Yahoo!, Inc. v. La Ligue Contre Le Racisme, 169 F. Supp. 2d 1181 (N.D.

Cal. 2001)

U.S. District Court for the Northern District of California - 169 F. Supp. 2d
1181 (N.D. Cal. 2001)
November 7, 2001

169 F. Supp. 2d 1181 (2001)

YAHOO!, INC., a Delaware corporation, Plaintiff,
v.
LA LIGUE CONTRE LE RACISME ET L'ANTISEMITISME, a French
association, et al., Defendants.
No. C-00-21275 JF.

United States District Court, N.D. California, San Jose Division.

November 7, 2001.

*1182 *1183 Michael Traynor, Benjamin K. Riley, Karen Daly, Laura Pirri,

Cooley Godward LLP, San Francisco, CA, Neil Jahss, Robert C. Vanderet, O'
Melveny & Myers, Los Angeles, CA, for Plaintiff.

Ronald S. Katz, Coudert Brothers, San Francisco, CA, Richard A. Jones, San
Jose, CA, for Defendants.

 
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

FOGEL, District Judge.

Plaintiff moves for summary judgment. Defendants oppose the motion. The
Court has read the moving and responding papers and has considered the oral
arguments of counsel presented on September 24, 2001. For the reasons set
forth below, the motion will be granted.

 
I. PROCEDURAL HISTORY

Defendants La Ligue Contre Le Racisme Et l'Antisemitisme ("LICRA") and

L'Union Des Etudiants Juifs De France, citizens of France, are non-profit
organizations dedicated to eliminating anti-Semitism. Plaintiff Yahoo!, Inc.
("Yahoo!") is a corporation organized under the laws of Delaware with its
principal place of business in Santa Clara, California. Yahoo! is an
Internet[1] service provider that operates various Internet websites and services
that any computer user can access at the Uniform Resource Locator
("URL") http://www.yahoo.com. Yahoo! services ending in the suffix, ".com,"
without an associated country code as a prefix or extension (collectively,
"Yahoo!'s U.S. Services") use the English language and target users who are
residents of, utilize servers based in and operate under the laws of the United
States. Yahoo! subsidiary corporations operate regional Yahoo! sites and
services in twenty other nations, including, for example, Yahoo! France, Yahoo!
India, and Yahoo! Spain. Each of these regional web sites contains the host
nation's unique two-letter code as either a prefix or a suffix in its URL (e.g.,
Yahoo! France is found at http://www.yahoo.fr and Yahoo! Korea
at http://www.yahoo.kr). Yahoo!'s regional sites use the local region's primary
language, target the local citizenry, and operate under local laws.

Yahoo! provides a variety of means by which people from all over the world
can communicate and interact with one another *1184 over the Internet.
Examples include an Internet search engine, e-mail, an automated auction site,
personal web page hostings, shopping services, chat rooms, and a listing of
clubs that individuals can create or join. Any computer user with Internet access
is able to post materials on many of these Yahoo! sites, which in turn are
instantly accessible by anyone who logs on to Yahoo!'s Internet sites. As
relevant here, Yahoo!'s auction site allows anyone to post an item for sale and
solicit bids from any computer user from around the globe. Yahoo! records
when a posting is made and after the requisite time period lapses sends an e-
mail notification to the highest bidder and seller with their respective contact
information. Yahoo! is never a party to a transaction, and the buyer and seller
are responsible for arranging privately for payment and shipment of goods.
Yahoo! monitors the transaction through limited regulation by prohibiting
particular items from being sold (such as stolen goods, body parts, prescription
and illegal drugs, weapons, and goods violating U.S. copyright laws or the
Iranian and Cuban embargos) and by providing a rating system through which
buyers and sellers have their transactional behavior evaluated for the benefit of
future consumers. Yahoo! informs auction sellers that they must comply with
Yahoo!'s policies and may not offer items to buyers in jurisdictions in which the
sale of such item violates the jurisdiction's applicable laws. Yahoo! does not
actively regulate the content of each posting, and individuals are able to post,
and have in fact posted, highly offensive matter, including Nazi-related
propaganda and Third Reich memorabilia, on Yahoo!'s auction sites.

