution.
deeply
political
held
beliefs about freedom
majority’s
implying that for-
country. Borrowing
dictum
expression
in this
formulation,
that would be unconstitu-
“the reme-
eign judgments
Brandeis’s
Justice
falsehood and
dy
applied
expose
none-
to be
[to
tional
entered
speech,
more
not enforced si-
troubling.
Under
fallacies]
theless be enforceable
*39
II,
Whitney
California,
content.”
F.Supp.2d
lence.”
Yahoo
at
(1927)
them under French
court would hold
the French
know whether
petition
or to
the orders
its two interim
violating
Yahoo! is now
any penalty,”
from
court
absolve
1215.) Ironically, the ma-
at
(Op
orders.”
1188,
they
II,
F.Supp.2d at
169
Yahoo
very threat
thereby highlights the
jority
they
pursue
would
such
no indication
gave
Uncertainty about whether
Yahoo! faces.
subject.
on the
pressed
measures when
pre-
fall is
might
of Damocles
the sword
at 1189 n. 7.
Id.
a
Yahoo! seeks
determi-
cisely the reason
us, defense
argument before
During oral
rights in
its First Amendment
nation of
defendants did
conceded that the
counsel
Airports
Metro. Wash.
federal court. See
options
their
to foreclose
not want
Abatement
Auth. v. Citizens
of Aircraft
for
stipulation.
a
As the
to such
agreeing
13,
Noise, Inc.,
252,
111
501
265 n.
U.S.
1204),
(Op. at
should
majority recognizes
(1991);
2298,
Chang
Second, question factual whether explicitly importantly, experts Most technologically it is feasible for Yahoo! to analysis an Internet limited their to how postings monitor the and filter the millions prevented “surfer” France could be assuming accessing of users the website— accessing only content on prohibited from technology actually such bears on YahooFs site, YahooFs auction not all such content First Amendment claims—is an unre- As might way generally. find its onto issue that be returned to the solved should experts emphasized echoing YahooFs parties district court. The not ad- have — imprecision own concern about the of the feasibility specifics dressed the of technical orders: appeal, validity issue on this nor the
experts’ report. The decisions of the [French] Thus the 70% and 90% direct- figures precisely from that re- the demands made are adopts estimate, underlying this griev methodology against the auctions site. No ed however, further illustrates the uncertain any other Yahoo! sites or ance identification and ty predicting Internet with services is sufficient formulated screening, compounded by vague precision to enable the consultants of the court orders. overbroad mandate technical propose suitable effective IP Assuming that “70% of the addresses circumstances, these solutions. can be matched assigned to French surfers therefore confine their consultants will certainty provider to a service located matter of the auctions answers to the filtered,” France, and can be all three site.... experts agreed filtering that “no method is added.) experts also (Emphasis emT capablé identifying all French surfers or to be taken de- phasized, measures “[t]he connecting from French surfers territo. point. case in pend upon particular 90%, ry.” experts To reach two relied all sites and They generalised cannot be voluntary “sworn declaration of na case, In this services on the Internet. that “could tionality” by a French surfer pages.auctions.ya- in question site when a first connection is made to be made added.) site, (Emphasis hoo.com.” in this case the Yahoo disputed ” added.)11 (Emphasis .... auctions site course, orders do not the French Of They for the declaration suggested asking solely on Yahool’s auction prohibit content nationality page at “the home terms, but, by encompass content site their “in auctions site” or the context of search *44 of Yahool’s services. Yahool’s ser- on all objects in for Nazi if the word ‘Nazi’ is beyond its auction site and vices extend far short, request....” cluded in the user’s e-mail, engine, classified include its search experts’ figure depends the 90% on the pages, shopping, listings, personal Web specific link a ability to users to Yahoo! boards, message chat rooms and news sto- content on that site. specific site and to ries. Cerf, a 1997 expert, The third Vinton the French court it recipient of the States National United —like two of the three ex self—seems credit Technology co-designing for the Medal of many perts who estimated as as 90% of Internet,12 disavowed architecture of the all, Yahoo’s auction site relying France-based users of on users’ self-identification concluding appear screened. The that “it does not to be could be identified and sug- screening is no evidence to 9. Even as to content on the auction tants stress that there site, apply experts acknowledged gest the will in the future. that it was not same Encapsulation becoming widespread, possible priori "exclude a items more for Yahoo! to providers becoming by service and access are which have not been described their owner international, being origin belonging more and surfers are increas- of Nazi or to the rights priva- keep ingly protecting their then would Yahoo! intent on Nazi era.” How being cy-” prohibited from accessed? material report suggested that more "radical warranted, essentially pro- Notably, compel