January 13, 2006
Ninth Circuit Dismisses Yahoo Lawsuit For Lack of Ripeness
The Ninth Circuit has reversed and remanded to the lower court to dismiss without prejudice Yahoo's suit against the French civil rights groups La Ligue Contre le Racisme et l'Antisemitisme (LICRA) and L'Union des Etudiants Juifs de France (UEJF). The lower court had previously decided in favor of Yahoo! The two groups had sued Yahoo! in the French courts over its advertising and sale of Nazi memorabilia. The groups obtained a favorable judgment, which Yahoo! wished to have declared unenforceable in US courts.
"Yahoo!, an American Internet service provider, brought suit in federal district court in diversity against La Ligue Contre Le Racisme et L'Antisemitisme ("LICRA") and L'Union des Etudiants Juifs de France ("UEJF") seeking a declaratory judgment that two interim orders by a French court are unrecognizable and unenforceable. The district court held that the exercise of personal jurisdiction over LICRA and UEJF was proper, that the dispute was ripe, that abstention was unnecessary, and that the French orders are not enforceable in the United States because such enforcement would violate the First Amendment. The district court did not reach the question whether the orders are recognizable. LICRA and UEJF appeal only the personal jurisdiction, ripeness, and abstention holdings. A majority of the en banc panel holds, as explained in Part II of this opinion, that the district court properly exercised personal jurisdiction over LICRA and UEJF. A plurality of the panel concludes, as explained in Part III of this opinion, that the case is not ripe under the criteria of Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681 (1967). We do not reach the abstention question."
"Whether a dispute is sufficiently ripe to be fit for judicial decision depends not only on the state of the factual record. It depends also on the substantive legal question to be decided. If the legal question is straightforward, relatively little factual development may be necessary. .....It is thus important to a ripeness analysis that we specify the precise legal question to be answered. Depending on the legal question, the case may be ripe or unripe. If we ask the wrong legal question, we risk getting the wrong answer to the ripeness question. The legal question presented by this case is whether the two interim orders of the French court are enforceable in this country. These orders, by their explicit terms, require only that Yahoo! restrict access by Internet users located in France. The orders say nothing whatsoever about restricting access by Internet users in the United States. We are asked to decide whether enforcement of these interim orders would be "repugnant" to California public policy. There is currently no federal statute governing recognition of foreign judgments in the federal courts. ...The federal full faith and credit statute, 28 U.S.C. § 1738, governs only judgments rendered by courts of states within the United States. In diversity cases, enforceability of judgments of courts of other countries is generally governed by the law of the state in which enforcement is sought. ...
"In a typical enforcement case, the party in whose favor the foreign judgment was granted comes to an American court affirmatively seeking enforcement. The standard rule in such a case is that the federal court sitting in diversity applies the law of the state in which it sits. However, this is not the typical case, for the successful plaintiffs in the French court do not seek enforcement. Rather, Yahoo!, the unsuccessful defendant in France, seeks a declaratory judgment that the French court's interim orders are unenforceable anywhere in this country. Insofar as the issue is whether the French court's orders are enforceable in California, it is clear that California law governs. However, it is less clear whose law governs when enforceability in other states is at issue. This is a potentially difficult choice-of-law question, but we do not need to answer it in order to decide ripeness. First, the central issue is enforceability in California. Therefore, if the suit is unripe under California law, we should not decide the case, irrespective of whether it might be ripe under the law of some other state."
The court went on: "California, along with many other states, has adopted the Uniform Foreign Money-Judgments Recognition Act ... The relevant standard for enforceability under the Act is whether "the cause of action or defense on which the judgment is based is repugnant to the public policy of this state."... However, the Act is not directly applicable to this case, for it does not authorize enforcement of injunctions. ...But neither does the Uniform Act prevent enforcement of injunctions, for its savings clause specifies that the Act does not foreclose enforcement of foreign judgments "in situations not covered by [the Act]." ...Because the Uniform Act does not cover injunctions, we look to general principles of comity followed by the California courts. We may appropriately consult the Restatement (Third) of the Foreign Relations Law of the United States ...There is very little case law in California dealing with enforceability of foreign country injunctions under general principles of comity, but that law is consistent with the repugnancy standard of the Restatement. ...
