Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAHOO! INC., a Delaware
corporation,
Plaintiff-Appellee,
v. No. 01-17424
LA LIGUE CONTRE LE RACISME ET D.C. No.
CV-00-21275-JF
L’ANTISEMITISME, a French
association; L’UNION DES OPINION
ETUDIANTS JUIFS DE FRANCE, a
French association,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
March 24, 2005—San Francisco, California
Filed January 12, 2006
Before: Mary M. Schroeder, Chief Judge, and
Warren J. Ferguson, Diarmuid F. O’Scannlain,
Michael Daly Hawkins, A. Wallace Tashima,
William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,
Circuit Judges.
403
404 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
2 OPINIONS;
Per Curiam Opinion;
Opinion by Judge William A. Fletcher;
Concurrence by Judge Ferguson;
Concurrence by Judge O’Scannlain;
Concurrence by Judge Tashima;
Partial Concurrence and Partial Dissent by Judge Fisher
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 409
COUNSEL
Randol Schoenberg, Burris & Schoenberg, Los Angeles, Cali-
fornia; Robert A. Christopher, Coudert Brothers, Palo Alto,
California; Mark D. Lebow, Sokolow Carreras, New York,
New York, for the defendants-appellants.
Michael Traynor, Cooley, Godward, Castro, Huddelson &
Tatum, San Francisco, California; Robert C. Vanderet,
O’Melveney & Myers, Los Angeles, California, for the
plaintiff-appellee.
Ann Brick, ACLU, San Francisco, California; John B. Morris,
Jr., Alan B. Davidson, Center for Democracy & Technology,
Washington, D.C., for amici American Booksellers Founda-
tion for Free Expression, et al.
Jodie L. Kelley, Brian Hauck, Jenner & Block, Washington,
D.C.; Stephen A. Bokat, Robin S. Conrad, Joshua A. Ulman,
National Chamber Litigation Center, Washington, D.C., for
amici Chamber of Commerce of the United States, et al., and
for amicus Center for Democracy.
OPINION
PER CURIAM:
A majority of the en banc court (Judge W.A. Fletcher,
joined by Chief Judge Schroeder and Judges Hawkins, Fisher,
Gould, Paez, Clifton, and Bea) concludes that the district
court had personal jurisdiction over the defendants. Of that
majority, three judges (Chief Judge Schroeder, and Judges
W.A. Fletcher and Gould) conclude that the action should be
dismissed for lack of ripeness. Five judges (Judge Fisher,
joined by Judges Hawkins, Paez, Clifton, and Bea) conclude
that the case is ripe for adjudication. The three remaining
410 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
judges (Judges Ferguson, O’Scannlain, and Tashima) con-
clude that the action should be dismissed because the district
court lacked personal jurisdiction over the defendants.
A majority of the en banc court having voted therefor, the
judgment of the district court is REVERSED and the case
REMANDED with directions to dismiss the action without
prejudice.
YAHOO! INC., a Delaware
corporation,
Plaintiff-Appellee,
v. No. 01-17424
LA LIGUE CONTRE LE RACISME ET D.C. No.
CV-00-21275-JF
L’ANTISEMITISME, a French
association; L’UNION DES OPINION
ETUDIANTS JUIFS DE FRANCE, a
French association,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
March 24, 2005—San Francisco, California
Filed January 12, 2006
Before: Mary M. Schroeder, Chief Judge, and
Warren J. Ferguson, Diarmuid F. O’Scannlain,
Michael Daly Hawkins, A. Wallace Tashima,
William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,
Circuit Judges.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 411
Opinion by Judge William A. Fletcher
W. FLETCHER, Circuit Judge, with whom SCHROEDER,
Chief Circuit Judge, and GOULD, Circuit Judge, join as to
the entire opinion, and with whom HAWKINS, FISHER,
PAEZ, CLIFTON and BEA, Circuit Judges, join as to Parts
I and II:
Yahoo!, an American Internet service provider, brought
suit in federal district court in diversity against La Ligue Con-
tre 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 unrec-
ognizable 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 unneces-
sary, 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 hold-
ings. A majority of the en banc panel holds, as explained in
Part II of this opinion, that the district court properly exer-
cised 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 Laborato-
ries v. Gardner, 387 U.S. 136, 149 (1967). We do not reach
the abstention question.
I. Background
Yahoo! is a Delaware corporation with its principal place
of business in California. Through its United States-based
website yahoo.com, Yahoo! makes available a variety of
Internet services, including a search engine, e-mail, web page
hosting, instant messaging, auctions, and chat rooms. While
some of these services rely on content created by Yahoo!, oth-
ers are forums and platforms for user-generated content.
412 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Yahoo! users can, for example, design their own web pages,
share opinions on social and political message boards, play
fantasy baseball games, and post items to be auctioned for
sale. Yahoo! does not monitor such user-created content
before it is posted on the web through Yahoo! sites.
Yahoo!’s United States website is written in English. It tar-
gets users in the United States and relies on servers located in
California. Yahoo!’s foreign subsidiaries, such as Yahoo!
France, Yahoo! U.K., and Yahoo! India, have comparable
websites for their respective countries. The Internet addresses
of these foreign-based websites contain their two-letter coun-
try designations, such as fr.yahoo.com, uk.yahoo.com, and
in.yahoo.com. Yahoo!’s foreign subsidiaries’ sites provide
content in the local language, target local citizens, and adopt
policies that comply with local law and customs. In actual
practice, however, national boundaries are highly permeable.
For example, any user in the United States can type
www.fr.yahoo.com into his or her web browser and thereby
reach Yahoo! France’s website. Conversely, any user in
France can type www.yahoo.com into his or her browser, or
click the link to Yahoo.com on the Yahoo! France home page,
and thereby reach yahoo.com.
Sometime in early April 2000, LICRA’s chairman sent by
mail and fax a cease and desist letter, dated April 5, 2000, to
Yahoo!’s headquarters in Santa Clara, California. The letter,
written in English, stated in part:
[W]e are particularly choked [sic] to see that your
Company keeps on presenting every day hundreds of
nazi symbols or objects for sale on the Web.
This practice is illegal according to French legisla-
tion and it is incumbent upon you to stop it, at least
on the French Territory.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 413
Unless you cease presenting nazi objects for sale
within 8 days, we shall size [sic] the competent juris-
diction to force your company to abide by the law.
On April 10, five (rather than eight) days after the date on the
letter, LICRA filed suit against Yahoo! and Yahoo! France in
the Tribunal de Grande Instance de Paris. On April 20, UEJF
joined LICRA’s suit in the French court. LICRA and UEJF
used United States Marshals to serve process on Yahoo! in
California.
After a hearing on May 15, 2000, the French court issued
an “interim” order on May 22 requiring Yahoo! to “take all
necessary measures to dissuade and render impossible any
access [from French territory] via Yahoo.com to the Nazi arti-
fact auction service and to any other site or service that may
be construed as constituting an apology for Nazism or a con-
testing of Nazi crimes” (emphasis added).1 Among other
things, the French court required Yahoo! to take particular
specified actions “[b]y way of interim precautionary mea-
sures.” Yahoo! was required “to cease all hosting and avail-
ability in the territory of [France] from the ‘Yahoo.com’ site
. . . of messages, images and text relating to Nazi objects, rel-
ics, insignia, emblems and flags, or which evoke Nazism,”
and of “Web pages displaying text, extracts, or quotes from
‘Mein Kampf’ and the ‘[Protocols of the Elders of Zion]’ ” at
two specified Internet addresses. Yahoo! was further required
to remove from “all browser directories accessible in the terri-
tory of the French Republic” the “index heading entitled
‘negationists’ ” and any link “bringing together, equating, or
1
The French court’s orders are written in French. We quote from the
English translation provided in the record. Counsel for LICRA and UEJF
contended at oral argument that the words “all necessary measures”
(underlined and italicized above) are a mistranslation of the French text.
The original French for the entire phrase (italicized above) is “prendre
toutes les mesures de nature à dissuader et à rendre impossible.” Counsel
contended that the words “toutes les mesures de nature à” are more accu-
rately translated as “all reasonable (or available) measures.”
414 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
presenting directly or indirectly as equivalent” sites about the
Holocaust and sites by Holocaust deniers.
The May 22 interim order required Yahoo! France (as dis-
tinct from Yahoo!) to remove the “negationists” index head-
ing and the link to negationist sites, described above, from
fr.yahoo.com. The order further required Yahoo! France to
post a warning on fr.yahoo.com stating to any user of that
website that, in the event the user accessed prohibited material
through a search on Yahoo.com, he or she must “desist from
viewing the site concerned[,] subject to imposition of the pen-
alties provided in French legislation or the bringing of legal
action against him.”
The order stated that both Yahoo! and Yahoo! France were
subject to a penalty of 100,000 Euros per day of delay or per
confirmed violation, and stated that the “possibility of liquida-
tion of the penalties thus pronounced” was “reserve[d].” The
order also awarded 1 Franc in “provisional damages,” payable
by Yahoo! and Yahoo! France to UEJF, and awarded an addi-
tional 1 Franc against Yahoo! and Yahoo! France for
expenses under Article 700 of the New Code of Civil Proce-
dure. The French court also awarded 10,000 Francs against
Yahoo! for expenses under Article 700, payable to LICRA,
and 10,000 Francs each against Yahoo! and Yahoo! France
under Article 700 (a total of 20,000 Francs), payable to UEJF.
Yahoo! objected to the May 22 order. It contended, among
other things, that “there was no technical solution which
would enable it to comply fully with the terms of the court
order.” (Emphasis added.) In response, the French court
obtained a written report from three experts. The report con-
cluded that under current conditions approximately 70% of
Yahoo! users operating from computer sites in France could
be identified. The report specifically noted that Yahoo!
already used such identification of French users to display
advertising banners in French. The 70% number applied irre-
spective of whether a Yahoo! user sought access to an auction
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 415
site, or to a site denying the existence of the Holocaust or con-
stituting an apology for Nazism.
With respect to auction sites, the report concluded that it
would be possible to identify additional users. Two out of the
three experts concluded that approximately an additional 20%
of users seeking access to auction sites offering Nazi-related
items for sale could be identified through an honor system in
which the user would be asked to state his or her nationality.
In all, the two experts estimated that almost 90% of such auc-
tion site users in France could be identified: “The combina-
tion of the two procedures, namely geographical identification
of the IP address and declaration of nationality, would be
likely to achieve a filtering success rate approaching 90%.”
The third expert expressed doubts about the number of addi-
tional users of the auction site who would respond truthfully
under the honor system. He did not, however, specify an alter-
native number of users — say, 15% or 10% — who would
respond truthfully.
With respect to sites denying the existence of the Holocaust
or constituting an apology for Nazism, the report was not able
to “propose suitable and effective technical solutions”
because no “grievance” against those sites had been made
with “sufficient precision.” In consequence, as to these non-
auction sites, the report did not estimate how many Yahoo!
users above the base 70% number could be identified by an
honor system.
In a second interim order, issued on November 20, 2000,
the French court reaffirmed its May 22 order and directed
Yahoo! to comply within three months, “subject to a penalty
of 100,000 Francs per day of delay effective from the first day
following expiry of the 3 month period.” (The May 22 order
had specified a penalty of 100,000 Euros rather than 100,000
Francs.) The court “reserve[d] the possible liquidation of the
penalty” against Yahoo!. The French court’s November 20
order required Yahoo! France (as distinct from Yahoo!) to
416 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
display “a warning to surfers even before they have made use
of the link to Yahoo.com, to be brought into effect within 2
months following notification of the present order.” However,
the French court found “that YAHOO FRANCE has complied
in large measure with the spirit and letter of the order of 22nd
May 2000[.]” (Emphasis added.)
The November 20 order required Yahoo! to pay 10,000
Francs for a report, to be prepared in the future by one of the
experts previously appointed by the court, to determine
whether Yahoo! was in compliance with the court’s orders. It
also awarded a total of 20,000 Francs against Yahoo! for
expenses under Article 700, payable to LICRA and UEJF, and
an unspecified amount of costs against Yahoo!, payable to
LICRA and UEJF. The court specifically stated that it was not
awarding any expenses or costs against Yahoo! France (which
it had found to have complied “in large measure” with its
order). LICRA and UEJF used United States Marshals to
serve both orders on Yahoo! in Santa Clara, California.
