Academic journal article Santa Clara High Technology Law Journal

Court Refuses to Enforce French Order Attempting to Regulate Speech Ocurring Simultaneously in the U.S. and in France

Academic journal article Santa Clara High Technology Law Journal

Court Refuses to Enforce French Order Attempting to Regulate Speech Ocurring Simultaneously in the U.S. and in France

Article excerpt

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. (1)

I. INTRODUCTION

In this landmark case, the United States District Court of California held that the enforcement of a French order prohibiting the sale or display of Nazi propaganda and artifacts through the use of a Web site owned by the U.S.-based Internet service provider Yahoo!, Inc. ("Yahoo!") violated the First Amendment. (2) The court remarked that this case presented a unique context for the application of free speech principles given the simultaneous occurrence of speech in different countries through the use of the Internet. (3)

In reaching its conclusion, the court relied on well-settled First Amendment law to declare that while France could regulate speech occurring in France consistent with its cultural and social values, it could not regulate speech that impermissibly violates the First Amendment by imposing content or viewpoint-based regulations on speech that also occurs within U.S. borders. (4) On this basis, the court refused to enforce the French order attempting to regulate speech--however offensive--occurring in the United States, despite its simultaneous occurrence in France. (5)

The court carefully explained that its decision did not involve a determination of the moral acceptability of the speech because of the sensitivities implicated in the decision of whether to enforce another nation's orders, particularly given the repugnant nature of the speech at issue. (6) In fact, the court showed great respect towards France's effort to provide a mechanism to quash such speech in light of the horrific suffering inflicted by those espousing Nazi views. (7) However, the court stated that while honorable, such efforts effectively imposed content-based regulations which, on balance, are overridden by the free speech protections built into the First Amendment. (8)

This Case Note examines the court's reasoning for refusing to enforce the French order prohibiting Yahoo! from selling or displaying Nazi related propaganda and artifacts on and through the use of its Web site.

II. FACTUAL AND PROCEDURAL BACKGROUND

Although Yahoo! specifically targets certain Web sites to Internet users residing in specific regions, any of Yahoo!'s Web sites can be accessed by users virtually worldwide. (9) For example, Web pages that are located on Yahoo!'s yahoo.com Uniform Resource Locator (URL) are written in English and target U.S. residents, while Web pages that are located on its yahoo.fr URL are written in French and target French residents. (10) Although Yahoo! provides many Internet-related services, its automated auction site is the subject of the issues that are raised in the instant action.

Any user can post an item for sale on the auction site and can solicit bids from any other user irrespective of location. (11) Yahoo! is only responsible for providing an avenue for the exchange of identification, payment, and shipping information to both the highest bidder and the seller. (12) The buyer and seller, rather than Yahoo!, are solely responsible for the completion of the transaction. (13) Other than prohibiting users from selling certain illegal items (e.g., body parts and illegal drugs) and informing users that they cannot sell items to buyers in jurisdictions where the sale of such items violates that jurisdiction's laws, Yahoo! does not actively regulate the auction site or the content posted. (14) As a consequence, users have posted, and continue to post, items that many may consider highly offensive, including the Nazi related items at issue in this action. …

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