might 11. orders solution” be containing prohibit by any hibiting any the word access users in French search territoiy, just "Nazi” an identified French user. How not French citizens. Thus "nationality” paraphernalia has not been declaration does not seem such Nazi which adequate owners with the label "Nazi” event. described mystery. could be screened remains Administration, Depart- Technology 12. See Commerce, Significantly, experts pains ment of The National Medal were at http://www.technol- figure Technology Recipients, at caution based on IP that even the 70% ogy.gov/Medal/Recipients.htm. "[t]he addresses has a short shelf life: consul- users, restricting only by French rely discovering access very feasible to readily 70-90% of whom are identifiable purposes of users for geographic locations they may content regardless of what seek filtering of the kind described imposing validity percentage out on. The of these Order.” Court [French] only assumptions majority’s drives the language, none the orders’ broad Given restricted, definition of access is but whose system experts of the could devise willingness apparent also its to assume France-based users that screening out identify only that even Yahoo! can 70% Therefore, beyond the auction site. went users, prohibited universe of identify can if were true that Yahoo! even If good enough. would be technical feasi- users, France-based up to 70% of all of its bility lynchpin is to be the on which Ya- they are irrespective of the site or service day depends, hooFs federal then geo-, is clear that accessing, evidence parties let the return to the district court identification alone would not en- graphical Instead, proper factfinding. ma- from prohibit Yahoo! to such users able jority preempts the district court’s fact- accessing proscribed 100% of the content function, finding interpreting the French indeed, by the French orders — conclusive experts’ report as evidence come close on that side of could not even deny order to Yahoo! access to the court compliance equation. altogether. questions about There are other serious Lastly, there is the issue of cost of com part experts’ report should pliance. dispute There can be no that the evidentiary district court. hearing very puts nature of the French orders screen- example, For the 70% IP-address incurring Yahoo! to the choice of the costs part from infor- ing figure was derived develop implement mechanisms to provided by mation a French Internet as- individual on location filter users based .out regarding many sociation how of its access removing content from its service alto identify can whether their users providers financial gether. type This of immediate are located in France. Such anecdotal *45 clearly ripe make a case suffices to burden conclusively not demonstrate that data do adjudication, if accept even we the identify capability Yahoo! itself has the threat majority’s proposition that the of location of users. the its is remote. See Pac. Gas & enforcement Indeed, experts pro- method the the Energy v. Res. Conserva Elec. Co. State identify im- posed for Yahoo! to users is Comm’n, 190, 197-98, 461 U.S. tion & Dev. for a precise. experts The noted that (1983) 75 L.Ed.2d S.Ct. number of reasons the “real world” loca- preemption a chal (holding ripe for review may readily identifi- tion of a user be a moratori lenge regulation imposing to a instance, For a French citizen who able. plants peti because um on new nuclear for Internet service uses AOL financial tioners would face substantial Virgi- an IP from having shown as address they hoping while hardship plants built nia, where AOL’s network is located. down); City be struck the law would instances, may choose to mask other users Qwest Corp., 260 F.3d Auburn v. geographical origin of their Internet the (9th Cir.2001) (noting finding that address. unripe require party comply would case assume, franchise “costly cannot as does the with and cumbersome” Thus we requirements).13 majority, that this case is about publicly corporation like Yahoo!. To the possibility fines can held
13. The mere of future very consequences real financial have monetary penalty from the First Amend- enforceability foreign penal 2. The ripeness analysis. ment or As with the judgments assurances French defendants’ that large risk of a Recognizing that currently in consider Yahoo! substantial inevitably monetary penalty weigh must binding court compliance, absent a order op- in of its heavily YahooPs assessment actually freeing Yahoo! from the enforce- tions, to neutralize the tries orders, ment of the French Yahoo! re- shield invok- creating protective risk — if it mains at serious risk fails to conform courts ing the doctrine United States its web content to the dictates of those penal judgments will not enforce orders. countries. It thus assures Yahoo! other penal, “The test whether a law is court
that “even if the French
were
sense,
primary
strict and
is whether the
Yahoo!,
monetary
against
impose
penalty
wrong sought
wrong
to be redressed is a
unlikely
court in
exceedingly
it is
public,
wrong
to the
or a
the individu
Attrill,
in
indeed elsewhere
Huntington
California—or
al....”