On or about April 5, 2000, LICRA sent a "cease and desist" letter to Yahoo!'s
Santa Clara headquarters informing Yahoo! that the sale of Nazi and Third
Reich related goods through its auction services violates French law. LICRA
threatened to take legal action unless Yahoo! took steps to prevent such sales
within eight days. Defendants subsequently utilized the United States Marshal's
Office to serve Yahoo! with process in California and filed a civil complaint
against Yahoo! in the Tribunal de Grande Instance de Paris (the "French
Court").

The French Court found that approximately 1,000 Nazi and Third Reich related
objects, including Adolf Hitler's Mein Kampf, The Protocol of the Elders of
Zion (an infamous anti-Semitic report produced by the Czarist secret police in
the early 1900's), and purported "evidence" that the gas chambers of the
Holocaust did not exist were being offered for sale on Yahoo.com's auction site.
Because any French citizen is able to access these materials on Yahoo.com
directly or through a link on Yahoo.fr, the French Court concluded that the
Yahoo.com auction site violates Section R645-1 of the French Criminal Code,
which prohibits exhibition of Nazi propaganda and artifacts for sale.[2] On May
20, 2000, the French Court entered an order requiring Yahoo! to (1) eliminate
French citizens' access to any material on the Yahoo.com auction site that offers
for sale any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate
French citizens' access to web pages on Yahoo.com displaying text, extracts, or
quotations from Mein Kampf and Protocol of the Elders of Zion; (3) post a
warning to French citizens on Yahoo.fr that any search through Yahoo.com may
lead to sites containing material prohibited by Section R645-1 of the French
Criminal Code, and that such viewing of the prohibited material may result in
legal action against the Internet user; (4) remove from all browser directories
accessible in the *1185 French Republic index headings entitled "negationists"
and from all hypertext links the equation of "negationists" under the heading
"Holocaust." The order subjects Yahoo! to a penalty of 100,000 Euros for each
day that it fails to comply with the order. The order concludes:

 
We order the Company YAHOO! Inc. to take all necessary measures to
dissuade and render impossible any access via Yahoo.com to the Nazi artifact
auction service and to any other site or service that may be construed as
constituting an apology for Nazism or a contesting of Nazi crimes.

High Court of Paris, May 22, 2000, Interim Court Order No. 00/05308,
00/05309 (translation attested accurate by Isabelle Camus, February 16, 2001).
The French Court set a return date in July 2000 for Yahoo! to demonstrate its
compliance with the order.

Yahoo! asked the French Court to reconsider the terms of the order, claiming
that although it easily could post the required warning on Yahoo.fr, compliance
with the order's requirements with respect to Yahoo.com was technologically
impossible. The French Court sought expert opinion on the matter and on
November 20, 2000 "reaffirmed" its order of May 22. The French Court ordered
Yahoo! to comply with the May 22 order within three (3) months or face a
penalty of 100,000 Francs (approximately U.S. $13,300) for each day of non-
compliance. The French Court also provided that penalties assessed against
Yahoo! Inc. may not be collected from Yahoo! France. Defendants again
utilized the United States Marshal's Office to serve Yahoo! in California with
the French Order.

Yahoo! subsequently posted the required warning and prohibited postings in

violation of Section R645-1 of the French Criminal Code from appearing on
Yahoo.fr. Yahoo! also amended the auction policy of Yahoo.com to prohibit
individuals from auctioning:

 
Any item that promotes, glorifies, or is directly associated with groups or
individuals known principally for hateful or violent positions or acts, such as
Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not
prohibited under this policy. Expressive media, such as books and films, may be
subject to more permissive standards as determined by Yahoo! in its sole
discretion.

Yahoo Auction Guidelines (visited Oct. 23, 2001) . Notwithstanding these

actions, the Yahoo.com auction site still offers certain items for sale (such as
stamps, coins, and a copy of Mein Kampf) which appear to violate the French
Order.[3] While Yahoo! has removed the Protocol of the Elders of Zion from its
auction site, it has not prevented access to numerous other sites which
reasonably "may be construed as constituting an apology for Nazism or a
contesting of Nazi crimes."[4]

Yahoo! claims that because it lacks the technology to block French citizens
from accessing the Yahoo.com auction site to view materials which violate the
French *1186 Order or from accessing other Nazi-based content of websites on
Yahoo.com, it cannot comply with the French order without banning Nazi-
related material from Yahoo.com altogether. Yahoo! contends that such a ban
would infringe impermissibly upon its rights under the First Amendment to the
United States Constitution. Accordingly, Yahoo! filed a complaint in this Court
seeking a declaratory judgment that the French Court's orders are neither
cognizable nor enforceable under the laws of the United States.

