Yahoo, Inc. v.

LICRA
145 F. Supp. 2d 1168, Case No. C-00-21275JF (N.D. Ca. September 24, 2001)
United States District Court issues a declaratory judgment declaring unenforceable in the
United States an order of a French Court which, inter alia, directs that Yahoo Inc., under threat
of continuing penalties, prevent French citizens from accessing Nazi items offered for sale by
third parties on Yahoo.com's auction site, and "to take all necessary measures to dissuade and
render impossible any access via Yahoo.com to the Nazi artifact auction service and to any
other site or service that may be construed as constituting an apology for Nazism or a contesting
of Nazi crimes." Court issues such relief because of its determination that enforcement of this
order would violate Yahoo's First Amendment rights.
Court holds that the prerequisite for the issuance of declaratory relief, the existence of an actual
case or controversy, have been met as a result of the threat of enforcement of the French Court's
order, and the ongoing penalties associates therewith. The Court also rejects defendants'
contention that appropriate application of the abstention doctrine obligated the Court to refrain
from resolving the instant litigation. Because the action seeks to litigate a question most
properly decided by a United States court - namely the enforceability of the French Court's
order in the United States - and not to relitigate the issue before the French court (whether
Yahoo's site runs afoul of French law) the court declined to abstain from resolving it. Nor did
principles of comity require the enforcement of the French Court's order, because to do so
would run afoul of the United States' policies embodied in the First Amendment of the United
States Constitution.
Yahoo Inc. ("Yahoo") operates a number of web sites, including an auction site and search
engine directory at Yahoo.com and a regional site at Yahoo.fr. The sites operated at Yahoo.com
are written in English, while the site operated at Yahoo.fr is written in French.
Various third parties posted for sale on Yahoo's auction site Nazi-related propaganda and Third
Reich related memorabilia, including Adolf Hitler's Mein Kampf and The Protocol of the
Elders of Zion (an infamous Anti-Semitic report). In April, 2000 defendant La Ligue Contre
Le Racism Et L'Antisemitisme ("LICRA")1, a non-profit organization dedicated to eliminating
Anti-Semitism, sent a 'cease and desist' letter to Yahoo, informing Yahoo that the
advertisement and/or sale to French residents of Nazi and Third Reich related goods through
Yahoo's auction site violated French law.
Defendant LICRA, joined by defendant L'Union Des Etudians Juifs De France, 2 another non-
profit organization dedicated to eliminating Anti-Semitism, thereafter commenced an action
against Yahoo in French court. The French court found that approximately one thousand Nazi
and Third Reich related materials were offered for sale on Yahoo.com's auction site. Because
French citizens could access these auctions via links on Yahoo.fr, the French Court concluded
that Yahoo.com's auction site violated section R645-1 of the French Criminal Code, which
prohibits the exhibition of Nazi propaganda and artifacts for sale. As a result, the French court
issued an order ("French Order"):
requiring Yahoo to (1) eliminate French citizens' access to any material on the Yahoo.com
auction site that offers for sale any Nazi objects, relics, insignia, emblems, and flags; (2)
eliminate French citizens' access to web pages on Yahoo.com displaying text, extracts, or
quotations from Mein Kampf and the Protocol of the Elders of Zion; (3) post a warning to
French citizens on Yahoo.fr that any search through Yahoo.com may lead to sites containing
material prohibited Section R645-1 of the French Criminal Code, and that such viewing of the
prohibited material may result in legal action against the Internet user; (4) remove from all
browser directories accessible in the French Republic index headings entitled "negationists"
and from all hypertext links the equation of "negationists" under the heading "Holocaust." The
order subjects Yahoo! to a penalty of 100,000 Euro for each day it fails to comply with the
order.
The order concludes: "We order the Company YAHOO! Inc. to take all necessary measures to
dissuade and render impossible any access via Yahoo.com to the Nazi artifact auction service
and to any other site or service that may be construed as constituting an apology for Nazism or
a contesting of Nazi crimes."
This order was reaffirmed by the French court on November 20, 2000, despite Yahoo's
contentions that compliance with the French Order was technologically impossible. The French
court directed Yahoo to comply with its order within three months, or face a penalty of 100,000
francs (approximately U.S. $13,300) per day.
Yahoo subsequently posted the required warning, and prohibited postings in violation of
