Ninth Circuit Ducks [6:13 pm]
In a case that pitted freedom of speech rights enshrined under U.S. law against European anti-hate group statutes, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit reversed a district court ruling that had provided free speech protections to the U.S. company in its overseas operations.
The U.S. appeals court said that because Yahoo had complied “in large measure” with the French court’s orders and barred the the sale of Nazi memorabilia from its site in France, Yahoo’s free speech petition has become a moot issue.
“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,” the decision by a majority of the appeal court’s 11 judges who heard the case.
A majority of the en banc court (Judge W.A. Fletcher, joined by Chief Judge Schroeder and Judges Hawkins, Fisher, Gould, Paez, Clifton, and Bea) concludes that the district court had personal jurisdiction over the defendants. Of that majority, three judges (Chief Judge Schroeder, and Judges W.A. Fletcher and Gould) conclude that the action should be dismissed for lack of ripeness. Five judges (Judge Fisher, joined by Judges Hawkins, Paez, Clifton, and Bea) conclude that the case is ripe for adjudication. The three remaining judges (Judges Ferguson, O’Scannlain, and Tashima) conclude that the action should be dismissed because the district court lacked personal jurisdiction over the defendants.
Later, in the Conclusion:
First Amendment issues arising out of international Internet use are new, important and difficult. We should not rush to decide such issues based on an inadequate, incomplete or unclear record. We should proceed carefully, with awareness of the limitations of our judicial competence, in this undeveloped area of the law. Precisely because of the novelty, importance and difficulty of the First Amendment issues Yahoo! seeks to litigate, we should scrupulously observe the prudential limitations on the exercise of our power.
Yahoo! wants a decision providing broad First Amendment protection for speech and speech-related activities on the Internet that might violate the laws or offend the sensibilities of other countries. As currently framed, however, Yahoo!â€™s suit comes perilously close to a request for a forbidden advisory opinion. There was a live dispute when Yahoo! first filed suit in federal district court, but Yahoo! soon thereafter voluntarily changed its policy to comply, at least in part, with the commands of the French courtâ€™s interim orders. This change in policy may or may not have mooted Yahoo!â€™s federal suit, but it has at least come close. Unless and until Yahoo! changes its policy again, and thereby more clearly violates the French courtâ€™s orders, it is unclear how much is now actually in dispute.
[...] Until we know whether further restrictions on access by French, and possibly American, users are required, we cannot decide whether or to what degree the First Amendment might be violated by enforcement of the French courtâ€™s orders, and whether such enforcement would be repugnant to California public policy. We do not know whether further restrictions are required, and what they might be, because Yahoo! has chosen not to ask the French court. Instead, it has chosen to come home to ask for a declaratory judgment that the French court’s orders — whatever they may or may not require, and whatever First Amendment questions they may or may not present — are unenforceable in the United States.
[...] When the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction over LICRA and UEJF, there are six votes to dismiss Yahoo!’s suit.