Defendants immediately moved to dismiss on the basis that this Court lacks
personal jurisdiction over them. That motion was denied. [5] Defendants' request
that the Court certify its jurisdictional determination for interlocutory appeal
was denied without prejudice pending the outcome of Yahoo!'s motion for
summary judgment.

 
II. OVERVIEW
As this Court and others have observed, the instant case presents novel and
important issues arising from the global reach of the Internet. Indeed, the
specific facts of this case implicate issues of policy, politics, and culture that are
beyond the purview of one nation's judiciary. Thus it is critical that the Court
define at the outset what is and is not at stake in the present proceeding.

This case is not about the moral acceptability of promoting the symbols or

propaganda of Nazism. Most would agree that such acts are profoundly
offensive. By any reasonable standard of morality, the Nazis were responsible
for one of the worst displays of inhumanity in recorded history. This Court is
acutely mindful of the emotional pain reminders of the Nazi era cause to
Holocaust survivors and deeply respectful of the motivations of the French
Republic in enacting the underlying statutes and of the defendant organizations
in seeking relief under those statutes. Vigilance is the key to preventing
atrocities such as the Holocaust from occurring again.

Nor is this case about the right of France or any other nation to determine its
own law and social policies. A basic function of a sovereign state is to
determine by law what forms of speech and conduct are acceptable within its
borders. In this instance, as a nation whose citizens suffered the effects of
Nazism in ways that are incomprehensible to most Americans, France clearly
has the right to enact and enforce laws such as those relied upon by the French
Court here.[6]

What is at issue here is whether it is consistent with the Constitution and laws of
the United States for another nation to regulate speech by a United States
resident within the United States on the basis that such speech can be accessed
by Internet users in that nation. In a world in which ideas and information
transcend borders and the Internet in particular renders the physical distance
between speaker and audience virtually meaningless, the implications of this
question go far beyond the facts of this case. The modern world is home to
widely varied cultures with radically divergent value systems. There is little
doubt that Internet users in the United States routinely engage in speech that
violates, for example, China's laws against religious expression, the laws
of *1187 various nations against advocacy of gender equality or homosexuality,
or even the United Kingdom's restrictions on freedom of the press. If the
government or another party in one of these sovereign nations were to seek
enforcement of such laws against Yahoo! or another U.S.-based Internet service
provider, what principles should guide the court's analysis?

The Court has stated that it must and will decide this case in accordance with
the Constitution and laws of the United States. It recognizes that in so doing, it
necessarily adopts certain value judgments embedded in those enactments,
including the fundamental judgment expressed in the First Amendment that it is
preferable to permit the non-violent expression of offensive viewpoints rather
than to impose viewpoint-based governmental regulation upon speech. The
government and people of France have made a different judgment based upon
their own experience. In undertaking its inquiry as to the proper application of
the laws of the United States, the Court intends no disrespect for that judgment
or for the experience that has informed it.

 
III. LEGAL STANDARDS

A motion for summary judgment should be granted if there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial
burden of informing the Court of the basis for the motion and identifying the
portions of the pleadings, depositions, answers to interrogatories, admissions, or
affidavits that demonstrate the absence of a triable issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986).

If the moving party meets this initial burden, the burden shifts to the non-
moving party to present specific facts showing that there is a genuine issue for
trial. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. 2548. A
genuine issue for trial exists if the non-moving party presents evidence from
which a reasonable jury, viewing the evidence in the light most favorable to that
party, could resolve the material issue in his or her favor. Anderson, 477 U.S.
242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202; Barlow v. Ground, 943 F.2d
1132, 1134-36 (9th Cir. 1991).

