Ethical and Legal Concerns in a Digital World

Yahoo anti-Nazi Freedom of Speech Case

Posted in legal issues by digitalprof on January 14, 2006

Federal Appeals Court Rules Using Technicality

In what appears to be a ruling slamming freedom of speech involving the largest internet company in the world, Yahoo (based in Sunnyvale, California), it appears that more than meets the casual-eye was involved.

The case, Yahoo v. La Ligue Contre Le Racisme et L’Antisemitisme, involved two French anti-Nazi groups suing the American internet company for offering Adolph Hitler’s book Mein Kampf , as well as other Nazi-era memorabilia, for sale through its website. Further information concerning this appeals court case is available here. Information concerning the initial ruling in 2001 is available here.

The suit appears on the surface to have been based on a technicality…that of the lower court’s original ruling not being enforcable because it was based in a foreign country. But…and here is the ah-ha moment…in actuality it may be that the appeals court was not wishing to put the courts into a diplomatic dilemma.

As Susan Crawford, a law professor at Cardozo School of Law in New York stated,”The facts in this case allowed the court to avoid the difficult diplomatic issues raised by the dispute.” In translation…the appeals court did not want to allow a ruling that would pit the US courts against the French government.

One of the appeals court judges brought that issue to light when he stated in the decision,

To prevent enforcement in the U.S., a foreign judgment must be “repugnant to public policy,” and the case isn’t in any shape to tell if the French orders meet that requirement, Judge William Fletcher wrote.”Yahoo has chosen not to ask the French court” whether unrelated changes in its policies — like prohibiting auction listings that offer items associated with primarily violent or hateful groups — have indirectly satisfied the foreign order, Fletcher wrote. “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.”

While it’s possible that Yahoo could be forced to restrict its access to its American users, that possibility is, at this point, “highly speculative,” Fletcher wrote, and therefore not urgent enough. See

So now the questions appear to be:

  • what happens if another country passes laws somehow exploiting the decision in this case…how about the new Bolivian president insisting that any internet service based in the United States imposed principles repugnent to the soverign country of Bolivia?
  • how about local hate groups moving “offshore”, just like banks, and then filing such suits? Nuisance? Or legal, by this ruling?

Will freedom of speech suffer longterm? Obviously we will see more on this case in the future.


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