Prudence on all sides
In early 2001, after the French court had issued its interim order mandating that Yahoo! take reasonable measures to disable access by people located in France to particular material on yahoo.com, and after Yahoo! had challenged the enforceability of that order in a U.S. district court, Yahoo! took a prudent business step: It announced a change in its policies.
It said that Yahoo! users would no longer be allowed ”to offer or trade in items that are associated with or could be used to
promote or glorify groups that are known principally for hateful and violent positions directed at others based on race or
similar factors.”
Yahoo! has always maintained that this change in policy was unrelated to the issuance of the French orders. It was about to start charging a fee for auctions, and it didn't want to be making money (even indirectly) from sales of these kinds of materials.
Now the Ninth Circuit has finally ruled [warning: 99-page pdf] on the Yahoo! matter, and a majority of judges have taken what they view to be a prudent step: They don't want to issue an advisory opinion. To the extent that Yahoo!'s early 2001 change in policy brought Yahoo! into rough compliance with the French orders, it is unclear (according to the 9th circuit) how much of a dispute remains. They don't think this case meets the requirements of “prudential ripeness.” Courts don't want to get involved with abstract cases.
Because enough judges on the 9th Circuit thought that the case wasn't ripe (three judges) and thought that the district court didn't have jurisdiction over the plaintiffs in the French case (three judges), Yahoo!'s suit has been dismissed (six judges) – even though eight judges thought the district court did have jurisdiction over the French actors. There is a veritable riot of opinions on the personal jurisdiction question. (You would enjoy law school.)
It all boils down to this statement in the majority opinion:
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.
(Somewhat bizarrely, the majority finds BOTH that personal jurisdiction was proper over the French actors, AND that the case was sufficiently alive to be considered ripe, but goes off on “prudential ripeness” to avoid deciding this delicate international issue.)
The dissent strongly disagrees, saying that the French orders cannot be enforced in the US because they violate the First Amendment, and that it is important that we be clear about a country's ability to enforce an order outside its borders:
[T]he question we face in this federal lawsuit is whether our own country’s fundamental constitutional guarantee of freedom of speech protects Yahoo! (and, derivatively, at least its users in the United States) against some or all of the restraints the French defendants have deliberately imposed upon it within the United States.
That's the question that the Ninth Circuit has now prudently refused to reach.
I have sympathy for both the court and Yahoo! here. Yahoo! is certainly operating under the cloud of an order that would be (or should be) unenforceable in the United States. At the same time, the tangled web of opinions in this case makes clear that the Ninth Circuit was deeply unsure as to whether it should act at all. And a very political question was in front of the court.
It would have been cleaner if Yahoo! had never changed its policies in 2001. Its self-restraint on this point is similar to the court's self-restraint. Neither wanted to go out on a limb in a way that might undermine its institutional legitimacy. As a result, a very important question has gone unanswered.
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I think this case is interesting for a number of reasons, but most especially because it calls into question issues of nations’ rights in a global economy but more specifically a globally networked community. Of course, Americans tend to decry what they regard as censorship by France, since freedom of speech is a right we view as sacred. However, we become incensed when we discover that Thailand is posting images of child pornography that can be accessed by someone in our own country. How vile, we say, and rightly so, but doesn’t this call into question our own hypocrisy when it comes to respecting other nations’ cyberethics? What I suspect much happen sooner or later – and I fully realize that this sounds like an overly idealistic notion – is that a world economy must arise to replace the independent nation model we now have. Not only would such a system resolve these sorts of issues, but it would allow bedrock standards to be set, such as minimum wage, so that problems such as those we have with outsourcing would cease to exist.