 
IV. LEGAL ISSUES 
A. Actual Controversy

The Declaratory Judgment Act protects potential defendants from multiple

actions by providing a means by which a court declares in one action the rights
and obligations of the litigants. 28 U.S.C. § 2201. A declaratory judgment will
not expand a federal court's jurisdiction, but if jurisdiction exists, litigants have
earlier access to federal courts to spare potential defendants from the threat of
impending litigation. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70
S. Ct. 876, 94 L. Ed. 1194 (1950); Seattle Audubon Soc'y v. Moseley, 80 F.3d
1401, 1405 (9th Cir. 1996). Declaratory judgment actions are justiciable only if
there is an "actual controversy." 28 U.S.C. § 2201(a). The "actual controversy"
requirement is analyzed in the same manner as the "case or controversy"
standard under Article III of the United States Constitution. Aetna Life Ins. Co.
v. Haworth, 300 U.S. 227, 239-40, 57 S. Ct. 461, 81 L. Ed. 617 (1937).
The threshold question in any declaratory action thus is whether "there is a
substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the *1188 issuance of a declaratory
judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61
S. Ct. 510, 85 L. Ed. 826 (1941); National Basketball Ass'n v. SDC Basketball
Club, Inc., 815 F.2d 562, 565 (9th Cir.1987). The "[m]ere possibility, even
probability, that a person may in the future be adversely affected by official acts
not yet threatened does not create an `actual controversy' which is a prerequisite
created by the clear language of the [Declaratory Judgment Act]...." Garcia v.
Brownell, 236 F.2d 356, 358 (9th Cir.1956) cert. denied, 362 U.S. 963, 80 S. Ct.
880, 4 L. Ed. 2d 878 (1960). The party invoking federal jurisdiction bears the
burden of showing that it faces an immediate or actual injury. Rincon Band of
Mission Indians v. County of San Diego, 495 F.2d 1, 5 (9th Cir.1974), cert.
denied, 419 U.S. 1008, 95 S. Ct. 328, 42 L. Ed. 2d 283 (1974).

 
1. Status of the French Order

Defendants contend that the "actual controversy" requirement is not met in the
instant case. They point out that Yahoo! appealed the French Court's initial
order of May 22, 2000, and that a successful appeal would nullify the order of
November 20, 2000 that "reaffirmed" the May 22 order. They argue that even if
the May 22 order is upheld on appeal, the French court may find that Yahoo!
has substantially complied with the order. Alternatively, they assert that they
themselves may elect not to initiate the complex process the French Court
would use to fix an actual penalty, and that until that process is completed, there
is no order that could be enforced against Yahoo! in the United States. Finally,
Defendants offer declarations to the effect that they view Yahoo!'s revised
policies with respect to its auction site and removal of Protocol of the Elders of
Zion from its host sites as substantial compliance with the French order and that
accordingly they have no present intention of taking legal action against Yahoo!
in the United States.

While these points are facially appealing and suggest a way for the Court to
avoid deciding the sensitive and controversial issues presented herein, the facts
in the record do not support Defendants' position. First, there are no relevant
appellate proceedings presently pending in France. In its order of November 20,
2000, the French Court determined that Yahoo! is technologically and legally
capable of complying with the May 22 order and that Yahoo! is subject to a fine
of approximately $13,000 for each day of non-compliance. That order was not
appealed, and the record indicates that Yahoo! withdrew its appeal of the May
22 order on May 28, 2001 (Supp. Dec. of Mary Catherine Wirth, Exhibit A,
Aug. 19, 2001).

Second, the fact that any penalty against Yahoo! is provisional and would
require further legal proceedings in France prior to any enforcement action in
the United States does not mean that Yahoo! does not face a present and
ongoing threat from the existing French order. At oral argument, Defendants did
not dispute that if the penalty enforcement process were initiated, the French
Court could assess penalties retroactively for the entire period of Yahoo!'s non-
compliance. Despite their declarations to the effect that they are satisfied with
Yahoo!'s efforts to comply with the French order, Defendants have not taken
steps available to them under French law to seek withdrawal of the order or to
petition the French court to absolve Yahoo! from any penalty. [7]See Societe de
Conditionnement en Aluminium *1189 v. Hunter Engineering Co., Inc., 655
F.2d 938, 945 (9th Cir.1981) ("It is not relevant that Hunter attempted to
withdraw its `threat' after the filing of this lawsuit. We do think it relevant, in
the light of the circumstances, that Hunter has not indicated that it will not sue
SCAL for infringement or in any other manner agree to a non-adversary
position with respect to the patent.").
Third, it is by no means clear that Yahoo! can rely upon the assessment in
Defendants' declarations that it is in "substantial compliance" with the French
order. The French Court has not made such a finding, nor have Defendants
requested or stipulated that such a finding be made. As set forth earlier,
Yahoo.com continues to offer at least some Third Reich memorabilia as well
as Mein Kampf on its auction site and permits access to numerous web pages
with Nazi-related and anti-Semitic content. The fact that the Yahoo! does not
know whether its efforts to date have met the French Court's mandate is the
precise harm against which the Declaratory Judgment Act is designed to protect.