"With the suit in its current state, it is difficult to know whether enforcement of the French court's interim orders would be repugnant to California public policy. The first difficulty is evident. As indicated by the label "interim," the French court contemplated that it might enter later orders. We cannot know whether it might modify these "interim" orders before any attempt is made to enforce them in the United States.
"A second, more important, difficulty is that we do not know whether the French court would hold that Yahoo! is now violating its two interim orders. After the French court entered the orders, Yahoo! voluntarily changed its policy to comply with them, at least to some extent. There is some reason to believe that the French court will not insist on full and literal compliance with its interim orders, and that Yahoo!'s changed policy may amount to sufficient compliance....
LICRA and UEJF insist that Yahoo! has now, in their words, "substantially complied" with the French court's orders. We take this to be a statement that, in their view, Yahoo! has complied "in large measure" with the orders. For its part, however, Yahoo! insists that it continues to be in serious violation of the orders. The district court did not hold that Yahoo! is in violation, substantial or otherwise, of the French court's orders. It wrote only that Yahoo! does not "appear" to be in full compliance with the French court's order with respect to its auction site, and that various anti-semitic sites continue to be accessible through yahoo. com. 169 F. Supp. 2d at 1185. There is only one court that can authoritatively tell us whether Yahoo! has now complied "in large measure" with the French court's interim orders. That is, of course, the French court....
"A third difficulty is related to the second. Because we do not know whether Yahoo! has complied "in large measure" with the French court's orders, we cannot know what effect, if any, compliance with the French court's orders would have on Yahoo!'s protected speech-related activities. We emphasize that the French court's orders require, by their terms, only a limitation on access to anti-semitic materials by users located in France. The orders do not by their terms limit access by users outside France in any way. Yahoo! contended in the French court that it was technically too difficult to distinguish between users inside and outside France. As described above, the French court commissioned a report by three experts to determine if Yahoo!'s contention were true. The experts disagreed with Yahoo!, concluding that Yahoo! is readily able to distinguish between most users inside and outside France.
..."In its briefing to this court, Yahoo! contends that restricting access by French Internet users in a manner sufficient to satisfy the French court would in some unspecified fashion require Yahoo! simultaneously to restrict access by Internet users in the United States. This may or may not be true. It is almost certainly not true if Yahoo! is now complying "in large measure" with the French court's orders, for in that event the French court will almost certainly hold that no further compliance is necessary. Even if the measures Yahoo! has already taken restrict access by American Internet users to anti-semitic materials, this has no bearing on Yahoo!'s First Amendment argument. By its own admission, Yahoo! has taken these measures entirely of its own volition, for reasons entirely independent of the French court's orders.
"However, it is possible, as Yahoo! contends, that it has not complied "in large measure" with the French court orders, and that the French court would require further compliance. It is also possible, as Yahoo! contends, that further compliance might have the necessary consequence of requiring Yahoo! to restrict access by American Internet users. But Yahoo! has been vague in telling us in what ways, and for what reasons, it believes further compliance might have that consequence. One possible reason for Yahoo!'s vagueness might be that its contention is ill-founded, and that a detailed explanation would reveal that fact. We are not now in a position to judge this. Another, more important, reason -- not merely a possible reason -- for its vagueness is that Yahoo! has no way of knowing what further compliance might be required by the French court. Until it knows what further compliance (if any) the French court will require, Yahoo! simply cannot know what effect (if any) further compliance might have on access by American users.