Section R645-1 of the French Criminal on its Yahoo.fr site. Yahoo also amended its auction
policy to prohibit auctions of items that "promote, glorify or [are] directly associated with ...
Nazis ...” Notwithstanding this change in policy, there were still items for sale on Yahoo's
auction site which violate the French Order. In addition, Yahoo did not prevented access from
it site's search engine/directory to other sites which "may be construed as constituting an
apology for Nazism or a contesting of Nazi crimes."
Yahoo thereafter commenced an action in the United States District Court for the Northern
District of California, seeking a declaratory judgment that the French Order could not be
enforced in the United States under the laws of the United States. On Yahoo's motion for
summary judgment, the court, as explained more fully below, granted Yahoo's motion.
As framed by the court:
What is at issue here is whether it is consistent with the Constitution and laws of the United
States for another nation to regulate speech by a United States resident within the United States
on the basis that such speech can be accessed by Internet users in that nation. ... There is little
doubt that Internet users in the United States routinely engage in speech that violates, for
example, China's laws against religious expression, the laws of various nations against
advocacy of gender equality or homosexuality, or even the United Kingdom's restrictions on
freedom of the press. If the government or another party in one of these sovereign nations were
to seek enforcement of such laws against Yahoo! or another U.S.-based Internet service
provider, what principles should guide the court's analysis.
After deciding that this question must be answered by application of United States law, the
court held the enforcement of the French Order would run afoul of the First Amendment. The
French Order, prohibiting the sale of Nazi related items, is a content based restriction that "a
United States court constitutionally could not make...” As recognized by the Court "the First
Amendment does not permit the government to engage in viewpoint-based regulation of speech
absent a compelling governmental interest, such as averting a clear and present danger of
imminent violence" which compelling interest was not present in this case.
The French Order further ran afoul of the First Amendment because it was impermissibly vague
insofar as it directed Yahoo to "take all necessary measures to dissuade and render impossible
any access via Yahoo.com to the Nazi artifact auction service and to any other site or service
that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes...".
The Court found that there was a substantial controversy between parties having adverse legal
interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
Yahoo was faced with a valid order of a French court which prohibited it from engaging in
certain conduct upon pain of financial penalty. The uncertainty Yahoo faced as to whether the
remedial actions it had undertaken were sufficient to meet the mandates of the French Order
"is the precise harm against which the Declaratory Judgment Act is designed to protect."
The Court rejected defendants' contention that application of the abstention doctrine mandated
that the court refrain from resolving the issues before it. While abstention is an appropriate
remedy for international forum shopping, such was not the case here. Before the United States
court was an issue - the enforceability of the French Order in the United States - most
appropriately determined by a United States court. Importantly, it was not the same issue the
French Court faced - whether Yahoo's conduct ran afoul of French law - which Yahoo was not
seeking to relitigate. The Court accordingly declined to abstain from rendering a determination
of the action.
Lastly, the Court determined it was not obligated, under principles of comity, to enforce the
French Order given its conflict with the important United States policy considerations reflected
in the First Amendment. Said the Court:
The French Order's content and viewpoint-based regulation of the web pages and auction site
on Yahoo.com, while entitled to great deference as an articulation of French law, clearly would
be inconsistent with the First Amendment if mandated by a court in the United States. What
makes this case uniquely challenging is that the Internet in effect allows one to speak in more
than one place at the same time. Although France has the sovereign right to regulate what
speech is permissible in France, this Court may not enforce a foreign order that violates the
protections of the United States Constitution by chilling protected speech that occurs
simultaneously within our borders.
The Court accordingly declared the French Order unenforceable in the United States.

1 The League Against Racism and Anti-Semitism.

2 The Union of Jewish Students of France.