 
The Declaratory Judgment Act was designed to relieve potential defendants
from the Damoclean threat of impending litigation which a harassing adversary
might brandish, while initiating suit at his leisure or never. The Act permits
parties so situated to forestall the accrual of potential damages by suing for a
declaratory judgment, once the adverse positions have crystallized and the
conflict of interests is real and immediate.

Japan Gas Lighter Ass'n. v. Ronson Corp., 257 F. Supp. 219, 237 (D.N.J.1966).

 
2. Real and Immediate Threat
The French order prohibits the sale or display of items based on their
association with a particular political organization and bans the display of
websites based on the authors' viewpoint with respect to the Holocaust and anti-
Semitism. A United States court constitutionally could not make such an
order. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). The
First Amendment does not permit the government to engage in viewpoint-based
regulation of speech absent a compelling governmental interest, such as
averting a clear and present danger of imminent violence. R.A.V. v. City of St.
Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); Simon &
Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S.
105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991); Boos v. Barry, 485 U.S. 312, 108
S. Ct. 1157, 99 L. Ed. 2d 333 (1988); Police Dept. v. Mosley, 408 U.S. 92, 92 S.
Ct. 2286, 33 L. Ed. 2d 212 (1972); Brandenburg v. Ohio, 395 U.S. 444, 89 S.
Ct. 1827, 23 L. Ed. 2d 430 (1969); Kingsley Int'l Pictures Corp. v. Regents, 360
U.S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 (1959). In addition, the French
Court's mandate that Yahoo! "take all necessary measures to dissuade and
render impossible any access via Yahoo.com to the Nazi artifact auction service
and to any other site or service that may be construed as constituting an apology
for Nazism or a contesting of Nazi crimes" is far too general and imprecise to
survive the strict scrutiny required by the First Amendment. The phrase, "and
any other site or service that may be construed as an apology for Nazism or a
contesting of Nazi crimes" fails to provide Yahoo! with a sufficiently definite
warning as to what is proscribed. See, e.g., Coates v. Cincinnati, 402 U.S. 611,
91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). Phrases such as "all necessary
measures" and "render impossible" instruct Yahoo! to undertake efforts that will
impermissibly chill and perhaps even censor protected speech. See Board of
Airport Commissioners v. Jews for Jesus, 482 U.S. 569, 107 S. Ct. 2568, 96 L.
Ed. 2d 500 (1987); Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, *1190 31
L. Ed. 2d 408 (1972). "The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury." Elrod v.
Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) citing New
York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822
(1971).

Rather than argue directly that the French order somehow could be enforced in
the United States in a manner consistent with the First Amendment,
[8]
 Defendants argue instead that at present there is no real or immediate threat to
Yahoo!'s First Amendment rights because the French order cannot be enforced
at all until after the cumbersome process of petitioning the French court to fix a
penalty has been completed. They analogize this case to Int'l Soc. for Krishna
Consciousness of California, Inc. v. City of Los Angeles, 611 F. Supp. 315, 319-
20 (C.D.Cal. 1984), in which the City of Los Angeles sought a declaratory
judgment that a resolution limiting speech activities adopted by its Board of
Airport Examiners was constitutional. The district court concluded that the
action was unripe because the resolution could not take effect without
ratification by the City Council, which had not yet occurred. The cases,
however, are distinguishable. While Defendants present evidence that further
procedural steps in France are required before an actual penalty can be fixed,
there is no dispute that the French order is valid under French law and that the
French Court may fix a penalty retroactive to the date of the order. The essence
of the holding in the Krishna Consciousness case is that the subject resolution
had no legal effect at all.

Defendants also claim that there is no real or immediate threat to Yahoo!

because they do not presently intend to seek enforcement of the French order in
the United States. In Salvation Army v. Department of Community Affairs of the
State of New Jersey, 919 F.2d 183 (3rd Cir.1990), a religious group that
operated a family center for disadvantaged persons claimed a state statute
regulating boarding houses violated its right to the free exercise of religion.
After the group brought suit, the state authorities agreed outside of the judicial
proceedings to exempt the group from some of the provisions. The district court
then granted summary judgment and dismissed the action. On appeal, the group
claimed it still faced uncertainty with respect to future enforcement of the
statute because the exemptions were not legally binding and the regulations in
their entirety impermissibly intruded upon its First Amendment rights. The
Court of Appeals for the Third Circuit agreed with the trial court that there was
no immediate threat to the group because the state had provided an express
assurance that it would not enforce any of the waived provisions, no criminal
penalties could be imposed under the statute unless additional steps were taken
by the state, the state could not impose fines without giving notice and
opportunity to comply, and there was no evidence that the group's First
Amendment rights actually would be affected by the threat of future law suits.