Yahoo! did not pursue appeals of either interim order.
The French court has not imposed any penalty on Yahoo!
for violations of the May 22 or November 20 orders. Nor has
either LICRA or UEJF returned to the French court to seek
the imposition of a penalty. Both organizations affirmatively
represent to us that they have no intention of doing so if
Yahoo! maintains its current level of compliance. Yet neither
organization is willing to ask the French court to vacate its
orders. As LICRA and UEJF’s counsel made clear at oral
argument, “My clients will not give up the right to go to
France and enforce the French judgment against Yahoo! in
France if they revert to their old ways and violate French
law.”
The record reveals that the French “public prosecutor” par-
ticipated in the proceedings against Yahoo! and Yahoo!
France in the French court, but it does not reveal whether he
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 417
has the authority to seek a penalty against Yahoo! under the
interim orders, either on his own or pursuant to a request by
LICRA and/or UEJF. The public prosecutor was not made a
party to the suit in the district court, and has made no appear-
ance in the district court or on appeal to this court. If LICRA,
UEJF, or the public prosecutor were to seek the imposition of
a penalty by the French court pursuant to the interim orders,
that court would have to determine the extent of Yahoo!’s
violation, if any, of the orders, as well as the amount of any
penalty, before an award of a penalty could be entered.
On December 21, 2000, Yahoo! filed suit against LICRA
and UEJF in federal district court, seeking a declaratory judg-
ment that the interim orders of the French court are not recog-
nizable or enforceable in the United States. Subject matter
jurisdiction is based solely on diversity of citizenship. 28
U.S.C. § 1332(a)(2). In a thoughtful opinion, the district court
concluded that it had personal jurisdiction over LICRA and
UEJF. Yahoo! Inc. v. La Ligue Contre le Racisme et
l’Antisemitisme, 145 F. Supp. 2d 1168, 1180 (N.D. Cal.
2001). Several months later, in another thoughtful opinion,
the district court concluded that the suit was ripe, that absten-
tion was not warranted, and that “the First Amendment pre-
cludes enforcement within the United States.” Yahoo!, Inc. v.
La Ligue Contre le Racisme et l’Antisemitisme, 169 F. Supp.
2d 1181, 1194 (N.D. Cal. 2001).
In early 2001, after both interim orders had been entered by
the French court, and after Yahoo! had filed suit in federal
district court, Yahoo! adopted a new policy prohibiting use of
auctions or classified advertisements on Yahoo.com “to offer
or trade in items that are associated with or could be used to
promote or glorify groups that are known principally for hate-
ful and violent positions directed at others based on race or
similar factors.” Yahoo! has represented, in this court and
elsewhere, that its new policy has not been adopted in
response to the French court’s orders, but rather for indepen-
dent reasons. Yahoo’s new policy eliminates much of the con-
418 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
duct prohibited by the French orders. However, after
conducting its own Internet research on yahoo.com, the dis-
trict court found that even after this policy change, Yahoo!
“appear[s]” not to have fully complied with the orders with
respect to its auction site. 169 F. Supp. 2d at 1185. For exam-
ple, the district court found that Yahoo! continued to allow
the sale of items such as a copy of Mein Kampf and stamps
and coins from the Nazi period on which the swastika is
depicted. Id. The district court also found that access was
available through yahoo.com to various sites in response to
searches such as “Holocaust/5 did not happen.” Id.
LICRA and UEJF timely appealed the district court’s rul-
ings on personal jurisdiction, ripeness, and abstention.
II. Personal Jurisdiction
The only bases for personal jurisdiction over LICRA and
UEJF in the district court are the actions they have taken in
connection with their French suit against Yahoo!. Those
actions are sending a cease and desist letter to Yahoo! at its
headquarters in Santa Clara, California; serving process on
Yahoo! in Santa Clara to commence the French suit; obtain-
ing two interim orders from the French court; and serving the
two orders on Yahoo! in Santa Clara.
Where, as here, there is no applicable federal statute gov-
erning personal jurisdiction, the district court applies the law
of the state in which the district court sits. See Fed. R. Civ.
P. 4(k)(1)(A); Panavision Int’l, L.P. v. Toeppen, 141 F.3d
1316, 1320 (9th Cir. 1998). Because California’s long-arm
jurisdictional statute is coextensive with federal due process
requirements, the jurisdictional analyses under state law and
federal due process are the same. Id. at 1320 (citing Cal. Civ.
Proc. Code § 410.10).
[1] In International Shoe Co. v. Washington, 326 U.S. 310
(1945), the Supreme Court held that a court may exercise per-
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 419
sonal jurisdiction over a defendant consistent with due pro-
cess only if he or she has “certain minimum contacts” with
the relevant forum “such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial jus-
tice.’ ” Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)). Unless a defendant’s contacts with a forum are
so substantial, continuous, and systematic that the defendant
can be deemed to be “present” in that forum for all purposes,
a forum may exercise only “specific” jurisdiction — that is,
jurisdiction based on the relationship between the defendant’s
forum contacts and the plaintiff’s claim. The parties agree that
only specific jurisdiction is at issue in this case.
[2] In this circuit, we analyze specific jurisdiction accord-
ing to a three-prong test:
(1) The non-resident defendant must purposefully
direct his activities or consummate some transaction
with the forum or resident thereof; or perform some
act by which he purposefully avails himself of the
privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws;
(2) the claim must be one which arises out of or
relates to the defendant’s forum-related activities;
and
(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be rea-
sonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802
(9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421
(9th Cir. 1987)). The first prong is determinative in this case.
We have sometimes referred to it, in shorthand fashion, as the
“purposeful availment” prong. Schwarzenegger, 374 F.3d at
802. Despite its label, this prong includes both purposeful
420 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
availment and purposeful direction. It may be satisfied by pur-
poseful availment of the privilege of doing business in the
forum; by purposeful direction of activities at the forum; or by
some combination thereof.
We have typically treated “purposeful availment” some-
what differently in tort and contract cases. In tort cases, we
typically inquire whether a defendant “purposefully direct[s]
his activities” at the forum state, applying an “effects” test
that focuses on the forum in which the defendant’s actions
were felt, whether or not the actions themselves occurred
within the forum. See Schwarzenegger, 374 F.3d at 803 (cit-
ing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). By con-
trast, in contract cases, we typically inquire whether a
defendant “purposefully avails itself of the privilege of con-
ducting activities” or “consummate[s] [a] transaction” in the
forum, focusing on activities such as delivering goods or exe-
cuting a contract. See Schwarzenegger, 374 F.3d at 802. How-
ever, this case is neither a tort nor a contract case. Rather, it
is a case in which Yahoo! argues, based on the First Amend-
ment, that the French court’s interim orders are unenforceable
by an American court.
[3] LICRA and UEJF contend that we must base our analy-
sis on the so-called “effects” test of Calder v. Jones, 465 U.S.
783 (1984), which is normally employed in purposeful direc-
tion cases. See, e.g., CE Distrib., LLC v. New Sensor Corp.,
380 F.3d 1107, 1111 (9th Cir. 2004); Schwarzenegger, 374
F.3d at 803; Dole Food Co. v. Watts, 303 F.3d 1104, 1111
(9th Cir. 2002). In Calder, a California-based entertainer sued
the National Enquirer and various individual defendants for
an allegedly defamatory article published in the Enquirer. The
article had been written and edited in Florida, and the defen-
dants had few contacts with California. The Court nonetheless
upheld the exercise of personal jurisdiction in California
because the defendants knew that the article would have an
effect in that state. In the words of the Court, the defendants
had not engaged in “mere untargeted negligence”; rather, their
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 421
“intentional, and allegedly tortious, actions were expressly
aimed at California.” 465 U.S. at 789.
[4] In this circuit, we construe Calder to impose three
requirements: “the defendant allegedly [must] have (1) com-
mitted an intentional act, (2) expressly aimed at the forum
state, (3) causing harm that the defendant knows is likely to
be suffered in the forum state.” Schwarzenegger, 374 F.3d at
803 (quoting Dole Food, 303 F.3d at 1111). In some of our
cases, we have employed a slightly different formulation of
the third requirement, specifying that the act must have
“caused harm, the brunt of which is suffered and which the
defendant knows is likely to be suffered in the forum state.”
Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1087 (9th Cir. 2000) (emphasis added). The “brunt” of
the harm formulation originated in the principal opinion in
Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482 (9th Cir.
1993). That opinion required that the “brunt” of the harm be
suffered in the forum state; based on that requirement, it con-
cluded that there was no purposeful availment by the defen-
dant. Id. at 1486. A dissenting judge would have found
purposeful availment. Relying on the Supreme Court’s opin-
ion in Keeton v. Hustler Magazine, 465 U.S. 770 (1984), he
specifically disavowed the “brunt” of the harm formulation.
Core-Vent, 11 F.3d at 1492 (Wallace, C.J., dissenting) (“[T]he
Supreme Court has already rejected the proposition that the
brunt of the harm must be suffered in the forum.”). Without
discussing the disputed “brunt” of the harm formulation, a
concurring judge agreed with the dissenter that purposeful
availment could be found. Id. at 1491 (Fernandez, J., concur-
ring) (“I agree with Chief Judge Wallace that purposeful
availment can be found in this case.”). Later opinions picked
up the “brunt” of the harm formulation of the principal opin-
ion in Core-Vent without noting that at least one, and possibly
two, of the judges on the panel disagreed with it. See, e.g.,
Bancroft & Masters, 223 F.3d at 1087; Panavision, 141 F.3d
at 1321; Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126,
128 (9th Cir. 1995).
422 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
[5] We take this opportunity to clarify our law and to state
that the “brunt” of the harm need not be suffered in the forum
state. If a jurisdictionally sufficient amount of harm is suf-
fered in the forum state, it does not matter that even more
harm might have been suffered in another state. In so stating
we are following Keeton, decided the same day as Calder, in
which the Court sustained the exercise of personal jurisdiction
in New Hampshire even though “[i]t is undoubtedly true that
the bulk of the harm done to petitioner occurred outside New
Hampshire.” 465 U.S. at 780.
LICRA and UEJF contend that the Calder effects test is not
satisfied because, in their view, Calder requires that the
actions expressly aimed at and causing harm in California be
tortious or otherwise wrongful. LICRA and UEJF contend
that they have done no more than vindicate their rights under
French law, and that their behavior has therefore not been
wrongful. They conclude that their behavior therefore does
not confer personal jurisdiction in California. We agree with
LICRA and UEJF that the Calder effects test is appropriately
applied to the interim orders of the French court. But we dis-
agree with them about the meaning and application of Calder.
In any personal jurisdiction case we must evaluate all of a
defendant’s contacts with the forum state, whether or not
those contacts involve wrongful activity by the defendant.
See, e.g., Quill Corp. v. North Dakota, 504 U.S. 298, 308
(1992) (upholding jurisdiction to enforce state tax on out-of-
state corporation that sent catalogs and goods to forum); Bur-
ger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985)
(upholding personal jurisdiction based on a course of dealing
related to a franchise agreement). Many cases in which the
Calder effects test is used will indeed involve wrongful con-
duct by the defendant. See, e.g., Calder, 465 U. S. at 790,
(allegedly defamatory publication purposefully directed at
California); Bancroft & Masters, 223 F.3d at 1088 (wrongful
interference with California corporation’s use of domain
name); Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1192
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 423
(9th Cir. 1988) (unauthorized use of celebrity’s name and
likeness to promote Swiss clinic); Lake, 817 F.2d at 1422-23
(provision of legal services to secure allegedly improper cus-
tody order). But we do not read Calder necessarily to require
in purposeful direction cases that all (or even any) jurisdic-
tionally relevant effects have been caused by wrongful acts.
We do not see how we could do so, for if an allegedly wrong-
ful act were the basis for jurisdiction, a holding on the merits
that the act was not wrongful would deprive the court of juris-
diction.
We therefore analyze all of LICRA and UEJF’s contacts
with California relating to its dispute with Yahoo!, irrespec-
tive of whether they involve wrongful actions by LICRA and
UEJF. There are three such contacts. The first two contacts,
taken by themselves, do not provide a sufficient basis for
jurisdiction. However, the third contact, considered in con-
junction with the first two, does provide such a basis.
