9th Circuit En Banc Panel Rules Against Yahoo in French Internet Censorship Case

January 12, 2006. The U.S. Court of Appeals (9thCir) issued its fractured en banc opinion [99 pages in PDF] in Yahoo v. LICRA, a case regarding whether Yahoo can obtain from the U.S. District Court a declaratory judgment that a French court order censoring internet speech on its servers in the U.S. is violative of the First Amendment. The panel issued a short, two paragraph, per curiam opinion that, like the three judge panel, reversed the District Court's judgment in favor of Yahoo. This outcome is a defeat for internet service providers such as Yahoo, internet speakers, and freedom of speech online.

Five members of the eleven member panel wrote separate opinions offering differing legal analyses. Although, the en banc panel essentially broke down into three groups. Two groups of three each supported dismissal of Yahoo's action, and one group of five supported affirming the District Court's judgment in favor of Yahoo.

The District Court held that there is personal jurisdiction over the French defendants, and a violation of the First Amendment. The three judge panel held that the District Court lacks personal jurisdiction. Eight judges of the en banc opined that the District Court has specific personal jurisdiction. Three opined that it does not. However, three of the eight member majority also opined that the case lacks ripeness. Only five of eleven judges opined that there is both specific personal jurisdiction and ripeness. The Court reversed and remanded with instructions to dismiss the action without prejudice.

That is, French entities went to a French court and obtained an order imposing a prior restraint on speech on Yahoo servers located in the U.S. Yahoo sought a declaratory judgment in the U.S. District Court that the French order is unenforceable in the U.S. for violation of the First Amendment's free speech clause. The Court of Appeals' collection of conflicting opinions now orders the dismissal of Yahoo's action.

Procedural History. In a previous action, in the nation of France, two entities titled La Ligue Contre La Racisme et L'Antisemitisme (LICRA) and L'Union Des Etudiants Juifs de France (UEJF) sued Yahoo. They obtained a judgment ordering Yahoo to stop publishing certain material in its web site located in the U.S.

In the present action, Yahoo filed a complaint in U.S. District Court (NDCal) against the LICRA and UEJF seeking a declaratory judgment that the French judgment is unenforceable in the U.S. because it violates the First Amendment. The French entities' legal strategy throughout the U.S. proceedings has been to seek dismissal on procedural grounds, rather than to argue the merits of their case.

The French entities argued that the U.S. Court lacks personal jurisdiction over them, notwithstanding the circumstances that their actions are directed at the censoring and fining of a business located in the Northern District of California.

On June 7, 2001, the District Court issued its Order Denying Motion to Dismiss [PDF] in which it rejected the French defendants' argument the Court lacks personal jurisdiction. See, story titled "U.S. Has Jurisdiction over French Defendants in Yahoo v. LICRA" in TLJ Daily E-Mail Alert No. 205, June 11, 2001.

On November 7, 2001, the District Court issued its Order Granting Motion for Summary Judgment [PDF] in favor of Yahoo. It held that the First Amendment of the U.S. Constitution precludes enforcement within the U.S. of a foreign court order intended to regulate the content of speech over the Internet. See, story titled "NDCal: French Court Order Restricting Internet Speech is Unenforceable in U.S." in TLJ Daily E-Mail Alert No. 305, November 9, 2001.

The French entities brought the present appeal. They argued that the District Court lacked personal jurisdiction, that the case is not ripe (because they have not yet sought to enforce the French judgment in the U.S.), and that the abstention doctrine applies.

On August 23, 2004, a three judge panel of the Appeals Court issued its split opinion [34 pages in PDF] reversing the District Court. It held that the District Court lacks personal jurisdiction because the French defendants have not purposely availed themselves of the benefits of the forum. The majority did not decide the issues of ripeness or the abstention doctrine. See, story titled "9th Circuit Reverses in Yahoo v. LICRA" in TLJ Daily E-Mail Alert No. 965, August 24, 2004. Yahoo sought en banc review.

On February 10, 2005, the Court of Appeals granted a motion for rehearing en banc. See, story titled "9th Circuit Grants Rehearing En Banc in Yahoo v. LICRA" in TLJ Daily E-Mail Alert No. 1,075, January 11, 2005.

En Banc Order and Opinions. On January 12, 2006, an eleven member en banc panel of the Court of Appeals reversed the District Court, and remanded with instructions that the case be dismissed without prejudice.

The slip opinion is paginated as pages 403 through 506. It is a 99 page PDF document. (There are no pages numbered 405, 406, 407, or 408.)

The per curiam opinion is at 408-409, and PDF pages 3-4.

Judges Fletcher, Schroeder and Gould. Three Judges supported dismissing the case for lack of ripeness.