Salvation Army is distinguishable from this case in several significant respects.

First, the New Jersey statute's penalties were "enforceable by the defendants
only prospectively..." Salvation Army, 919 F.2d at 192. The French order
permits retroactive penalties. Second, while the exemptions granted to the
Salvation Army allowed it to maintain the status quo, the French order had the
immediate effect of *1191 inducing Yahoo! to implement new restrictive
policies on its auction site. Third, while the perceived threat to the Salvation
Army was the potential withdrawal of the exemptions in the future, the
provisions of the French order that require Yahoo! to regulate the content of its
websites on Yahoo.com never have been waived, suspended or stayed and
apparently remain in full force and effect. Under these circumstances,
Defendants' assurances that they do not intend to enforce the order at the present
time do not remove the threat that they may yet seek sanctions against
Yahoo!'s present and ongoing conduct[9]. See Abbott Labs. v. Gardner, 387 U.S.
136, 154, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967) ("There is no question in the
present case that petitioners have sufficient standing as plaintiffs: the regulation
is directed at them in particular; it requires them to make significant changes in
their everyday business practices; if they fail to observe the Commissioner's rule
they are quite clearly exposed to the imposition of strong sanctions."); Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 57, 113 S. Ct. 2485, 125 L. Ed. 2d 38
(1993) (construing Abbott Laboratories to mean that if "[p]romulgation of the
challenged regulations present[s] plaintiffs with the immediate dilemma to
choose between complying with newly imposed, disadvantageous restrictions
and risking serious penalties for violation," the controversy is ripe).

 
3. Abstention.

Defendants next argue that this Court should abstain from deciding the instant
case because Yahoo! simply is unhappy with the outcome of the French
litigation and is trying to obtain a more favorable result here. Indeed, abstention
is an appropriate remedy for international forum-shopping. In Supermicro
Computer, Inc. v. Digitechnic, S.A., 145 F. Supp. 2d 1147 (N.D.Cal.2001), a
California manufacturer was sued by a corporate customer in France for selling
a defective product. The California company sought a declaratory judgment in
the United States that its products were not defective, that the French customer's
misuse of the product caused the product to fail, and that if the California
company was at fault, only limited legal remedies were available. The court
concluded that the purpose of the action for declaratory relief was to avoid an
unfavorable result in the French courts. It noted that the action was not filed
until a year after the French proceedings began, that the French proceedings
were still ongoing, and that the French defendants had no intent to sue in the
United States. It concluded that the declaratory relief action clearly was
"litigation involving the same parties and the same disputed transaction." Id., at
1152.

In the present case, the French court has determined that Yahoo!'s auction site
and website hostings on Yahoo.com violate French law. Nothing in Yahoo!'s
suit for declaratory relief in this Court appears to be an attempt to relitigate or
disturb the French court's application of French law or its orders with respect to
Yahoo!'s conduct in France.[10] Rather, the purpose of the present action is to
determine whether a United States court may *1192 enforce the French order
without running afoul of the First Amendment. The actions involve distinct
legal issues, and as this Court concluded in its jurisdictional order, a United
States court is best situated to determine the application of the United States
Constitution to the facts presented.[11] No basis for abstention has been
established.