[6] The first contact is the cease and desist letter that
LICRA sent to Yahoo!, demanding that Yahoo! alter its
behavior in California to conform to what LICRA contended
were the commands of French law. A cease and desist letter
is not in and of itself sufficient to establish personal jurisdic-
tion over the sender of the letter. Red Wing Shoe Co. v.
Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir.
1998) (“A patentee should not subject itself to personal juris-
diction in a forum solely by informing a party who happens
to be located there of suspected infringement.”). There are
strong policy reasons to encourage cease and desist letters.
They are normally used to warn an alleged rights infringer
that its conduct, if continued, will be challenged in a legal
proceeding, and to facilitate resolution of a dispute without
resort to litigation. If the price of sending a cease and desist
letter is that the sender thereby subjects itself to jurisdiction
in the forum of the alleged rights infringer, the rights holder
will be strongly encouraged to file suit in its home forum
without attempting first to resolve the dispute informally by
424 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
means of a letter. See Red Wing Shoe, 148 F.3d at 1360-1361;
Cascade Corp. v. Hiab-Foco AB, 619 F.2d 36, 38 (9th Cir.
1980); Douglas Furniture Co. of Cal., Inc. v. Wood Dimen-
sions, Inc., 963 F. Supp. 899, 903 (C.D. Cal. 1997) (“If any
attempt by an intellectual property holder to put an alleged
wrongdoer on notice forced the property holder to submit to
the jurisdiction of the alleged wrongdoer’s forum, an intellec-
tual property owner would be forced to file an action in his
own jurisdiction in order to avoid the threat of being haled
before a court in another, possibly distant state.”).
This is not to say that a cease and desist letter can never be
the basis for personal jurisdiction. For example, in Bancroft
& Masters, we upheld jurisdiction based on two letters sent
by Augusta National Inc. (“ANI”), based in Georgia, contend-
ing that Bancroft & Masters, Inc. (“B & M”) was improperly
using its domain name. One letter was sent to Network Solu-
tions, Inc. (“NSI”) in Virginia. NSI was then the sole registrar
of domain names. The other, a cease and desist letter, was
sent to B & M at its corporate offices in California. B & M
sued ANI in federal district court in California seeking a
declaratory judgment that it had the right to the disputed
domain name. On the assumption that B & M’s factual allega-
tion was true, we held that the letters were intended to trigger
NSI’s dispute resolution procedures, to interfere wrongfully
with B & M’s use of its domain name, and to misappropriate
that name for ANI’s own use. 223 F.3d at 1087. We therefore
upheld jurisdiction under Calder based on the letters.
[7] LICRA’s letter was not used to facilitate settlement.
Although it stated that LICRA would file suit in eight days if
Yahoo! had not complied with LICRA’s demands, LICRA
filed suit five days after the date of the letter. Nonetheless,
LICRA’s letter to Yahoo! was more like a normal cease and
desist letter than the letters at issue in Bancroft & Masters, for
it was not abusive, tortious or otherwise wrongful. Rather, it
simply alerted Yahoo! to its view of French law and stated its
intent to file suit in France to enforce that law against Yahoo!.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 425
Under these circumstances, we do not believe that LICRA’s
letter is a contact that would, if considered alone, justify the
exercise of personal jurisdiction.
[8] LICRA and UEJF’s second contact (or, more precisely,
set of contacts) with California was service of process on
Yahoo! in California. LICRA first effected service of process
to commence the French suit. LICRA and UEJF later effected
service of the French court’s two interim orders. We do not
regard the service of documents in connection with a suit
brought in a foreign court as contacts that by themselves jus-
tify the exercise of personal jurisdiction over a foreign litigant
in a United States court. If we were to hold that such service
were a sufficient basis for jurisdiction, we would be providing
a forum-choice tool by which any United States resident sued
in a foreign country and served in the United States could
bring suit in the United States, regardless of any other basis
for jurisdiction. We are unaware of any case so holding, and
Yahoo! has cited none.
[9] Third, and most important, LICRA and UEJF have
obtained two interim orders from the French court directing
Yahoo! to take actions in California, on threat of a substantial
penalty. We agree with LICRA and UEJF that the French
court’s orders are appropriately analyzed under the Calder
effects test.
[10] The first two requirements are that LICRA and UEJF
“have ‘(1) committed an intentional act, [which was] (2)
expressly aimed at the forum state[.]’ ” Schwarzenegger, 374
F.3d at 805 (quoting Dole Food, 303 F.3d at 1111). It is obvi-
ous that both requirements are satisfied. LICRA intentionally
filed suit in the French court. Indeed, it had previously sig-
naled its intent to file suit in its April 5 letter to Yahoo!. UEJF
intentionally joined LICRA’s suit ten days later. Further,
LICRA and UEJF’s suit was expressly aimed at California.
The suit sought, and the French court granted, orders directing
Yahoo! to perform significant acts in California. It is of
426 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
course true that the effect desired by the French court would
be felt in France, but that does not change the fact that signifi-
cant acts were to be performed in California. The servers that
support yahoo.com are located in California, and compliance
with the French court’s orders necessarily would require
Yahoo! to make some changes to those servers. Further, to the
extent that any financial penalty might be imposed pursuant
to the French court’s orders, the impact of that penalty would
be felt by Yahoo! at its corporate headquarters in California.
See Dole Food, 303 F.3d at 1113-14.
[11] The third requirement is that LICRA and UEJF’s acts
“ ‘caus[e] harm that the defendant knows is likely to be suf-
fered in the forum state.’ ” Id. This requirement is somewhat
problematic, for Yahoo! has not shown or even alleged any
specific way in which it has altered its behavior in response
to the French court’s interim orders. Yahoo! changed its pol-
icy with respect to Yahoo.com after the French court’s orders
were entered, but Yahoo! has consistently maintained that the
change was unrelated to the orders. Therefore, even if we
were persuaded that Yahoo!’s change of policy harmed it in
some way, Yahoo! itself has represented that such harm was
not caused by any action of LICRA or UEJF. Nor is it clear
that, absent the interim orders, Yahoo! would change its pol-
icy in the future. Indeed, Yahoo! represented to us during oral
argument that there is nothing that it would like to do, but is
now refraining from doing, because of the interim orders.
Yahoo!, however, points to the possibility that a substantial
penalty will be assessed under the French court’s November
20 interim order. It points in particular to the provision in that
order specifying that the potential amount of the penalty
increases by 100,000 Francs for every day that Yahoo! is in
violation of the court’s orders. Yahoo! represents to us that
even now, after its change of policy, it is acting in plain viola-
tion of the orders. It contends that a declaratory judgment
determining the enforceability by an American court of the
French court’s orders will allow it to determine an appropriate
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 427
course of conduct with respect to the activities in which it
continues to engage. The district court found that, notwith-
standing its new policy,
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.
While Yahoo! has removed the Protocol of the
Elders of Zion from its auction site, it has not pre-
vented access to numerous other sites which reason-
ably “may be construed as constituting an apology
for Nazism or a contesting of Nazi crimes.”
169 F. Supp. 2d at 1185 (emphasis added).
In both this court and the district court, LICRA and UEJF
have represented that, in their view, Yahoo! is in what they
call “substantial compliance” with the French court’s orders.
They have further represented that they will not seek enforce-
ment of the penalty provision if Yahoo! continues its present
level of compliance with the orders. However, LICRA and
UEJF have stopped short of making a binding contractual
commitment that they will not enforce the orders, and they
have taken no action to have the orders withdrawn. As their
counsel made clear at oral argument, LICRA and UEJF want
to be able to return to the French court for enforcement if
Yahoo! returns to its “old ways.” For its part, while Yahoo!
does not independently wish to take steps to comply more
fully with the French court’s orders, it states that it fears that
it may be subject to a substantial (and increasing) fine if it
does not. Yahoo! maintains that in these circumstances it has
a legally cognizable interest in knowing whether the French
court’s orders are enforceable in this country.
In a specific jurisdiction inquiry, we consider the extent of
the defendant’s contacts with the forum and the degree to
which the plaintiff’s suit is related to those contacts. A strong
showing on one axis will permit a lesser showing on the other.
428 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
A single forum state contact can support jurisdiction if “the
cause of action . . . arise[s] out of that particular purposeful
contact of the defendant with the forum state.” See Lake, 817
F.2d at 1421. The case before us is the classic polar case for
specific jurisdiction described in International Shoe, in which
there are very few contacts but in which those few contacts
are directly related to the suit. See 326 U.S. at 318 (“[S]ome
single or occasional acts of the corporate agent in a state . . .
because of their nature and quality and the circumstances of
their commission, may be deemed sufficient to render the cor-
poration liable to suit.”). All of the contacts with the forum
state in this case are either the interim orders themselves or
contacts directly related to those orders.
LICRA and UEJF have not sought enforcement of the
French court’s orders in this country, and they have stated that
they will not seek enforcement or penalties so long as Yahoo!
continues its current course of conduct. However, LICRA and
UEJF have not sought to vacate the French court’s orders, and
it is at least possible that they might later seek enforcement
based on a continuation of Yahoo!’s current conduct. Or more
likely, they might seek enforcement if Yahoo! changes it con-
duct in the future. But even if LICRA and UEJF seek enforce-
ment at some time in the future, and even if the French court
finds a violation that warrants the imposition of a penalty,
enforcement of that penalty is extremely unlikely in the
United States. Enforcement is unlikely not because of the
First Amendment, but rather because of the general principle
of comity under which American courts do not enforce mone-
tary fines or penalties awarded by foreign courts.
Finally, Yahoo! contends that it has a legally protected
interest, based on the First Amendment, in continuing its cur-
rent policy with respect to Nazi memorabilia and Holocaust-
related anti-semitic materials. Until that contention is
endorsed by the judgment of an American court, it is only a
contention. But even if the French court’s orders are not
enforced against Yahoo!, the very existence of those orders
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 429
may be thought to cast a shadow on the legality of Yahoo!’s
current policy.
[12] It is a close question whether LICRA and UEJF are
subject to personal jurisdiction in California in this suit. But
considering the direct relationship between LICRA and
UEJF’s contacts with the forum and the substance of the suit
brought by Yahoo!, as well as the impact and potential impact
of the French court’s orders on Yahoo!, we hold that there is
personal jurisdiction.
III. Ripeness
Because we conclude that the exercise of personal jurisdic-
tion over LICRA and UEJF is proper, we turn to the question
of ripeness. Ripeness doctrine is “ ‘drawn both from Article
III limitations on judicial power and from prudential reasons
for refusing to exercise jurisdiction.’ ” Nat’l Park Hospitality
Ass’n v. DOI, 538 U.S. 803, 808 (2003) (quoting Reno v.
Catholic Social Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
Even where jurisdiction is present in the Article III sense,
courts are obliged to dismiss a case when considerations of
prudential ripeness are not satisfied. Socialist Labor Party v.
Gilligan, 406 U.S. 583, 588 (1972) (“Problems of prematurity
and abstractness may well present ‘insuperable obstacles’ to
the exercise of the Court’s jurisdiction, even though that juris-
diction is technically present.”) (citing Rescue Army v. Munic-
ipal Court, 331 U.S. 549, 574 (1947)).
The existence of Article III subject matter jurisdiction is,
like personal jurisdiction, a close question, but we agree with
the district court that the effect of the French court’s orders
on Yahoo! is sufficient to create a case or controversy within
the meaning of Article III. See 169 F. Supp. 2d at 1187-91.
However, we disagree with the district court’s conclusion that
there is prudential ripeness. In its current form, this case pre-
sents the sort of “[p]roblems of prematurity and abstractness”
that counsel against reaching the First Amendment question
430 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
that Yahoo! insists is presented by this case. See Socialist
Labor Party, 406 U.S. at 588.
In determining whether a case satisfies prudential require-
ments for ripeness, we consider two factors: “the fitness of the
issues for judicial decision,” and “the hardship to the parties
of withholding court consideration.” Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967); Pac. Gas & Elec. Co. v. State
Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,
201 (1983) (quoting Abbott Labs.). We address these two fac-
tors in turn.
A. Fitness of the Issue for Judicial Decision
1. The Substantive Legal Question at Issue
[13] Whether a dispute is sufficiently ripe to be fit for judi-
cial 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 lit-
tle factual development may be necessary. As we wrote in
San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121,
1132 (9th Cir. 1996), “[P]ure legal questions that require little
factual development are more likely to be ripe.” By contrast,
if the legal question depends on numerous factors for its reso-
lution, extensive factual development may be necessary.
