FACT SUMMARY

‎The League Against Racism and AntiSemitism (LICRA) and The Union of Jewish Students of‎ France, citizens of France, are non-profit organizations dedicated to eliminating anti-Semitism. Yahoo!, Inc., operates various Internet websites and services that any computer user can access at the uniform resource locator (URL) www.yahoo.com . Yahoo! subsidiary corporations operate regional Yahoo! sites and services in many other nations, including France. Yahoo!’s auction site allows anyone to post an item for sale and solicit bids from any computer user around the globe. 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 embargoes). 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 items 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 memorabilia, including Nazi objects. LICRA filed suit against Yahoo! in France based on a French law banning the sale of Nazi- and Third Reich–related goods through auction services. The French court concluded that the Yahoo.com auction site violated the French Criminal Code, which prohibits exhibition of Nazi propaganda and artifacts for sale. Yahoo! contends that such a ban would infringe impermissibly upon its rights under the First Amendment to the U.S. Constitution. Accordingly, Yahoo! filed a lawsuit in a U.S. federal district court seeking a declaratory judgment that the French court’s orders are neither cognizable nor enforceable under the laws of the United States. SYNOPSIS OF DECISION AND OPINION The district court ruled in favor of Yahoo!, holding that U.S. courts were not bound by judgments of foreign courts when the judgment is inconsistent with the Constitution and laws of the United States. The court reasoned that because the display of Nazi memorabilia could not be prohibited in the United States because of First Amendment concerns, a U.S. court cannot honor a foreign judgment that would violate the Constitution were it to be applied in the United States. Moreover, although France has the sovereign right to regulate what speech is permissible in France, U.S. courts may not enforce a foreign order that violates the protections of the U.S. Constitution by regulating protected speech that occurs simultaneously within U.S. and French borders. The court based its authority on the concept of comity. WORDS OF THE COURT: Comity “[According to our federal law] [n]o legal judgment has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. Although 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, 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. Comity is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.”

1. Why did Yahoo! choose to obtain a declaratory judgment from a U.S. court rather than appeal the ruling in the French courts?

2. In effect, isn’t the U.S. court ruling that the U.S. Constitution protects American companies even when they do business in a foreign country that does not recognize the concepts embodied by our First Amendment?