The U.S. Federal Court of Appeals for the 9th Circuit decided last week to reject an appeal by Yahoo in a U.S. echo of the French Nazi memorabilia case. Today's FT has a story. After losing in France, Yahoo sought a declaratory judgment in the U.S. that the French judgements should not be recognized or enforced in the U.S. because enforcement would violate the First Amendment.
A majority of the court found personal jurisdiction over the defendant, La Ligue Contre le Racisme et L'Antisemitisme. But a minority found no personal jurisdiction, and another minority found the basic issue of recognition and enforcement not to be ripe, and so the court declined to adjudicate it.
Following is the dispositive language from the court:
"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."
Along the way, the court preliminarily examined some of the substantive aspects of the case, including the question of whether enforcement of the French judgment would violate California public policy and the First Amendment. One aspect of this inquiry addressed the question of whether suppression of Nazi memorabilia notices in France would offend California public policy and the First Amendment. This is an interesting case, occasioned by the internet, of conflict of strong public policy between the U.S. and France. To me, the most interesting thing about it is that in this context we use doctrines of personal jurisdiction, choice of law, and recognition and enforcement of judgments to determine how to interrelate these important and somewhat divergent national public policies. I say "somewhat" divergent because of course France also protects free speech, but obviously with different exceptions. I believe that to some extent these private international law doctrines, along with the ripeness doctrine, allow us to isolate, and to some extent avoid, the fundamental conflict.