 
4. Comity

No legal judgment has any effect, of its own force, beyond the limits of the
sovereignty from which its authority is derived. 28 U.S.C. § 1738. However, the
United States Constitution and implementing legislation require that full faith
and credit be given to judgments of sister states, territories, and possessions of
the United States. U.S. CONST. art. IV, §§ 1, cl. 1; 28 U.S.C. § 1738. The
extent to which the United States, or any state, honors the judicial decrees of
foreign nations is a matter of choice, governed by "the comity of
nations." Hilton v. Guyot, 159 U.S. 113, 163, 16 S. Ct. 139, 40 L. Ed. 95 (1895).
Comity "is neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other." Hilton, 159 U.S. at 163-64, 16 S. Ct.
139 (1895). United States courts generally recognize foreign judgments and
decrees unless enforcement would be prejudicial or contrary to the country's
interests. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435,
440 (3d Cir.1971) cert. denied, 405 U.S. 1017, 92 S. Ct. 1294, 31 L. Ed. 2d 479
(1972); Laker Airways v. Sabena Belgian World Airlines, 731 F.2d 909, 931
(D.C.Cir.1984) ("[T]he court is not required to give effect to foreign judicial
proceedings grounded on policies which do violence to its own fundamental
interests."); Tahan v. Hodgson, 662 F.2d 862, 864 (D.C.Cir.1981)
("[R]equirements for enforcement of a foreign judgment expressed in Hilton are
that ... the original claim not violate American public policy ... that it not be
repugnant to fundamental notions of what is decent and just in the State where
enforcement is sought.").

As discussed previously, the French order's content and viewpoint-based

regulation of the web pages and auction site on Yahoo.com, while entitled to
great deference as an articulation of French law, clearly would be inconsistent
with the First Amendment if mandated by a court in the United States. What
makes this case uniquely challenging is that the Internet in effect allows one to
speak in more than one place at the same time. Although France has the
sovereign right to regulate what speech is permissible in France, this Court may
not enforce a foreign order that violates the protections of the United States
Constitution by chilling protected speech that occurs simultaneously within our
borders. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995)
(declining to enforce British libel judgment because British libel standards
"deprive the plaintiff of his constitutional rights"); Bachchan v. India Abroad
Publications, Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661 (Sup.Ct.1992)
(declining to enforce a British libel judgment because of its "chilling effect" on
the First Amendment); see also, Abdullah v. Sheridan Square Press, Inc., No.
93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994) (dismissing a libel
claim brought under English law because "establishment of a claim for libel
under the British law of defamation would be antithetical to the First
Amendment protection accorded to the defendants."). *1193 The reason for
limiting comity in this area is sound. "The protection to free speech and the
press embodied in [the First] amendment would be seriously jeopardized by the
entry of foreign [] judgments granted pursuant to standards deemed appropriate
in [another country] but considered antithetical to the protections afforded the
press by the U.S. Constitution." Bachchan, 585 N.Y.S.2d at 665. Absent a body
of law that establishes international standards with respect to speech on the
Internet and an appropriate treaty or legislation addressing enforcement of such
standards to speech originating within the United States, the principle of comity
is outweighed by the Court's obligation to uphold the First Amendment.[12]

 
B. Rule 56(f)

FED. R. CIV. P. 56(f) permits a court either to postpone determination of a

motion for summary judgment or to deny such motion pending further
discovery. A court may take such action when "it appear[s] from the affidavits
of a party opposing the motion that the party cannot for reasons stated present
by affidavit facts essential to justify the party's opposition." FED. R. CIV. P.
56(f). To justify a continuance, the Rule 56(f) motion must demonstrate 1) why
the movant needs additional discovery and 2) how the additional discovery
likely will create a genuine issue of material fact. Krim v. BancTexas Group,
Inc., 989 F.2d 1435, 1442 (5th Cir. 1993).

Defendants assert that further discovery may lead to the development of triable
issues of fact concerning the extent to which Yahoo!'s modifications to its
auction site have affected its potential liability under the French order and as to
Yahoo!'s technological ability to comply with the order. Defendants contend
that these issues are material because the law is unsettled as to whether the First
Amendment protects speech originating within the United States that is
expressly targeted at a foreign market. In Desai v. Hersh, 719 F. Supp. 670, 676
(N.D.Ill.1989) aff'd, 954 F.2d 1408 (7th Cir.1992), an author published a book
in the United States about former Secretary of State Henry Kissinger. A former
Indian government official who was mentioned in the book brought a
defamation action in the United States, seeking to apply Indian law. Although it
held that the First Amendment applied extraterritorially to publication of the
book and therefore refused to apply Indian defamation law, it also commented
that "for purposes of suits brought in United States courts, first amendment
protections do not apply to all extraterritorial publications by persons under the
protections of the Constitution." Id., 719 F. Supp. at 676.