wrong done to LICRA and UEJF. The French court LICRA UEJF.” determining test for whether the proper ,of finding direct harm in its reiterated this purposive penal French orders are display November 20 decision: “this [of one, Huntington, 146 U.S. at see damage in objects] clearly Nazi causes 224, and on the record before based plaintiff France to the associations who are us, majority’s certain- we do not share the justified demanding the cessation and undoubtedly penal ty that the orders are context, thereof.” In this reparation in nature. additional relief afforded to the injunction ordering Yahoo! standing public plaintiffs in- gives French law —an activity in France'— terest, organizations to cease its harmful non-governmental merely remedy defending appears to be an additional dedicated to interests groups, in- in a civil suit. members of certain victimized *47 nation, France) damages provisional of 1 Franc to on the basis of of hatred or violence national, ethnic, belonging particular to a ra- effecting restitution for UEJF. As a means ¶24, carry group, 6. Both crimes cial see art. suffered, court also or- the harm the French year imprisonment penalty a of one or a fine pay publication to for the of one dered Yahoo! 45,000 Euros or both. See id. daily or week- of the French decisions in "five ly publications at the choice of [UEJF].” payment Ya-
16. The French court ordered severally (jointly and with Yahoo! hoo! injunction, Bagwell, the ac- Mine Workers v. 512 U.S.
As with the French
United
2552,
114 S.Ct.
exact manner which the F.3d (emphasiz appear ing content would on its site? Millions Congress, insulating Internet postings providers liability and other material flow service from for certain sites, through day.19 published recog Yahoo!’s networks each content on their possibly predict importance protecting Yahoo! cannot when and nized the the “un specific prohibited by unregulated development how content fettered and Internet”).20 way speech French orders will make its onto its free on the accruing grounds by Worthley 18.Even if the exact fines as calcu ruled on other v. Worth 19, (1955). ley, directly 44 Cal.2d 283 P.2d 22-23 were lated French orders law, enforceable under California July 19. The record indicates that as of possibility could face that a California Yahoo! and its had 146 million subsidiaries foreign injunction court would enforce a users worldwide. Each month Yahoo! users contempt proceedings its own state under added or edited more than 15 million Geoci- comity (again, assuming doctrine no substan posted pages web more than 6 mil- ties defect). tive constitutional Biewend v. Cf. lion There were classified advertisements. Biewend, 17 Cal.2d 109 P.2d more than 2.5 million active auction items however, (1941) ("Upon comity, the basis of 200,000 day viewable on Yahoo! each distinguished requirements from the of full day by were accessed each clubs credit, faith and the California courts have in posted messages, uploaded members who foreign numerous cases ordered that a decree photos or added Internet links. payments alimony for future be established as the decree of the California court with the analyzed provi- the rationale for the Batzel same force and effect as if it had been entered protecting providers sions Internet under state, including punishment § in this for con before U.S.C. which Yahoo! invoked tempt statutory pre- comply.”), if the defendant fails over the district court as a basis for *49 impose would ing over its website and operation n greater
far litigation burdens and risks its By denying adjudication, business. than alleging those First Amendment vio- majority proper pro- abdicates our role in by parties lations domestic would have to tecting YahooFs rights. constitutional bear. Yahoo! is expected try per- doing, place so it leaves in a foreign suade the French court narrow or elimi- country’s vague and overbroad judgment very injunction nate the Yahoo! has unsuc- mandating a company to bar access to cessfully fought against in France from the prohibited content Internet users from beginning. Unconstrained our First country. astonishing This result is Amendment, the might French court well strongest argument itself the finding for opportunity táke the to sanction Yahoo! for YahooFs ripe adjudication. claims for Are noncompliance nothing do to allevi- —and towe assume that U.S.