"The possible -- but at this point highly speculative -- impact of further compliance with the French court's orders on access by American users would be highly relevant to the question whether enforcement of the orders would be repugnant to California public policy. But we cannot get to that question without knowing whether the French court would find that Yahoo! has already complied "in large measure," for only on a finding of current noncompliance would the issue of further compliance, and possible impact on American users, arise.
"Without a finding that further compliance with the French court's orders would necessarily result in restrictions on access by users in the United States, the only question in this case is whether California public policy and the First Amendment require unrestricted access by Internet users in France. In other words, the only question would involve a determination whether the First Amendment has extraterritorial application. The extent of First Amendment protection of speech accessible solely by those outside the United States is a difficult and, to some degree, unresolved issue. Compare, e.g., Desai v. Hersh, 719 F. Supp. 670, 676 (N.D. Ill. 1989) ("For purposes of suits brought in the United States courts, first amendment protections do not apply to all extraterritorial publications by persons under the protections of the Constitution."), and Laker Airways Ltd. v. Pan American Airways, Inc., 604 F. Supp. 280, 287 (D.D.C. 1984) ("It is less clear, however, whether even American citizens are protected specifically by the First Amendment with respect to their activities abroad[.]"), with Bullfrog Films, Inc. v. Wick, 646 F. Supp. 492, 502 (C. D. Cal. 1986) ("There can be no question that, in the absence of some overriding governmental interest such as national security, the First Amendment protects communications with foreign audiences to the same extent as communications within our borders."), aff'd, 847 F.2d 502 (9th Cir. 1988). We are thus uncertain about whether, or in what form, a First Amendment question might be presented to us. If the French court were to hold that Yahoo!'s voluntary change of policy has already brought it into compliance with its interim orders "in large measure," no First Amendment question would be presented at all. Further, if the French court were to require additional compliance with respect to users in France, but that additional compliance would not require any restriction on access by users in the United States, Yahoo! would only be asserting a right to extraterritorial application of the First Amendment. Finally, if the French court were to require additional compliance with respect to users in France, and that additional compliance would have the necessary consequence of restricting access by users in the United States, Yahoo! would have both a domestic and an extraterritorial First Amendment argument. The legal analysis of these different questions is different, and the answers are likely to be different as well.
..."Yahoo! argues that any restriction on speech and speech-related activities resulting from the French court's orders is a substantial harm under the First Amendment. We are acutely aware that this case implicates the First Amendment, and we are particularly sensitive to the harm that may result from chilling effects on protected speech or expressive conduct. In this case, however, the harm to First Amendment interests -- if such harm exists at all -- may be nowhere near as great as Yahoo! would have us believe. Yahoo! has taken pains to tell us that its adoption of a new hate speech policy after the entry of the French court's interim orders was motivated by considerations independent of those orders. Further, Yahoo! refuses to point to anything that it is now not doing but would do if permitted by the orders. In other words, Yahoo! itself has told us that there is no First Amendment violation with respect either to its previous (but now abandoned) speech-related activities, or to its future (but not currently engaged in) speech-related activities. Any restraint on such activities is entirely voluntary and self-imposed.
"The only potential First Amendment violation comes from the restriction imposed by the interim orders -- if indeed they impose any restrictions -- on the speech-related activities in which Yahoo! is now engaged, and which might be restricted if further compliance with the French court's orders is required. For example, Yahoo! continues to allow auctions of copies of Mein Kampf , and it maintains that the French court's orders prohibit it from doing so. The French court might find that Yahoo! has not yet complied "in large measure" with its orders, and that Yahoo! is prohibited by its orders from allowing auctions of copies of Mein Kampf.
"Even if the French court took this step, Yahoo!'s claim to First Amendment protection would be limited. We emphasize that the French court's interim orders do not by their terms require Yahoo! to restrict access by Internet users in the United States. They only require it to restrict access by users located in France. That is, with respect to the Mein Kampf example, the French court's orders -- even if further compliance is required -- would by their terms only prohibit Yahoo! from allowing auctions of copies of Mein Kampf to users in France.
