Yahoo!'s free speech suit dismissed by US court

A divided federal appeals court on Thursday ducked the question of whether a French court order censoring Nazi-related materials can apply to Yahoo!'s US-based website.

In a case that pits European restrictions on "hate speech" against the values of free expression enshrined by the US' First Amendment, a slender 6-5 majority of the 9th US Circuit Court of Appeals dismissed Yahoo!'s case involving the online display of Nazi-related books, posts and memorabilia.

One group of judges wrote: "Unless and until Yahoo! changes its policy again, and thereby more clearly violates the French court's orders, it is unclear how much is now actually in dispute." Also, those judges said, it's "extremely unlikely" any penalty could be assessed against Yahoo!'s US operations.

In an unusual twist, the 11-judge panel fractured into multiple factions, some of which said the case should be dismissed on technicalities or because it was too preliminary, and others who said it was an easy call because the French court order is clearly unenforceable under the US Constitution.

Yahoo! filed the suit in December 2000 in an effort to clear up whether a US company was required to rework its website to comply with a French court order. In April of that year, the Paris-based International League against Racism and Anti-Semitism (Licra) took the web portal to court to stop sales of Nazi paraphernalia to French citizens on its auction site. French law prohibits the sale or exhibition of objects associated with racism.

A French court agreed with Licra. It required Yahoo! to make it "impossible" for French citizens to connect to a Yahoo! website with messages relating to Nazi objects, or ones that displayed excerpts from Adolf Hitler's Mein Kampf and The Protocols of the Elders of Zion, or messages that contested Nazi crimes.

But Yahoo! won its initial court battle in the US. A federal district judge ruled in November 2001 that "although France has the sovereign right to regulate what speech is permissible in France, this court may not enforce a foreign order that violates the protections of the United States Constitution".

In a dissent on Thursday, a minority of 9th Circuit judges echoed that argument. The dissent said: "Censoring speech we find repugnant does not comport with our cherished First Amendment. We should not allow a foreign court order to be used as leverage to quash constitutionally protected speech by denying the United States-based target an adjudication of its constitutional rights in federal court."

Joel Reidenberg, a professor of law at Fordham University who wrote a law review article on the topic, said he was alarmed that a majority of the 9th Circuit found sufficient jurisdictional grounds existed to consider the case.

Reidenberg said in email: "This is a radical and troubling expansion of US jurisdiction that may put US companies at risk abroad. In essence, the majority would allow any US company that loses a lawsuit abroad to bring the suit back to the US for a second bite at the apple." Now, he said, foreign companies that lose in the US might take their dispute back to a more friendly court at home.

The US case does not involve Yahoo!'s French subsidiary, which has complied with French law.

Declan McCullagh writes for CNET News.com