Judge William Fletcher wrote an opinion (beginning at 411/5). Part I (beginning at 411/5) is a recitation of facts and procedural history. Part II (beginning at 418/12) pertains to personal jurisdiction. It concludes that there is specific personal jurisdiction.

Part III (beginning at 429/23) pertains to ripeness. It concludes that the case lacks ripeness. Fletcher wrote that "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."

However, while seven other Judges concurred in the conclusion that there is specific personal jurisdiction, only two concurred that ripeness is lacking (Schroeder and Gould).

Judges Ferguson, O'Scannlain and Tashima. Three Judges supported dismissing the action for lack of jurisdiction.

Judge Ferguson's opinion (beginning at 452/46) concurred with only Part I (regarding the facts of the case) of Judge Fletcher's opinion. He dissented as to Parts II (personal jurisdiction) and Part III (ripeness).

Judge Ferguson concluded that "I do not believe that lack of ripeness is the proper ground to dismiss Yahoo!'s suit. Instead, I believe that the District Court did not properly exercise personal jurisdiction over the defendants and also should have abstained from deciding Yahoo!’s claims." He was joined by Judges O'Scannlain and Tashima.

Judge O'Scannlain also wrote an opinion (beginning at 462/55) in which Judges Ferguson and Tashima joined. And, Judge Tashima's wrote an opinion (beginning at 468/61) in which Judges Ferguson and O'Scannlain joined.

Judges Fisher, Hawkins, Paez, Clifton and Bea. Judge Fisher's opinion (beginning at 471/64) concludes that there is both specific personal jurisdiction and ripeness, that the District Court must be affirmed, and that Yahoo thus must obtain declaratory relief that the French order violates the First Amendment. Judges Hawkins, Paez, Clifton and Bea joined.

Fisher wrote that "the issue before us is whether a United States Internet service provider, whose published content has been restricted by a foreign court injunction, may look to the United States federal courts to determine the enforceability of those restrictions under the United States Constitution’s First Amendment. The French injunctive orders -- backed by substantial, retroactive monetary penalties for noncompliance -- require Yahoo! to block access from French territory to Nazi-related material on its <yahoo.com> website. Some prohibited content is readily identifiable, such as Nazi artifacts or copies of Mein Kampf. Much, however, is not."

He continued that ""In traditional First Amendment terms, this injunctive mandate is a prior restraint on what Yahoo! may post (or control access to) on its U.S.-located server -- imposed under principles of French law and in such facially vague and overbroad terms that even the majority does not know ``whether further restrictions on access by French, and possibly American, users are required´´ to comply with the French orders. (Op. at 451.) Yahoo! can either hope to comply with what the French court (and the defendants here) deems to be inappropriate content by attempting to block access to material Yahoo! thinks the orders cover or by simply removing any questionable content altogether. Or Yahoo! can ignore the French court’s mandate in whole or in part and accept the risk of substantial accruing fines. The majority, however, is unmoved. For it, Yahoo!’s proper recourse is to take its case back to France. We cannot agree."

Judge Fisher concluded that "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. By invoking the doctrine of prudential ripeness — notwithstanding having found both personal jurisdiction over the two foreign defendants and a constitutional case or controversy — the majority does just that, denying Yahoo! the only forum in which it can free itself of a facially unconstitutional injunction. Moreover, in doing so the majority creates a new and troubling precedent for U.S.- based Internet service providers who may be confronted with foreign court orders that require them to police the content accessible to Internet users from another country."

Judge Ferguson offered this explanation of what is essentially a 6-5 split. "An eight-judge majority of the en banc panel holds, as explained in Part II of this opinion, that the district court properly exercised specific personal jurisdiction over defendants LICRA and UEJF under the criteria of Calder. A three-judge plurality of the panel concludes, as explained in Part III of this opinion, that the suit is unripe for decision under the criteria of Abbott Laboratories. 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. We therefore REVERSE and REMAND to the district court with instructions to dismiss without prejudice."

This case is Yahoo, Inc. v. La Ligue Contre La Racisme et L'Antisemitisme and L'Union Des Etudiants Juifs de France, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. No. 01-17424, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-00-21275-JF, Judge Jeremy Fogel presiding. Judge Warren Ferguson wrote the opinion of the three judge panel, in which Judge Wallace Tashima joined. Judge Melvin Brunetti wrote a dissent. The members of the en banc panel are Mary Schroeder, Warren Ferguson, Diarmuid O’Scannlain, Michael Daly Hawkins, Wallace Tashima, William Fletcher, Raymond Fisher, Ronald Gould, Richard Paez, Richard Clifton, and Carlos Bea.