"The core of Yahoo!'s hardship argument may thus be that it has a First Amendment interest in allowing access by users in France. Yet under French criminal law, Internet service providers are forbidden to permit French users to have access to the materials specified in the French court's orders. French users, for their part, are criminally forbidden to obtain such access. In other words, as to the French users, Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. As we indicated above, the extent -- indeed the very existence -- of such an extraterritorial right under the First Amendment is uncertain."
Read the entire opinion here.
"A Million Little Pieces" Will Add a Little Note
The publisher of "A Million Little Pieces" announced that it will add author James Frey's note to future copies saying that he had changed some material in the book. Frey has been under fire by critics, including those at the website The Smoking Gun, who say that much of the work is invented. Read more here. Read more about the controversy in a New York Times article here.
January 12, 2006
Zuendel Trial to Resume in Early February
The German judge in charge of Ernest Zuendel's "Holocaust denial" trial has ordered that the proceedings resume on February 9 and has indicated that the verdict is expected March 16. The trial was abruptly halted in November after the judge concluded that Zuendel's defense lawyer had submitted improper pleadings to the court and tried to associate a disbarred attorney with the defense team. Zuendel is charged with violating German laws against denying the existence of the Holocaust in print. Read more here.
Movie Studio to Open in Baton Rouge
Louisiana's favorable tax climate for film production has induced one company to purchase a partially finished studio in Baton Rouge and begin plans for its completion. The Celtic Group, in partnership with Nova Features of Los Angeles, has purchased rapper Master P's former facility, and is planning to develop film projects in the state beginning in the near future. Read more here.
"They Say It's Your Birthday"
Howard Stern was born on this day in 1954, Rush Limbaugh on this day in 1951. French writer and lawyer Charles Perrault was born on this day in 1628.
January 11, 2006
David Irving on Trial in Austria for Holocaust Denial; Read What Deborah Lipstadt Has to Say About Her Onetime Courtroom Opponent
Historian Deborah Lipstadt thinks David Irving should not be on trial in Austria for his views on the Holocaust. Austria, like several other European nations, has laws that forbid denial of the existence of that event and it arrested Irving last November for statements he made some 15 years ago. Although Irving sued Lipstadt for defamation in an English court over her book Denying the Holocaust, a case which she and her publishers won (see accounts in Richard J. Evans, Lying About Hitler: History, the Holocaust and the David Irving Trial, Basic Books, 2002 and D. D. Guttenplan, The Holocaust on Trial, NY: Norton, 2002), Lipstadt says Austria should just let Irving "go and let him fade from everyone's radar screens." Read more here in a BBC interview. Compare with the ongoing case of Holocaust denier Ernest Zuendel in Germany.
Read more about the Irving-Lipstadt libel trial here.
Documentary Filmmakers' Statement of Best Practices in Fair Use
The Center for Social Media and the Program on Intellectual Property and the Public Interest at the Washington College of Law, American University, have published a Statement of Best Practices in Fair Use for documentary filmmakers. Read more about the project at the Center here. The site also provides other helpful resources such as guides from Professors Peter Jaszi on what material may be characterized as "free use" and Peter Hirtle on how to find out what is in the public domain.
January 10, 2006
Second Circuit Rules Tax Court Not Subject To FOIA
The Second Circuit, sounding very tired, ruled in Megibow v. Clerk of the United States Tax Court, considered whether the Tax Court "...qualifies as a court of the United States, and is therefore expressly outside the ambit of FOIA. See 5 U.S.C. § 551(1)(B) (excluding from FOIA "the courts of the United States"). The question is one of first instance, and heretofore has not been addressed by us. The district court below...in a thorough and well-reasoned opinion, concluded that the Tax Court is, in fact, a court for the purposes of FOIA. Accordingly, it held that FOIA could not be applied to the Tax Court. We affirm for the reasons given by the district court. We have considered all of Appellant's arguments and find them to be without merit. The judgment of the district court is hereby AFFIRMED." Read the entire ruling (although there isn't much more) here. The lower court decision is Megibow v. Clerk of the United States Tax Court, 2004 U.S. Dist. LEXIS 17698; 94 A.F.T.R.2d (RIA) 5804.