-based Internet ser- ate the sweeping restraint on the content providers vice are now the policing agen- If the website. the defendants want to cies for whatever content another country injunction narrow the might such that it keep wants to from those within its territo- comity, warrant that burden should fall on as, rial borders —such example, for contro- them, not Yahoo!. versial democracy, views on religion or the But even if Yahoo! went to the French status of women? If majority’s appli- court and obtained a ruling that its current cation of the First Amendment in glob- policy auction site and Internet services al Internet context in this case is to be- comply orders, content with the that would come the standard —whether as a matter not resolve YahooFs First Amendment of constitutional comity law or it —then problem sweeping injunction unless the it- (or not) should adopted after full con- self were permanently withdrawn or nar- merits, sideration of the constitutional rowed. All Yahoo! would obtain would be justification as a avoiding the issue clearance for operations; its current altogether ripe adjudication. as not exposed would remain to the risk of violat- ing the orders incurring penalties III. Conclusion should it deviate from prac- those current doubt, tices or Without speech should the the hateful defendants decide that defendants in YahooFs content this case objectionable. suppress has seek to become very be condemned. censoring nature of But speech YahooFs business is we find inherently repugnant does not comport mutable —that is the essence of Internet, our cherished because of First the sheer Amendment. It number and constantly well-settled that a changing identity speech hate code of its which “prohibits users and of the permitted content those otherwise speech users solely seek or post themselves on. on the Only subjects basis of the Unit- ed States provide speech court can “facially Yahoo! with addresses” is unconstitu- legal V, resolution of injunc- its claim that tional.” R.A. atU.S. 112 S.Ct. order, written, tive cannot be majority’s enforced Under the reasoning, a in the United States party without infringing targeted for enforcement of a for- company’s First rights, Amendment eign judgment there- restricting speech by relieving it of the hang- coercive threat United States will have no recourse but to
venting enforcement of the French court or- ders here. *50 court, which does not foreign
appeal to QWEST COMMUNICATIONS Amendment, to try to recognize the First INC., Plaintiff-Appellee, the decree—or to escape the strictures of through either compliance, demonstrate submitting to its voluntary action or BERKELEY; City CITY OF Council of enduring the Only after decree’s terms. Berkeley; Rucker, in his offi- Weldon out, plays chilling process effects while this Acting capacity City Manager cial as then faced with whatever sanction the Berkeley; City Phil Kam- noncompli- foreign may impose court larz, capacity Deputy in his official ance, the United may doors of States City Berkeley, City Manager of the be opened. Court District Defendants-Appellants. foreign We should not allow 03-15852. No. leverage quash order to be used as constitutionally protected speech deny- of Appeals, United States Court target the United States-based an ad- ing Ninth Circuit. rights in
judication of its constitutional Argued and 2005. Submitted Dec. By invoking court. the doctrine of federal Filed Jan. hav- prudential ripeness notwithstanding — personal jurisdiction ing found both over foreign and a
the two defendants constitu- controversy majority
tional case or —the that, just only denying
does in which it free itself of facial-
forum can Moreover,
ly unconstitutional injunction. doing so the creates new and Inter-
troubling precedent for U.S.-based providers con-
net service who court orders that re- foreign
fronted police them to the content accessible
quire country. Internet users from another respectfully therefore dissent from
We
majority’s ripeness decision.