A noted example is Adler v. Bd. of Educ., 342 U.S. 485
(1952), in which Justice Frankfurter disagreed with the other
justices about the precise legal question presented, and, as a
consequence, disagreed about ripeness. Because the legal
question, as Justice Frankfurter understood it, required fine-
grained and subtle judgments based on extensive factual
development, he concluded that the suit was not ripe. Id. at
506-07 (Frankfurter, J., dissenting). In the view of the other
justices, however, the legal question was different. In their
view, this different legal question was relatively simple,
requiring little factual development. For them (and for this
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 431
different legal question), the suit was ripe. Id. at 492-93 (maj.
op.); 508-09 (Douglas, J., dissenting). See Fritz W. Scharpf,
Judicial Review and the Political Question: A Functional
Analysis, 75 Yale L.J. 517, 532 (1966). See also United Pub-
lic Workers v. Mitchell, 330 U.S. 75, 90-91 (1947) (dismiss-
ing suit as unripe); id. at 109 (Black, J., dissenting); id. at
116-17 (Douglas, J., dissenting).
[14] It is thus important to a ripeness analysis that we spec-
ify 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.
[15] There is currently no federal statute governing recog-
nition of foreign judgments in the federal courts. See Ameri-
can Law Institute, Recognition and Enforcement of Foreign
Judgments: Analysis and Proposed Federal Statute (April 11,
2005) (proposed final draft). 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 enforce-
ment is sought. Bank of Montreal v. Kough, 612 F.2d 467,
469-70 (9th Cir. 1980); see also Southwest Livestock &
Trucking Co. v. Ramon, 169 F.3d 317, 320 (5th Cir. 1999);
Choi v. Kim, 50 F.3d 244, 248 (3d Cir. 1995); S.A. Andes v.
Versant Corp., 878 F.2d 147, 150 (4th Cir. 1989); Ingersoll
Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir.
1987); Branca v. Security Benefit Life Ins. Co., 773 F.2d
432 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
1158, 1161 (11th Cir. 1985). This is a diversity suit, brought
by Yahoo! in federal district court in California.
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 typi-
cal 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.
[16] 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 poten-
tially 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, irrespec-
tive of whether it might be ripe under the law of some other
state. To do otherwise would be to allow the tail to wag the
dog. Second, in any event, the law of virtually all other states
appears to be similar, or even identical, to California law. We
may thus safely proceed with our ripeness analysis based on
the California law of enforceability.
California, along with many other states, has adopted the
Uniform Foreign Money-Judgments Recognition Act
(“Uniform Act” or “Act”). Cal. Civ. Proc. Code §§ 1713-
1713.8. The relevant standard for enforceability under the Act
is whether “the cause of action or defense on which the judg-
ment is based is repugnant to the public policy of this state.”
Id. § 1713.4(b)(3) (emphasis added). However, the Act is not
directly applicable to this case, for it does not authorize
enforcement of injunctions. See id. § 1713.1(2) (“ ‘Foreign
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 433
judgment’ means any judgment of a foreign state granting or
denying recovery of a sum of money, other than . . . a fine or
other penalty[.]”) But neither does the Uniform Act prevent
enforcement of injunctions, for its savings clause specifies
that the Act does not foreclose enforcement of foreign judg-
ments “in situations not covered by [the Act].” Id. § 1713.7.
Because the Uniform Act does not cover injunctions, we
look to general principles of comity followed by the Califor-
nia courts. We may appropriately consult the Restatement
(Third) of the Foreign Relations Law of the United States
(“Third Restatement” or “Restatement”), given that California
courts frequently cite the Restatement, as well as earlier
Restatements, as sources of law. See, e.g., Renoir v. Redstar
Corp., 123 Cal. App. 4th 1145, 1150 (2004) (Third Restate-
ment); American Home Assurance Co. v. Société Commer-
ciale Toutélectric, 104 Cal. App. 4th 406, 424 (2003) (same);
Smith v. Hopland Band of Pomo Indians, 95 Cal. App. 4th 1,
10 (2002) (same); Pecaflor Construction, Inc. v. Landes, 198
Cal. App. 3d 342, 349 (1988) (Second Restatement). The gen-
eral principle of enforceability under the Third Restatement is
the same as under California’s Uniform Act. That is, an
American court will not enforce a judgment if “the cause of
action on which the judgment was based, or the judgment
itself, is repugnant to the public policy of the United States or
of the State where recognition is sought[.]” Restatement
§ 482(2)(d) (emphasis added); see also Restatement (Second)
of the Conflict of Laws § 117 cmt. c (1971) (“[E]nforcement
will usually be accorded [a] judgment [of a foreign court]
except in situations where the original claim is repugnant to
fundamental notions of what is decent and just in the State
where enforcement is sought.”) (emphasis added).
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 repug-
nancy standard of the Restatement. We have found only one
case in which a California court has ruled on the enforceabil-
434 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
ity of an injunction granted in another country. In In re Steph-
anie M., 7 Cal. 4th 295 (1994), a Mexican court had entered
a guardianship decree purporting to authorize the named
guardian to take immediate custody of a child and to return
her to Mexico. The California Supreme Court recognized that
an injunction could be enforced by the California courts as a
matter of comity, but it declined to order enforcement in this
particular case because the Mexican decree conflicted with
California public policy. Id. at 314.
[17] California courts have also relied on public policy in
the analogous context of injunctions entered by other Ameri-
can courts. In Smith v. Superior Court, 41 Cal. App. 4th 1014
(1996), plaintiff Smith had been badly injured, and her hus-
band and two children killed, when their General Motors
(“GM”) vehicle burst into flames after a collision. Smith
brought a product liability suit in California against GM.
Elwell had been an engineer for GM for many years and had
extensive knowledge about the design of GM vehicles. An
earlier wrongful termination suit between Elwell and GM in
Michigan had been dismissed after the parties stipulated to a
permanent injunction forbidding Elwell from testifying in any
suit about GM vehicles. Smith sought to call Elwell as an
expert witness in her California suit. The California Court of
Appeal declined to enforce the Michigan injunction on the
ground that it “blatantly and irreconcilably conflicts with our
fundamental public policy against the suppression of evi-
dence.” Id. at 1025; see also Baker v. General Motors Corp.,
522 U.S. 222 (1998) (Missouri state court not required by 28
U.S.C. § 1738 to enforce the same Michigan injunction
against Elwell when such enforcement would violate Missouri
public policy).
The repugnancy standard is also generally followed in
states other than California. See, e.g., Hilkmann v. Hilkmann,
579 Pa. 563, 575 (2004) (observing that the Restatement’s
repugnancy standard has been incorporated into Pennsylvania
common law); Alberta Sec. Comm’n v. Ryckman, 200 Ariz.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 435
540, 549 (2001) (stating that foreign judgments are not
enforceable under Arizona common law if they are repugnant
to public policy); Panama Processes, S.A. v. Cities Serv. Co.,
796 P.2d 276, 283 (Okla. 1990) (declaring that a judgment
must not be enforced if repugnant to public policy); Greschler
v. Greschler, 51 N.Y.2d 368, 377 (1980) (“[T]he public pol-
icy exception to the doctrine of comity is usually invoked . . .
when the original claim is repugnant to fundamental notions
of what is decent and just in the State where enforcement is
sought.”) (internal quotation omitted). Further, federal courts
sometimes cite general principles of comity without reference
to particular state laws. See, e.g., Jaffe v. Accredited Sur. &
Cas. Co., 294 F.3d 584, 593 (4th Cir. 2002) (declaring that a
judgment will not be enforced if repugnant to public policy);
In re Schimmelpennick, 183 F.3d 347, 365 (5th Cir. 1999) (to
be enforceable, “foreign laws need not be identical to . . . the
laws of the United States; they merely must not be repugnant
to our laws and policies”); Turner Entertainment Co. v.
Degeto Film GmbH, 25 F.3d 1512, 1519 (11th Cir. 1994)
(“General comity concerns include . . . whether the foreign
judgment is prejudicial, in the sense of violating American
public policy because it is repugnant to fundamental princi-
ples of what is decent and just.”); see also Hilton v. Guyot,
159 U.S. 113 (1895) (discussing principles of comity govern-
ing enforcement of foreign judgments).
[18] Under the repugnancy standard, American courts
sometimes enforce judgments that conflict with American
public policy or are based on foreign law that differs substan-
tially from American state or federal law. See, e.g., In re
Hashim, 213 F.3d 1169, 1172 (9th Cir. 2000) (reversing bank-
ruptcy court’s refusal to enforce English court’s award of $10
million in costs against debtors whose assets had been frozen
by Saddam Hussein); Milhoux v. Linder, 902 P.2d 856, 861-
62 (Colo. Ct. App. 1995) (affirming recognition of Belgian
judgment as a matter of comity, even though it was based on
a 30-year Belgian statute of limitations). Inconsistency with
American law is not necessarily enough to prevent recogni-
436 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
tion and enforcement of a foreign judgment in the United
States. The foreign judgment must be, in addition, repugnant
to public policy.
2. Fitness of the Question for Judicial Decision
[19] 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 diffi-
culty 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 vio-
lating 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.
In its interim second order, entered on November 20, the
French court found that Yahoo! France had “complied in
large measure with the spirit and letter” of its May 22 order.
(Emphasis added.) Based on that level of compliance, the
French court was satisfied. It declined to enter any further
orders against Yahoo! France. It also declined to award any
expenses or costs against Yahoo! France, even though in that
same order it awarded expenses and costs against Yahoo!. We
thus know from this second order that compliance “in large
measure” by Yahoo! is very likely to be satisfactory to the
French court, just as compliance “in large measure” by
Yahoo! France was satisfactory.
LICRA and UEJF insist that Yahoo! has now, in their
words, “substantially complied” with the French court’s
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 437
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 seri-
ous 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.
To the extent that we are uncertain about whether Yahoo!
has complied “in large measure” with the French court’s
orders, the responsibility for that uncertainty can be laid at
Yahoo!’s door. In its November 20 interim order, the French
court ordered the appointment of one of the experts who had
previously reported on the technical feasibility of restricting
access by French users to Yahoo.com. Under the November
20 order, Yahoo! was required to pay the expert, who would
be charged “to undertake an assignment to prepare a consul-
tancy report on the conditions of fulfilment of the terms of the
aforementioned order.” Yahoo! has placed nothing in the
record to tell us whether Yahoo! has paid the expert; whether
the expert has prepared a report for the French court; and, if
a report has been prepared, what it says. There is also nothing
in the record to indicate what other steps, if any, Yahoo! has
taken to obtain an indication from the French court whether
it believes that Yahoo! is in compliance, “in large measure”
or otherwise, with the terms of its interim orders. All we
know for certain is that Yahoo! abandoned its appeal of the
May 22 interim order and declined to appeal the November 20
interim order, and that on December 21, a month and a day
after entry of the second interim order, it came home to file
suit in the Northern District of California.
438 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
[20] A third difficulty is related to the second. Because we
do not know whether Yahoo! has complied “in large mea-
sure” 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 dis-
tinguish 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.
With respect to users seeking access to forbidden auction
sites, two out of the three experts concluded that Yahoo!
could identify almost 90% of its users located in France. The
third expert did not dispute that 70% of such auction site users
could be identified, but expressed doubt about how many
additional such users could be identified. With respect to
users seeking access to sites of Holocaust deniers and Nazi
apologists, the experts declined to propose any solution by
which a greater number than 70% of users located in France
could be identified.
In its briefing to this court, Yahoo! contends that restricting
access by French Internet users in a manner sufficient to sat-
isfy 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 compli-
ance is necessary. Even if the measures Yahoo! has already
taken restrict access by American Internet users to anti-
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 439
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 possi-
ble 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 repug-
nant 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.
[21] 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
440 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
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 extraterrito-
rial 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)
(“[F]or 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 Constitu-
tion.”), 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 spe-
cifically by the First Amendment with respect to their activi-
ties abroad[.]”), with Bullfrog Films, Inc. v. Wick, 646 F.
Supp. 492, 502 (C.D. Cal. 1986) (“[T]here can be no question
that, in the absence of some overriding governmental interest
such as national security, the First Amendment protects com-
munications with foreign audiences to the same extent as
communications within our borders.”), aff’d, 847 F.2d 502
(9th Cir. 1988).
