Score One For Free SpeechScore One For Free Speech

Regulating the Internet isn't a topic where there's much agreement, particularly internationally. The lack of unanimity was underscored with the recent court decision in which Yahoo Inc. lost its bid to avoid liability for "hate speech" as defined under French law.

A divided U.S. 9th Circuit Court of Appeals reversed and dismissed a 2002 district court ruling that said Yahoo wasn't liable for a fine levied by a French court for the company's failure to keep Nazi memorabilia off its Web pages.

Despite the ruling against it, Yahoo cast the decision as a victory for free speech. "We are pleased that the court affirmed that U.S. courts have jurisdiction when foreign plaintiffs try to impose censorship on U.S. Web sites," the company said in a statement. "The majority of the court could not agree as to whether the case was ready to be decided on the First Amendment issue. However, ... based on today's ruling, Yahoo believes that free speech rights would prevail if the French court orders were attempted to be enforced in the U.S."

Despite the dismissal of its suit, Yahoo is unlikely to have to pay the French fine imposed of about $15 million. In 2001, following the French ruling, Yahoo changed its policy to prohibit use of Yahoo auctions or classifieds to offer items associated with hate groups.

That policy isn't 100% effective. As described in the ruling, the district court found that Yahoo continued to allow online sales of Mein Kampf and Nazi postage and coinage even after the new policy was in place. On Yahoo.com in the United States, Mein Kampf is available--after all, it's legal here.

The French group that sued Yahoo in 2000 doesn't intend to press for payment unless Yahoo abandons its efforts to comply with French concerns, according to E. Randol Schoenberg, the Los Angeles attorney representing the plaintiffs.

"The big question for Yahoo, actually for both parties, is whether we're going to take this to the Supreme Court," Schoenberg said in a phone interview, noting that decision may be made in coming months.

Deep Divide

Fordham University law professor Joel Reidenberg said the ruling was significant for a number of reasons beyond Yahoo's failure to obtain immunity from the French judgment. "The court's convoluted plurality opinion shows that U.S. law continues to have deep divisions over the regulation of activities on the Internet," he said in an E-mail. Whether the First Amendment protects Yahoo from enforcement of the French judgment remains unresolved, he said.

Finally, he said, "The 9th Circuit dramatically lowered the bar for suing foreigners in U.S. courts when they win decisions in their home countries." One consequence of this is that foreign courts might respond by accepting cases brought by local companies seeking to avoid U.S. court judgments.

"This is a radical and troubling expansion of U.S. jurisdiction that may put U.S. companies at risk abroad," he said in a post to computer-science professor David Farber's Interesting People mailing list. "In essence, the majority would allow any U.S. company that loses a lawsuit abroad to bring the suit back to the U.S. for a second bite at the apple."