Relying upon this dictum, Defendants suggest that discovery may produce
additional evidence that would preclude summary judgment on First
Amendment grounds. However, unlike the defendant in Desai, who claimed
protection under the First Amendment for his extraterritorial conduct, Yahoo!
seeks protection for its actions in the United States, specifically the ways in
which it configures and operates its auction and Yahoo.com sites. Moreover, the
French order requires Yahoo! not only to render it impossible for French
citizens to access the proscribed content but also to interpret an impermissibly
overbroad and vague definition of the content that is proscribed. If a
hypothetical party were physically present in France engaging in expression that
was *1194 illegal in France but legal in the United States, it is unlikely that a
United States court would or could question the applicability of French law to
that party's conduct. However, an entirely different case would be presented if
the French court ordered the party not to engage in the same expression in the
United States on the basis that French citizens (along with anyone else in the
world with the means to do so) later could read, hear or see it. While the advent
of the Internet effectively has removed the physical and temporal elements of
this hypothetical, the legal analysis is the same.

In light of the Court's conclusion that enforcement of the French order by a

United States court would be inconsistent with the First Amendment, the factual
question of whether Yahoo! possesses the technology to comply with the order
is immaterial. Even assuming for purposes of the present motion that Yahoo!
does possess such technology,[13] compliance still would involve an
impermissible restriction on speech. Accordingly, Defendants' motion pursuant
to Rule 56(f) motion will be denied.
 
V. CONCLUSION

Yahoo! seeks a declaration from this Court that the First Amendment precludes
enforcement within the United States of a French order intended to regulate the
content of its speech over the Internet. Yahoo! has shown that the French order
is valid under the laws of France, that it may be enforced with retroactive
penalties, and that the ongoing possibility of its enforcement in the United
States chills Yahoo!'s First Amendment rights. Yahoo! also has shown that an
actual controversy exists and that the threat to its constitutional rights is real and
immediate. Defendants have failed to show the existence of a genuine issue of
material fact or to identify any such issue the existence of which could be
shown through further discovery. Accordingly, the motion for summary
judgment will be granted. The Clerk shall enter judgment and close the file.

IT IS SO ORDERED.

NOTES

[1] The "Internet" and "World Wide Web" are distinct entities, but for the sake
of simplicity, the Court will refer to them collectively as the "Internet."
Generally speaking, the Internet is a decentralized networking system that links
computers and computer networks around the world. The World Wide Web is a
publishing forum consisting of millions of individual websites that contain a
wide variety of content.

[2] French law also prohibits purchase or possession of such matter within
France.

[3] The Court takes judicial notice that on October 24, 2001, the key word
"nazi" on the Yahoo.com auction site search engine called up sixty-nine Nazi-
related items for sale, most of which were stamps and coins from the Third
Reich. One copy of Mein Kampf was for sale.

[4] The Court also takes judicial notice that on October 24, 2001, a search on
Yahoo.com of "Jewish conspiracy" produced 3,070 sites, the search
"Protocols/10 Zion produced 3,560 sites, and the search" "Holocaust /5 `did not
happen,'" produced 821 sites. The search "National Socialist Party" led to a
website of an organization promoting modern day Nazism.

[5] See Yahoo!, Inc. v. La Ligue Contra Le Racisme et L'Antisemitisme, 145 F.

Supp. 2d 1168 (N.D.Cal.2001).

[6] In particular, there is no doubt that France may and will continue to ban the
purchase and possession within its borders of Nazi and Third Reich related
matter and to seek criminal sanctions against those who violate the law.

[7] The Court inquired at oral argument whether Defendants would be willing to
take such steps in order to avoid the necessity of the present adjudication but
has received no indication to date that they would.

[8] As is discussed below, Defendants do argue unpersuasively that further

discovery might affect the First Amendment analysis.

[9] Again, it would appear that legal means are available to Defendants both in
France and in this Court to eliminate such a threat, but as yet Defendants have
not availed themselves of these procedures.

[10] Arguably, Yahoo! does seek to relitigate the French court's factual
determination that Yahoo! does possess the technology to comply with the
French order. For the reasons discussed herein, the Court concludes that
Yahoo!'s ability to comply with the order is immaterial to the question of
whether enforcement of the order in the United States would be constitutional.
[11] Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 145
F.Supp 2d. 1168, 1179 (N.D.Cal.2001).

[12] The Court expresses no opinion as to whether any such treaty or legislation
would or could be constitutional.

[13] As noted earlier, the French court expressly found against Yahoo! as to this
point in its order of November 20, 2000.