[22] 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 restric-
tion 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
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 441
Amendment argument. The legal analysis of these different
questions is different, and the answers are likely to be differ-
ent as well.
B. Hardship to the Parties
We next consider “the hardship to the parties of withhold-
ing court consideration.” Abbott Labs., 387 U.S. at 149. As
discussed above, we believe that Yahoo! has suffered suffi-
cient harm to justify (though not by a wide margin) the exer-
cise of personal jurisdiction over LICRA and UEJF. The
threshold requirement for hardship for purposes of personal
jurisdiction, however, is not necessarily the same as the
threshold for purposes of prudential ripeness. Particularly
where, as here, there are substantial uncertainties bearing on
the legal analysis to be performed, there is a high threshold
requirement for hardship.
Yahoo! contends that it will suffer real hardship if we do
not decide its suit at this time. Yahoo! makes essentially two
arguments. First, it argues that the potential monetary penalty
under the French court’s orders is mounting every day, and
that the enforcement of a penalty against it here could be
extremely onerous. Second, it argues that the French court’s
orders substantially limit speech that is protected by the First
Amendment. We take these arguments in turn.
1. Enforceability of the Monetary Penalty
Yahoo! contends that the threat of a monetary penalty
hangs like the sword of Damocles. However, it is exceedingly
unlikely that the sword will ever fall. We may say with some
confidence that, for reasons entirely independent of the First
Amendment, the French court’s orders are not likely to result
in the enforcement of a monetary penalty in the United States.
The French court’s orders threaten monetary sanctions against
Yahoo!, which that court explicitly labels “penalties.” In order
to obtain an award of a penalty from the French court, LICRA
442 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
and UEJF would have to return to the French court, to explain
to the French court why they believe Yahoo! has violated its
interim orders, and to persuade the French court that Yahoo!’s
violation merits the imposition of a penalty. In the nearly five
years since the entry of the French court’s second interim
order and Yahoo!’s change of policy, LICRA and UEJF have
taken none of these steps. Further, LICRA and UEJF have
represented that they have no intention of seeking a monetary
penalty by the French court so long as Yahoo! does not revert
to its “old ways.”
[23] More important, even if the French court were to
impose a monetary penalty against Yahoo!, it is exceedingly
unlikely that any court in California — or indeed elsewhere
in the United States — would enforce it. California’s Uniform
Act does not authorize enforcement of “fines or other penal-
ties.” Cal. Civ. Proc. Code § 1713.1(2). The Act includes a
savings clause, see Cal. Civ. Proc. Code § 1713.7, but the fine
is equally unenforceable under California common law doc-
trine.
California courts follow the generally-observed rule that,
“ ‘[u]nless required to do so by treaty, no state [i.e., country]
enforces the penal judgments of other states [i.e., coun-
tries].’ ” In re Manuel P., 215 Cal. App. 3d 48, 81 (1989)
(Wiener, J., dissenting) (quoting Restatement § 483 cmt. 3);
see also In re Marriage of Gray, 204 Cal. App. 3d 1239, 1253
(1988). This is consistent with the Restatement’s declaration
that “[c]ourts in the United States are not required . . . to
enforce judgments [from foreign countries] for the collection
of . . . fines[ ] or other penalties.” Restatement § 483; see also
30 Am. Jur. 2d Execution and Enforcement of Judgments
§ 846 (2004) (“Courts in the United States will not recognize
or enforce a penal judgment rendered in another nation.”). A
number of states have adopted an identical version of Califor-
nia’s Uniform Act, see Enforcing Foreign Judgments in the
United States and United States Judgments Abroad 28-32
(Ronald A. Brand ed., 1992), and the common law rule
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 443
against the enforcement of penal judgments is venerable and
widely-recognized. See Huntington v. Attrill, 146 U.S. 657,
673-74 (1892); see also 18 James Wm. Moore et al., Moore’s
Federal Practice § 130.05 (2002).
Penal judgments are those intended “ ‘to punish an offense
against the public justice of the [foreign] state[.]’ ” Chavarria
v. Superior Court, 40 Cal. App. 3d 1073, 1077 (1974) (quot-
ing Huntington, 146 U.S. at 673-74). The test to determine a
judgment’s nature
is not by what name the statute [on which the judg-
ment is based] is called by the legislature or the
courts of the State in which it was passed, but
whether it appears to the tribunal which is called
upon to enforce it to be, in its essential character and
effect, a punishment of an offense against the public,
or a grant of a civil right to a private person.
Huntington, 146 U.S. at 682.
There are a number of indications that the French judg-
ments are penal in nature. First, the word used by the French
court (“astreinte”) is consistently translated as “penalty” in the
record in this case. For example, the May 22 order provides
that Yahoo! and Yahoo! France are “subject to a penalty of
100,000 Euros per day of delay and per confirmed viola-
tion[.]” The November 20 order provides that Yahoo! is “sub-
ject to a penalty of 100,000 Francs per day of delay[.]”
Second, the French court held that Yahoo! was violating
Section R645-1 of the French Penal Code, which declares it
a “crime” to exhibit or display Nazi emblems, and which pre-
scribes a set of “criminal penalties,” including fines. Fr. C.
Pén. § R645-1, translation available at http://www.lex2k.org/
yahoo/art645.pdf. The monetary penalties against Yahoo! do
not lose their character as “penalties” simply because they
were obtained in a civil action. See Wisconsin v. Pelican Ins.
444 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Co., 127 U.S. 265, 299 (1888). Nor do they lose their charac-
ter because private litigants initiated the action. A civil rem-
edy is penal, as the term is understood in private international
law, if it awards a penalty “to a member of the public, suing
in the interest of the whole community to redress a public
wrong.” Weiss v. Glemp, 792 F. Supp. 215, 227 (S.D.N.Y.
1992); see also Loucks v. Standard Oil Co., 224 N.Y. 99, 101
(1918) (Cardozo, J.). In short, the label “civil” does not strip
a remedy of its penal nature. Thus, for example, an American
court is not required to enforce an order of contempt or an
award of punitive damages in a civil action. Cf. Frank v.
Reese, 594 S.W.2d 119, 121 (Tex. Civ. App. 1979) (“Other
jurisdictions are reluctant to give full faith and credit to an
order for contempt due to its punitive nature[.]”); Republic of
Philippines v. Westinghouse Elec. Corp., 821 F. Supp. 292,
295 (D.N.J. 1992) (refusing to enforce Philippine law provid-
ing for punitive damages); see also Third Restatement § 483
cmt. b (“Some states consider judgments penal for purposes
of non-recognition if multiple, punitive, or exemplary dam-
ages are awarded, even when no governmental agency is a
party.”).
Third, the penalties the French court imposed on Yahoo!
are primarily designed to deter Yahoo! from creating, in the
words of the November 20 order, “a threat to internal public
order.” The penalties are payable to the government and not
designed to compensate the French student groups for losses
suffered. See Farmers & Merchants Trust Co. v. Madeira,
261 Cal. App. 2d 503, 510 (1968) (suggesting that a judgment
is penal if it is designed to punish a defendant “for an offense
committed against the public justice” of the jurisdiction).
Judgments designed to deter conduct that constitutes a threat
to the public order are typically penal in nature. Cf. Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).
The French court awarded nominal damages of one Franc
to LICRA and UEJF in its first (but not its second) order. Bal-
anced against the far more substantial penalties payable to the
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 445
government (up to 100,000 Francs per day under the second
order), this award of one Franc cannot render the orders pri-
marily remedial rather than punitive in nature. See Ducharme
v. Hunnewell, 411 Mass. 711, 714 (1992) (determining that
whether a judgment requires enforcement “depends on
whether its purpose is remedial in nature, affording a private
remedy to an injured person, or penal in nature, punishing an
offense against the public justice”). Even the “restitution” the
court ordered — the printing of its judgment in publications
of UEJF’s and LICRA’s choosing — benefits the general
public and does not specifically compensate the two student
groups for a particular injury.
2. First Amendment
[24] 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 Amend-
ment, 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 moti-
vated 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 aban-
doned) speech-related activities, or to its future (but not cur-
rently 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
446 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
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 mea-
sure” 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 compli-
ance 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 nec-
essarily 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.
3. Summary
[25] In sum, it is extremely unlikely that any penalty, if
assessed, could ever be enforced against Yahoo! in the United
States. Further, First Amendment harm may not exist at all,
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 447
given the possibility that Yahoo! has now “in large measure”
complied with the French court’s orders through its voluntary
actions, unrelated to the orders. Alternatively, if Yahoo! has
not “in large measure” complied with the orders, its violation
lies in the fact that it has insufficiently restricted access to
anti-semitic materials by Internet users located in France.
There is some possibility that in further restricting access to
these French users, Yahoo! might have to restrict access by
American users. But this possibility is, at this point, highly
speculative. This level of harm is not sufficient to overcome
the factual uncertainty bearing on the legal question presented
and thereby to render this suit ripe.
C. The Dissent Addressed to Ripeness
The dissent addressed to the question of ripeness makes
two principal contentions. First, it contends that the French
court’s interim orders are unconstitutional on their face, and
that further factual development is therefore not needed. Sec-
ond, it contends that if any further factual development is nec-
essary, we should remand to the district court for that purpose.
We take these contentions in turn.
1. Unconstitutionality of the French Court’s Orders
The dissent repeatedly states that the French court’s interim
orders are facially unconstitutional. It writes, “The French
orders on their face . . . violate the First Amendment and are
plainly contrary to one of America’s, and by extension Cali-
fornia’s, most cherished public policies.” (Dissent at 481.) It
later refers to the French court’s orders as “foreign court
orders that so obviously violate the First Amendment.” (Id. at
15.) It writes further, “[T]he absence of a discernible line
between the permitted and the unpermitted . . . makes the
orders facially unconstitutional.” (Id. at 490.)
The dissent is able to conclude that the French court’s
interim orders are facially unconstitutional only by ignoring
448 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
what they say. The dissent appears to assume that the orders,
on their face, require Yahoo! to block access by United States
users. It writes, “[T]he question we face in this federal lawsuit
is whether our own country’s fundamental constitutional
guarantee of freedom of speech protects Yahoo! (and, deriva-
tively, at least its users in the United States) against some or
all of the restraints the French defendants have deliberately
imposed upon it within the United States.” (Id. at 473-74)
(emphasis in original). Further, “Yahoo! confront[s] the
dilemma of whether or not to stand by its United States con-
stitutional rights or constrain its speech and that of its user[.]”
(Id. at 480.) “Legions of cases permit First Amendment chal-
lenges to governmental actions or decrees that on their face
are vague, overbroad and threaten to chill protected speech.
Indeed, the sweeping injunction here presents just such a par-
adigmatic case.” (Id. at 480.) Still further, “Under the princi-
ples articulated today, a foreign party can use a foreign court
decree to censor free speech here in the United States[.]” (Id.
at 483.)
If it were true that the French court’s orders by their terms
require Yahoo! to block access by users in the United States,
this would be a different and much easier case. In that event,
we would be inclined to agree with the dissent. See, e.g., Sarl
Louis Feraud Int’l v. Viewfinder Inc., No. 04 Civ. 9760, 2005
U.S. Dist. LEXIS 22242 (S.D.N.Y. Sept. 29, 2005) (holding
unenforceable as contrary to the First Amendment a French
damage judgment based on photographs posted on the Inter-
net freely accessible to American viewers). But this is not the
case. The French court’s orders, by their terms, require only
that Yahoo! restrict access by users in France. The boundary
line between what is permitted and not permitted is somewhat
uncertain for users in France. But there is no uncertainty
about whether the orders apply to access by users in the
United States. They do not. They say nothing whatsoever
about restricting access by users in the United States.
The dissent’s conclusion that the French court’s orders are
unconstitutional may be based in part on an assumption that
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 449
a necessary consequence of compliance with the French
court’s orders will be restricted access by users in the United
States. But if this is the basis for the dissent’s conclusion, it
could hardly say that the orders are unconstitutional “on their
face.” Whether restricted access by users in the United States
is a necessary consequence of the French court’s orders is a
factual question that we cannot answer on the current record.