In a related (non-media law) case, Megibow v. Commissioner, decided several days later, the two judge panel dismissed the appeal (a third judge having recused himself). The judges wrote: "Notably absent from appellant's brief is any argument that the tax court's decision was incorrect on the merits. Appellant vaguely challenges the procedural fairness of the proceedings below. In lieu of an argument, however, counsel has provided this Court with pages of Supreme Court precedent without any application of the law to the facts of this case. Appellant's excursion into the tax court's jurisdiction and the role of its special trial judges for almost twenty pages of his brief appears to argue that Judge Wherry is a Special Trial Judge, rather than a Tax Court Judge. Appointed by President Bush on April 23, 2003, Judge Wherry is most assuredly a Tax Court Judge, a fact which was available in the public record at all relevant times.
"As to the issue of procedural due process, appellant labels a single case, quoted at great length, the "Supreme Court Decision Governing Everything," but does not tell us how it applies to the facts of this case. Despite Judge Wherry's first grant of an extension for the filings of appellant's opening and reply briefs, appellant argues that the court's denial of his second motion for an extension was influenced by an "ex parte communication" from the government, i.e., the government's brief in opposition. This contention is wholly without merit; the record clearly indicates appellant's counsel was sent a copy of the allegedly concealed brief the same day it was filed with the court.
"Appellant also fails to challenge the merits of the court's denial of petitioner's motion for summary judgment. Contrary to appellant's contentions, the court did not refuse to file petitioner's motion in violation of a procedural rule, but rather denied the motion in its opinion because "the purposes of summary judgment would not be served by a ruling thereof." Because appellant does not challenge this opinion on the merits, he has waived any challenge to its correctness on appeal.
"Where appellant has been represented by counsel throughout these proceedings, it is "not our obligation to ferret out a party's arguments. That, after all, is the purpose of briefing."...We feel obligated to note our serious concerns about the quality of representation provided by the petitioner's attorney. We admonish counsel to follow the briefing requirements imposed pursuant to Federal Rule of Appellate Procedure 28(a), and we remind him of his professional duty to provide quality representation to his clients. Continuing conduct of this nature could subject counsel to sanctions by this Court.
"For the foregoing reasons, the appeal is DISMISSED." Read the entire ruling here.
Howard Stern Makes His Bow on Satellite Radio
Howard Stern made his first appearance on satellite radio yesterday, celebrating with a word that you can't say on the FCC controlled airwaves. Joining him was George Takei, Star Trek's Mr. Sulu, who will be Stern's announcer. Read more here.
Lawyers for AP, Plaintiff Ask Judge to Unseal Records in Cosby Case
Lawyers for the Associated Press and for the plaintiff in a civil suit accusing comedian Bill Cosby of sexual assault have asked U. S. District Court judge Eduardo Robreno to unseal some records pertaining to the proceeding. The plaintiff's attorneys say Cosby has been commenting on the case to the media; Cosby's lawyers claim release of such information would be prejudicial. In court Monday, details of Cosby's interview deal with the National Enquirer also came out. The tabloid apparently was willing to let him edit the piece. Read more here in the Biloxi Sun-Herald.
January 9, 2006
The Smoking Gun Calls James Frey's Book Fiction
David Rosenbaum, Retired New York Times Reporter, Dies
Retired New York Times political reporter David Rosenbaum died Sunday at the age of 63 from the effects of a mugging Friday evening near his Washington DC home. Rosenbaum and a colleague won the 1990 George Polk Award for National Reporting. Read more here and here.
Judge Rakoff's Opinion in Associated Press v. DOD
Here is Judge Rakoff's opinion and order in the Associated Press v. DOD case.