If the only consequence of compliance with the French
court’s orders is to restrict access by Internet users in France,
Yahoo!’s only argument is that the First Amendment has
extraterritorial effect. The dissent fails to acknowledge that
this is inescapably a central part of Yahoo!’s argument, let
alone acknowledge that it may be Yahoo!’s only argument.
2. Remand to the District Court
As a fallback position, the dissent contends that we should
remand to the district court for a determination whether a nec-
essary consequence of compliance with the French court’s
orders would be restriction on access by users in the United
States. This fallback contention is, of course, in tension with
the dissent’s conclusion that the French court’s orders are
unconstitutional on their face.
If a necessary consequence of compliance with the French
court’s orders were a restriction on access by American users,
this would be a different and much easier case. The dissent
argues that we should remand to the district court to deter-
mine whether this is a necessary consequence. But we cannot
obtain this determination merely by remanding to the district
court. Before the district court can engage in useful factfind-
ing, it must know whether (or to what extent) Yahoo! has
already sufficiently complied with the French court’s interim
orders. There are two alternative scenarios.
First, if the French court were to conclude, as LICRA and
UEJF contend, that Yahoo! has already complied “in large
450 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
measure” with the French court’s orders, Yahoo! simply has
no First Amendment argument. Yahoo! has explicitly stated
that its change of policy after the entry of the second interim
order was undertaken for reasons entirely independent of the
French court’s orders. Under this scenario, the question of
compliance would disappear, and the district court would
have no factfinding role.
Second, if the French court were to determine, contrary to
LICRA and UEJF’s contention, that Yahoo! has not complied
“in large measure,” the question of the necessary conse-
quences for American users would then arise. If and when the
French court determines what further compliance is neces-
sary, there might be some appropriate factfinding role for the
district court on that question. But even under this scenario,
we first need to get a determination from the French court as
to what further compliance is necessary, for the district
court’s factfinding role is dependent on there having been
such a prior determination by the French court.
Under either scenario, the essential initial step is to find out
from the French court whether Yahoo! has complied “in large
measure” with its orders, and, if not, what further compliance
is required. Until we know that, the district court cannot per-
form any useful factfinding on the question of whether a nec-
essary consequence of compliance with the French court’s
orders will be to restrict access by Internet users in the United
States.
Conclusion
First Amendment issues arising out of international Internet
use are new, important and difficult. We should not rush to
decide such issues based on an inadequate, incomplete or
unclear record. We should proceed carefully, with awareness
of the limitations of our judicial competence, in this undevel-
oped area of the law. Precisely because of the novelty, impor-
tance and difficulty of the First Amendment issues Yahoo!
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 451
seeks to litigate, we should scrupulously observe the pruden-
tial limitations on the exercise of our power.
Yahoo! wants a decision providing broad First Amendment
protection for speech and speech-related activities on the
Internet that might violate the laws or offend the sensibilities
of other countries. As currently framed, however, Yahoo!’s
suit comes perilously close to a request for a forbidden advi-
sory opinion. There was a live dispute when Yahoo! first filed
suit in federal district court, but Yahoo! soon thereafter volun-
tarily changed its policy to comply, at least in part, with the
commands of the French court’s interim orders. This change
in policy may or may not have mooted Yahoo!’s federal suit,
but it has at least come close. Unless and until Yahoo!
changes its policy again, and thereby more clearly violates the
French court’s orders, it is unclear how much is now actually
in dispute.
It is possible that because of Yahoo!’s voluntary change of
policy it has now complied “in large measure” with the
French court’s orders. It is also possible that Yahoo! has not
yet complied “in large measure.” If further compliance is
required, Yahoo! will have to impose further restrictions on
access by French users. The necessary consequence of such
further restrictions on French users may or may not be that
Yahoo! will have to impose restrictions on access by Ameri-
can users. Until we know whether further restrictions on
access by French, and possibly American, users are required,
we cannot decide whether or to what degree the First Amend-
ment might be violated by enforcement of the French court’s
orders, and whether such enforcement would be repugnant to
California public policy. We do not know whether further
restrictions are required, and what they might be, because
Yahoo! has chosen not to ask the French court. 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.
452 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
An eight-judge majority of the en banc panel holds, as
explained in Part II of this opinion, that the district court prop-
erly 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.
[26] We therefore REVERSE and REMAND to the district
court with instructions to dismiss without prejudice.
FERGUSON, Circuit Judge, with whom O’SCANNLAIN and
TASHIMA, Circuit Judges, join with respect to Part I, concur-
ring in the judgment:
I concur that the District Court judgment in favor of
Yahoo! should be reversed and the case dismissed, but I do
so based on reasons other than those set forth by the majority.
I do not believe that lack of ripeness is the proper ground to
dismiss Yahoo!’s suit. Instead, I believe that the District
Court did not properly exercise personal jurisdiction over the
defendants and also should have abstained from deciding
Yahoo!’s claims. Yahoo!’s suit should be dismissed, there-
fore, either under Rule 12(b)(2) or Rule 12(b)(6) of the Fed-
eral Rules of Civil Procedure.
I.
The District Court did not properly exercise personal juris-
diction over La Ligue Contre Le Racisme et L’Antisemitisme
(“LICRA”) and L’Union des Etudiants Juifs de France
(“UEJF”). LICRA and UEJF’s suit was not “expressly aimed”
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 453
at California under the “effects” test of Calder v. Jones, 465
U.S. 783, 789-90 (1984), which, I agree with Judge Fletcher,
governs this case and may be appropriately applied to the
French court orders.
An intentional act aimed exclusively at a location other
than the forum state, which results in harm to a plaintiff in the
forum state, does not satisfy the “express aiming” requirement
under Calder. In Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797, 799 (9th Cir. 2004), an Ohio car dealer ran an
advertisement in the Akron Beacon Journal that featured
Arnold Schwarzenegger as “the terminator” without first
seeking Schwarzenegger’s permission. We held that the
advertisement, though it wrongfully depicted Schwarzeneg-
ger, a California resident, “was expressly aimed at Ohio rather
than California.” Id. at 807. Because the dealer’s “express aim
was local,” the district court lacked jurisdiction to hear
Schwarzenegger’s complaint. Id. Cf. Dole Food Co., Inc. v.
Watts, 303 F.3d 1104, 1112 (9th Cir. 2002) (finding that
European defendants “expressly aimed” at California, the
forum state, since they “communicated directly with Dole’s
California managers to [fraudulently] induce them . . . to enter
into significant and detrimental contractual arrangements”);
Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d
1082, 1088 (9th Cir. 2000) (deciding that defendant’s “letter
was expressly aimed at California[,]” the forum state, “be-
cause it individually targeted [Bancroft & Masters], a Califor-
nia corporation doing business almost exclusively in
California”).
The majority provides a one-sentence explanation for why
LICRA and UEJF’s suit was expressly aimed at California:
“The suit sought, and the French court granted, orders direct-
ing Yahoo! to perform significant acts in California.” Maj. op.
at 425.
That is not true. LICRA and UEJF’s suit sought French
court orders directing Yahoo! to perform significant acts
454 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
locally in France, not in California. The May 22, 2000
interim order declares: “[B]y permitting [anti-Semitic] objects
to be viewed in France and allowing surfers located in France
to participate in such a display of items for sale, the Company
Yahoo! Inc. is therefore committing a wrong in the territory
of France, a wrong whose unintentional character is averred
but which has caused damage to be suffered by LICRA and
UEJF, both of whom are dedicated to combating all forms of
promotion of Nazism in France.” (emphases added).
To comply with French law, Yahoo! would need “to pre-
vent surfers calling from France from viewing these [anti-
Semitic] services on their computer screen”; “to identify the
geographical origin of a visiting site from the caller’s IP
address, which should enable it to prevent surfers calling from
France . . . from accessing services and sites which[,] when
displayed on a screen installed in France[,] . . . is liable to be
deemed an offence in France and/or to constitute a manifestly
unlawful trouble [under French law]”; and “to take all mea-
sures to dissuade and make impossible any access by a surfer
calling from France to disputed sites and services of which
the title and/or content constitutes a threat to internal public
order.” (emphases added).
There is no evidence whatsoever that LICRA and UEJF
had any intention to expressly aim their suit at California. The
majority believes that because the effect of the French court
orders was for Yahoo! to perform significant acts in Califor-
nia, express aiming on the part of LICRA and UEJF was “ob-
vious.” Maj. op. at 425. But the majority fails to recognize
what Schwarzenegger makes clear: express aiming requires
intentional conduct by a party directed at the forum state.
LICRA and UEJF are two anti-racist French civil liberties
organizations. Yahoo! is a global Internet service. At the time
LICRA and UEJF brought their suit, they could not precisely
have known of Yahoo!’s server locations, security capabili-
ties, or technical procedures or, more important, how they
relate to Yahoo!’s California-based operations. LICRA and
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 455
UEJF had one aim and one aim only: to prevent French citi-
zens from using “Yahoo.fr” and “Yahoo.com” to access ille-
gal anti-Semitic hate merchandise in France. They were
plainly concerned with Yahoo!’s actions within France,
regardless of where those actions emanated from.
“It may be true that [LICRA and UEJF]’s intentional [suit]
eventually caused harm to [Yahoo!] in California, and
[LICRA and UEJF] may have known that [Yahoo!] [was
based] in California. But this does not confer jurisdiction, for
[LICRA and UEJF]’s express aim was local.” Schwarzeneg-
ger, 374 F.3d at 807.
II.
The District Court should have also abstained from decid-
ing Yahoo!’s claims.
The common law act of state doctrine specifies:
Every foreign state is bound to respect the indepen-
dence of every other sovereign state, and the court of
one country will not sit in judgment on the acts of
government of another, done within its own territory.
Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by
sovereign powers as between themselves.
Underhill v. Hernandez, 168 U.S. 250, 252 (1897). “Judicial
. . . engagement in the task of passing on the validity of for-
eign acts of state may hinder the conduct of foreign affairs.”
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
(1964). The act of state doctrine therefore “mandates [judi-
cial] abstention.” Liu v. Republic of China, 892 F.2d 1419,
1432 (9th Cir. 1989); see also West v. Multibanco Comermex,
S.A., 807 F.2d 820, 827 (9th Cir. 1987) (“The act of state doc-
trine is a combination justiciability and abstention rule . . .”).
456 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
While a foreign court judgment arising out of private litiga-
tion is generally not an act of state, it can be when it gives
effect to the public interest of the foreign government. See
Philippine Nat’l Bank v. U.S. Dist. Ct. of Hawaii, 397 F.3d
768, 773 (9th Cir. 2005); Liu, 892 F.2d at 1433-34 & n.2 (cit-
ing Restatement (Second) of Foreign Relations of the United
States § 41 cmt. d (1965) (“A judgement of a court may be an
act of state”)).
In Philippine Nat’l Bank, a dispute arose between a class
of plaintiffs and the Republic of Philippines over the right to
the assets of Philippine President Ferdinand Marcos’s estate.
Id. at 770. The class obtained a large judgment in a federal
district court in Hawaii against the Marcos estate for human
rights violations by the Marcos regime. At the same time, the
Republic of Philippines brought suit in the Philippines seek-
ing forfeiture of the Marcos estate’s assets on the ground that
they were stolen by Marcos from the Philippine government
and its people. Id. at 771. The Philippine Supreme Court
agreed with the Republic of Philippines and ordered the assets
to be forfeited to the Philippine Government. Id. A federal
district court in Hawaii, however, ruled that the Philippine
Supreme Court judgment violated the due process rights of
the class of plaintiffs and was entitled to no judicial defer-
ence. Id. at 772.
We disagreed and held that the Philippine Supreme Court
judgment was an act of state because it effectuated the “statu-
tory mandate [of the Philippine government] to recover prop-
erty allegedly stolen from the treasury.” Id. at 773 (quoting In
re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d
539, 546 (9th Cir. 1996)). Significantly, we held that the “col-
lection efforts of the Republic [of Philippines],” even though
they extended beyond Philippine’s borders into Singapore,
were “governmental,” and the Philippine Supreme Court deci-
sion upholding those efforts was therefore an act of state.
Philippine Nat’l Bank, 397 F.3d at 773 (“[T]he Republic’s
‘interest in the enforcement of its law does not end at its bor-
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 457
ders’ . . .” ) (quoting Callejo v. Bancomer, S.A., 764 F.2d
1101, 1121-25 (5th Cir. 1985)).
Like the Philippine forfeiture judgment, both French court
orders at issue in this case constitute acts of state. Three fac-
tors lead to this conclusion. First, while LICRA and UEJF
were private French litigants, they were acting as non-
governmental, anti-racist associations and institutional part-
ners with the French government in fighting anti-Semitism.1
Their injunctive actions against Yahoo! clearly followed the
French government’s mandate to enforce Le Nouveau Code
Penal Art. R. 645-2 (“Nazi Symbols Act”), a criminal provi-
sion. The record makes clear, for example, that LICRA and
UEJF litigated with the assistance of Mr. Pierre Dillange,
First Deputy Prosecutor representing the office of the Public
Prosecutor to the County Court of Paris. Dillange, in fact,
“demand[ed]” to the French court “that the reality of the dam-
ages suffered by [LICRA and UEJF] be recognised.” Prior to
the issuance of the French court orders, Dillange publicly con-
demned the sale of Nazi memorabilia on Yahoo.fr and
Yahoo.com calling for “constraints and an injunction” against
Yahoo!.2 LICRA and UEJF litigated their claims in accor-
dance with the demands of the French public prosecutor.
Second, French justice Jean-Jacques Gomez expressly rec-
ognized in his court orders the compelling interest of France
to rid its country of anti-Semitic merchandise and speech
within its borders. In his May 22, 2000 interim order, for
example, he called Yahoo.com “the largest vehicle in exis-
1
The French anti-racism Pleven law (“Loi Pléven”), passed in July
1972, expressly permits French anti-racist associations to file legal actions
to combat racism. The law confers upon French anti-racist associations
official “civil party” status in such matters. The French text of the law is
referenced at: http://www.culture.gouv.fr/culture/infos-pratiques/droit-
culture/cinema/pdf/l-290781.pdf; see also Eric Bleich, RACE POLITICS IN
AND FRANCE: IDEAS AND POLICYMAKING SINCE THE 1960S 135-39 (2003).
2
Reuters, “Paris Prosecutor Condemns Nazi Auctions on Yahoo,” May
15, 2000, available at http://www.icare.to/archivemay2000.html.
458 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
tence for the promotion [of] Nazism” and described the com-
mercial sale of Nazi objects as “an affront to the collective
memory of a country profoundly traumatized by the atrocities
committed by and in the name of the criminal Nazi regime
against its citizens.” Access to Nazi memorabilia on Yahoo!’s
auction sites “constitute[d] a threat to internal public order”
and a “wrong in the territory of France.” Like the Philippine
Supreme Court, the French court here gave clear effect to the
collective efforts of French civil liberties organizations, the
French government, and French law enforcement to enforce
French criminal provisions against anti-Semitism. Justice
Gomez’s opinion sets forth the moral judgment of France
itself.
Third, the French court orders reflected judicial enforce-
ment of a robust French state policy against racism, xenopho-
bia, and anti-Semitism. France has acceded to the
International Convention on the Elimination of all Forms of
Racial Discrimination (ICEFRD) (1965) and the International
Covenant on Civil and Political Rights (ICCPR) (1966), both
of which include provisions against racist speech. See ICCPR,
Art. 20-2; ICEFRD, Art. 4(a). Since World War II, France has
introduced sweeping legislation to combat anti-Semitism. In
July 1972 it passed “Loi Pléven,” which criminalized a range
of racist behavior from racial defamation and provocation to
racial hatred and violence, and in July 1990 it passed “Loi
Fabius-Gayssot,” which criminalized speech that denied the
existence of the Holocaust or that celebrated Nazism. The
Nazi Symbols Act, which Yahoo! was found guilty of violat-
ing, encompassed France’s earlier dramatic efforts to crimi-
nalize racist speech within its borders.
It is apparent then that the French court orders were not
merely private judgments but, in fact, reflected the sentiments
of two French civil liberties organizations, the French public
prosecutor, and, indeed, France itself. They were acts of state.3
3
It is also worth noting that the French court orders were final criminal
judgments that Yahoo! elected not to appeal through the French court sys-
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 459
The District Judge sitting in San Jose, California did not have
the authority to second guess these orders and should have
abstained from invalidating them. He should have deferred to
the Executive and Congress to assess the foreign conse-
quences of France’s broad policy against anti-Semitic hate
speech. See Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 707 (9th Cir. 1992) (“The [act of state] doctrine
reflects the prudential concern that the courts, if they question
the validity of foreign acts taken by sovereign states, may be
interfering with the conduct of American foreign policy by
the Executive and Congress.”) (footnote and citations omit-
ted). Our current government, in fact, is already “fully com-
mitted to monitoring and combating anti-Semitism throughout
the world.”4
The criminal statutes of most nations do not comport with
the U.S. Constitution. That does not give judges in this coun-
try the unfettered authority to pass critical judgment on their
validity, especially where, as here, the criminal statute
embodies the determined will of a foreign sovereign to protect
its borders from what it deems as morally reprehensible
speech of the worst order.
tem. Instead, Yahoo! brought the present declaratory relief action for a
U.S. district court to invalidate the French court orders based on a viola-
tion of Yahoo!’s First Amendment right. In so doing, Yahoo! here is
essentially no different than a party losing in state court who seeks to vin-
dicate his or her federal rights by challenging the adverse state court judg-
ment in federal district court. The Supreme Court has barred such
opportunistic attempts at relitigation under the Rooker-Feldman doctrine.
See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517,
1521-22 (2005).
4
Bureau of Democracy, Human Rights, and Labor, U.S. Dept. of State,
REPORT ON GLOBAL ANTI-SEMITISM, 5-6, 13-15 (January 2005) (discussing
France’s efforts to combat anti-Semitism). On October 16, 2004, President
George W. Bush signed into law the Global Anti-Semitism Review Act,
Pub. L. No. 108-332, which authorized the 2005 report, the first of its
kind.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 461
Volume 2 of 2
462 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
O’SCANNLAIN, Circuit Judge, with whom FERGUSON and
TASHIMA, Circuit Judges, join, concurring only in the judg-
ment:
Our requirement that a defendant have “purposefully
availed” himself of the protections and benefits of the forum
state, or have “purposefully directed” his activities into the
forum state, must be read in light of the Supreme Court’s
admonition in Milliken v. Meyer, 311 U.S. 457 (1940), that
the exercise of personal jurisdiction must comport with “tradi-
tional notions of fair play and substantial justice.” Id. at 463.
Because I cannot agree that California’s exercise of personal
jurisdiction over La Ligue Contre Le Racisme et
L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs
de France (“UEJF”) comports with those basic principles, I
respectfully dissent from the majority’s opinion while concur-
ring in its conclusion that Yahoo!’s suit must be dismissed.
For similar reasons, I concur in Judge Tashima’s concurrence
and in Part I of Judge Ferguson’s concurrence.
I
A State’s jurisdiction is defined not by force or influence
but by physical territory and its judicial power traditionally
extended over only those persons and property within its bor-
ders. See Pennoyer v. Neff, 95 U.S. 714, 720-22 (1878). The
idea of “minimum contacts” developed as a surrogate for
actual presence in a State but did not alter the essentially terri-
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 463
torial nature of jurisdiction. The question in every personal
jurisdiction case, then, is whether an individual’s contacts
with the forum State are so substantial that they render the
extension of sovereign power just, notwithstanding his lack of
physical presence there.
A
The personal jurisdiction requirement is not merely a rule
of civil procedure; it is a constitutional constraint on the pow-
ers of a State, as exercised by its courts, in favor of the due
process rights of the individual. See Omni Capital Int’l v.
Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“The require-
ment that a court have personal jurisdiction flows not from
[Article] III, but from the Due Process Clause. It represents a
restriction on judicial power not as a matter of sovereignty,
but as a matter of individual liberty.”). Grounded in the Four-
teenth Amendment’s protection of the processes necessary to
ensure basic fairness in the application of the law, the require-
ment that an individual have “certain minimum contacts” with
the relevant forum “such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial jus-
tice,’ ” International Shoe, 326 U.S. 310, 316 (1945) (quoting
Milliken, 311 U.S. at 463), protects him from the unpredict-
able and burdensome exercise of authority by foreign courts.
It follows from this that the rights and interests of Yahoo! and
the interests of the State of California, if not irrelevant to the
inquiry, are clearly subordinate to the rights of LICRA and
UEJF, the parties against whom jurisdiction is asserted and
whose rights are protected by the Due Process Clause.
The Supreme Court has advised that
the constitutional touchstone remains whether the
defendant purposefully established “minimum con-
tacts” in the forum State. Although it has been
argued that foreseeability of causing injury in
another State should be sufficient to establish such
464 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
contacts there when policy considerations so
require, the Court has consistently held that this kind
of foreseeability is not a “sufficient benchmark” for
exercising personal jurisdiction. Instead, the fore-
seeability that is critical to due process analysis is
that the defendant’s conduct and connection with the
forum State are such that he should reasonably
anticipate being haled into court there.
Burger King v. Rudzewicz, 471 U.S. 462, 542 (1985) (empha-
ses added). By requiring that individuals have “fair warning
that a particular activity may subject [them] to the jurisdiction
of a foreign sovereign,” Shaffer v. Heitner, 433 U.S. 186, 218
(1977) (STEVENS, J., concurring in judgment), the Due Pro-
cess Clause “gives a degree of predictability to the legal sys-
tem that allows potential defendants to structure their primary
conduct with some minimum assurance as to where that con-
duct will and will not render them liable to suit.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
B
The Supreme Court has never approved such a radical
extension of personal jurisdiction as would sanction the
majority’s holding that, by litigating a bona fide claim in a
foreign court and receiving a favorable judgment, a foreign
party automatically assents to being haled into court in the
other litigant’s home forum. Such a result cannot be recon-
ciled with the “constitutional touchstone” of foreseeability:
that the defendant “should reasonably anticipate being haled
into court” in the forum. Burger King, 471 U.S. at 542.
In Calder v. Jones, 465 U.S. 783 (1984), the defendants
should reasonably have expected that, by circulating a libel-
ous story in California about a California celebrity, they
would be haled into court in California to answer for their tor-
tious behavior. And in Burger King, because the defendants’
business ties with the State of Florida were “shielded by the
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 465
‘benefits and protections’ ” of Florida’s laws, it was “pre-
sumptively not unreasonable to require [them] to submit to
the burdens of litigation [there] as well.” 471 U.S. at 543.
These cases stake out the limits of personal jurisdiction as
approved by the Supreme Court.
LICRA’s and UEJF’s actions lie beyond that limit. Neither
party has ever carried on business or any other activity
through which they have availed themselves of the benefits
and protections of California’s laws,1 nor should either party
have reasonably anticipated that it would be haled into court
in California to answer for the legitimate exercise of its rights
in France.
II
This case was reheard en banc primarily for the purpose of
answering the question of whether the underlying action in a
non-contract case must be tortious or otherwise wrongful to
justify the exercise of personal jurisdiction, or whether the
“express aiming” of any action, regardless of culpability, will
suffice.2 Although the resolution of that question does not
affect my conclusion that California cannot exercise personal
jurisdiction over LICRA or UEJF, I respectfully disagree with
the majority’s interpretation of Calder on this point.
1
I agree with the majority that the mailing in good faith of cease and
desist letters and the use of the United States Marshal’s Office to effect
service of process of documents related to the French legal proceedings
are not sufficient bases for jurisdiction. Maj. op. at 423-25.
2
Although the fact is ignored by the majority, this question was settled
law in our circuit prior this appeal being reheard en banc. In Bancroft &
Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000),
the panel made it clear that its decision relied on the assumption that the
defendant had engaged in tortious conduct. Judge Sneed, writing for a
majority of the panel, further held that “[j]urisdiction in California would
be ripe for challenge if following the development of trial it should appear
that ANI acted reasonably and in good faith to protect its trademark
against an infringer.” Id. at 1089 (Sneed, J., concurring).
466 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
A
Under the majority’s reading of Calder, acts giving rise to
personal jurisdiction in a non-contract case need not be
wrongful. Maj. op. at 423 (“[W]e do not read Calder neces-
sarily to require in purposeful direction cases that all (or even
any) jurisdictionally relevant effects have been caused by
wrongful acts.”). That conclusion is undermined by the lan-
guage of Calder itself and requires the majority to divorce
that case’s holding from its fact—always a dubious exercise.
In Calder, the Supreme Court affirmed a decision that had
“concluded that a valid basis for jurisdiction existed on the
theory that petitioners intended to, and did, cause tortious
injury to respondent in California.” Calder, 465 U.S. at 1485
(emphasis added). The Court itself held that “[i]n this case,
petitioners are primary participants in an alleged wrongdoing
intentionally directed at a California resident, and jurisdiction
is proper on that basis.” Id. at 1487 (emphasis added). The
wrongfulness of the defendants’ acts was, therefore, a key ele-
ment in the jurisdictional calculus, possibly because a person
who has committed a wrongful act should expect to be haled
into court by his victim in the victim’s home State. Although
the Court might have reached the same result if the act in
question had not been wrongful—as the majority apparently
presumes it would—it is reckless of us to proceed on the basis
of such speculation beyond what is currently the farthest
reach of personal jurisdiction approved by the Court.
B
The majority’s jurisdictional legerdemain is nimble but,
like any trick, does not stand up to close scrutiny. It begins
innocuously enough by noting that the traditional analysis of
minimum contacts depends on whether the disputed act
sounds in tort or in contract. In tort cases, “we typically
inquire whether a defendant ‘purposefully direct[s] his activi-
ties’ at the forum state,” maj. op. at 420. And in commercial
and contract cases, “we typically inquire whether a defendant
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 467
‘purposefully avails itself [sic] of the privilege of conducting
activities’ or ‘consummate[s] [a] transaction’ in the forum.”
Id. and do not require that the defendants actions be wrongful.
However, that traditional distinction is abruptly jettisoned
when the majority next asserts that “in any personal jurisdic-
tion case we must evaluate all of a defendant’s contacts with
the forum state, whether or not those contacts involve wrong-
ful activity by the defendant.” Id. at 422 (emphases added).
The majority’s statement is, quite literally, unprecedented.
With a stroke of its pen, the majority extends the analysis pre-
viously applied only to commercial and contract cases to all
assertions of personal jurisdiction. Tellingly, the only cases
that the majority musters in support of its novel assertion are
commercial or contract-related “purposeful availment” cases.
In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the
Supreme Court held that when an out-of-state mail order com-
pany “purposefully avails itself of the benefits of an economic
market in the forum State, it may subject itself to the State’s
in personam jurisdiction even if it has no physical presence in
the State.” 504 U.S. at 302. And, in Burger King, the Court
held that jurisdiction was proper on the grounds that defen-
dants’ business ties with the State of Florida were “shielded
by the ‘benefits and protections’ ” of Florida’s laws. 471 U.S.
at 543. In sharp contrast, every “purposeful direction” case
that the majority cites in its opinion involved tortious or other-
wise wrongful acts by the defendants.
Given our long line of precedent applying the “purposeful
availment” test only in contract and commercial cases, and the
majority’s concession that this case should be analyzed under
Calder’s “purposeful direction” test, see maj. op. at 423, the
majority’s conflation of the elements of these two tests is an
unseemly act of judicial slight of hand. LICRA and UEJF are,
indisputably, non-commercial actors who have never purpose-
fully availed themselves of the benefits or protections of Cali-
fornia’s laws. Therefore, neither Calder nor any other
468 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Supreme Court precedent justifies California’s assertion of
personal jurisdiction over them.
III
LICRA’s and UEJF’s actions and contacts with the State of
California were, at most, incidental to the legitimate exercise
of their rights under French law. They should not have rea-
sonably anticipated being haled into court in California to
answer for their prosecution of a lawsuit in France. Because
California’s exercise of personal jurisdiction over them on
that basis would violate traditional notions of fair play and
substantial justice and, therefore, the procedural guarantees of
the Due Process Clause, I would remand the case with
instructions to dismiss for want of personal jurisdiction and
not reach the issue of ripeness.
Thus, while I must dissent from its rationale, I concur in the
majority’s conclusion that the district court’s opinion must be
reversed.
TASHIMA, Circuit Judge, with whom FERGUSON and
O’SCANNLAIN, Circuit Judges, join, concurring in the judg-
ment:
I concur in the judgment reversing and remanding with
instructions to dismiss this action, but I dissent from the
majority’s conclusion that personal jurisdiction exists over La
Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and
L’Union des Etudiants Juifs de France (“UEJF”). I therefore
concur in Part I of Judge Ferguson’s concurring opinion —
that a district court located in California cannot exercise per-
sonal jurisdiction over LICRA and UEJF.
Because I believe that the district court lacked in personam
jurisdiction, I would not reach the issues discussed in Part III
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 469
of the majority opinion1 — ripeness — and Part II of Judge
Ferguson’s concurring opinion — whether, even if it had
jurisdiction over the defendants, the district court should have
abstained from deciding this case. I do believe, however, that
Judge Ferguson’s eloquent discussion in Part II of the reasons
why he would hold that abstention is proper further supports
why personal jurisdiction is lacking in this case.
LICRA and UEJF (“defendants”) had only three contacts
with California. These contacts were a cease and desist letter,
the service of process to commence the French action, and the
subsequent service of two interim orders on Yahoo!. Service
was made in accordance with the requirements of the Hague
Convention on the service abroad of judicial documents. As
the majority rightly acknowledges, these contacts are an
insufficient basis for the exercise of personal jurisdiction over
defendants. Maj. op. at 422-25.
The majority goes on, however, to find a sufficient basis for
the exercise of personal jurisdiction over defendants in two
interim orders issued by the French court because those orders
“direct[ed] Yahoo! to take actions in California, on threat of
a substantial penalty.” Id. at 425. The majority’s conclusion
is not based on any contact with California, but on acts which
it contends were “expressly aimed at the forum state.” Id.
(quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 805 (9th Cir. 2004)). But neither Schwarzenegger nor
any other case relied on by the majority based a finding of
specific jurisdiction on conduct expressly aimed at the forum
state which conduct was not also a contact with the forum
state. Here, for the first time, the majority completely divorces
the expressly-aimed conduct from the requirement that that
conduct also be a contact with the forum state. Thus, I submit
1
I refer to the opinion authored by Judge W.A. Fletcher as the “majority
opinion,” because it commands a majority of the en banc court on the
issue of personal jurisdiction, although that is not the majority that con-
trols the disposition of the case.
470 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
that the finding of personal jurisdiction on the basis of Calder’s2
“effects” test in the circumstances of this case is a radical
extension of that doctrine.
It is self-evident that the orders are the orders of the French
court, not acts of defendants. Thus, more precisely, the major-
ity’s finding of personal jurisdiction is, in fact, based on
LICRA and UEJF petitioning the French court for relief under
French law. But should the petitioning by a citizen of the
courts of his or her own country to uphold the laws of that
country form the sole basis of personal jurisdiction over that
citizen by the courts of a foreign country? The majority’s
answer is yes. That answer, seems to me, to be perverse. First,
the bringing and prosecuting of an action in a French court are
all acts done wholly in France. None of these acts constitutes
a “contact” with California. Second, no citizen of any country
can safely sue a foreign defendant under the majority’s theory
of specific jurisdiction because the sought judgment, includ-
ing an ordinary money judgment for injury or damages, will
have an adverse “effect” on the defendant’s purse or treasury
in that defendant’s home country. In this sense, every lawsuit
naming a foreign defendant can be said to be expressly aimed
at that defendant’s home state (or nation). Thus, unless it is
anchored to a contact with the forum, express aiming becomes
a meaningless test in terms of due process.
Moreover, courts, even when acting at the behest of a pri-
vate petitioner, have an independent interest and obligation to
uphold their nations’ domestic laws, particularly when, as
here, those laws are designed to carry out an important and
strongly-held national policy. Thus, as Judge Ferguson
reminds us, it is the manner in which the French courts have
determined to vindicate French national policy — that “state
action” — that has the adverse “effect” in California that
Yahoo! is complaining about, not the acts of defendants in
petitioning for French anti-Semitism laws to be upheld. It was
2
Calder v. Jones, 465 U.S. 783, 789-90 (1984).
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 471
not defendants who determined the terms and scope of injunc-
tive relief, nor was it defendants who determined that continu-
ing non-compliance should be “subject to a penalty,” or the
amount of such a penalty. Needless to say, defendants will not
be the ones who decide whether such penalties ultimately will
have to be paid or waived.3
Whatever other conduct Calder’s “effects” test was
intended to encompass, it surely was not intended to include
attribution of the effects of an intervening court’s order when
a citizen does no more that petition a court in his own country
for relief under domestic law, particularly in a case, such as
this, in which defendants have had no contact that would
“provide a sufficient basis for jurisdiction.”4 Maj. op. at 423.
For these additional reasons, I concur in Part I of Judge Fer-
guson’s concurring opinion.
FISHER, Circuit Judge, with whom HAWKINS, PAEZ,
CLIFTON and BEA, Circuit Judges, join, concurring in part
and dissenting in part:1
3
Indeed, if any penalties are ever paid, they will not redound to the ben-
efit of defendants, but “are payable to the government.” Maj. op at 444.
4
What the majority opinion calls a “third contact,” maj. op. at 423
(“However, the third contact, considered in conjunction with the first two,
does provide such a [sufficient] basis [for personal jurisdiction].”), is not
a “contact” with California at all. The majority classifies as the “[t]hird,
and most important [contact], LICRA and UEJF have obtained two
interim orders from the French court directing Yahoo! to take actions in
California, on threat of a substantial penalty.” Id. at 425. It cites no author-
ity for the proposition that conduct by LICRA and UEJF which takes place
entirely in France can be classified as a “contact” with California.
1
Like Judge Tashima, we refer to Judge Fletcher’s opinion as the “ma-
jority” or the “majority opinion” because an eight-judge majority of the en
banc court joins Part II of the opinion on the issue of personal jurisdiction.
As the per curiam and Judge Fletcher’s opinions explain, however, Judge
Fletcher’s articulated rationale on ripeness in Part III of his opinion repre-
sents a three-judge plurality and does not command a majority of the en
banc court. Nevertheless, we refer to Judge Fletcher’s opinion as the “ma-
jority” throughout our dissent for ease of reference.
472 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
I. Overview
Stated simply, the issue before us is whether a United
States Internet service provider, whose published content has
been restricted by a foreign court injunction, may look to the
United States federal courts to determine the enforceability of
those restrictions under the United States Constitution’s First
Amendment. The French injunctive orders — backed by sub-
stantial, retroactive monetary penalties for noncompliance —
require Yahoo! to block access from French territory to Nazi-
related material on its website.2 Some prohib-
ited content is readily identifiable, such as Nazi artifacts or
copies of Mein Kampf. Much, however, is not. The orders
impose the following sweeping mandate:
We order the Company YAHOO! Inc. to take all
necessary measures to dissuade and render impossi-
ble 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.
(Emphasis added.) In traditional First Amendment terms, this
injunctive mandate is a prior restraint on what Yahoo! may
post (or control access to) on its U.S.-located server —
imposed under principles of French law and in such facially
vague and overbroad terms that even the majority does not
know “whether further restrictions on access by French, and
possibly American, users are required” to comply with the
French orders. (Op. at 451.) Yahoo! can either hope to com-
ply with what the French court (and the defendants here)
deems to be inappropriate content by attempting to block
access to material Yahoo! thinks the orders cover or by simply
2
As the majority recognizes, any Internet user in France or a French ter-
ritory — whether or not a French citizen or resident — can gain access
to Yahoo!’s U.S.-based server by typing into her browser or
linking through . (Op. at 412.)
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 473
removing any questionable content altogether. Or Yahoo! can
ignore the French court’s mandate in whole or in part and
accept the risk of substantial accruing fines. The majority,
however, is unmoved. For it, Yahoo!’s proper recourse is to
take its case back to France. We cannot agree.
As the district court readily concluded in its thoughtful
opinion, “[a] United States court constitutionally could not
make such an order.” Yahoo!, Inc. v. La Ligue Contre Le
Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181, 1189
(N.D. Cal. 2001) (hereinafter “Yahoo II”). It specifically
found that the orders are “far too general and imprecise to sur-
vive the strict scrutiny required by the First Amendment,” and
that “[p]hrases such as ‘all necessary measures’ and ‘render
impossible’ instruct Yahoo! to undertake efforts that will
impermissibly chill and perhaps even censor protected
speech.” Yahoo II, 169 F. Supp. 2d at 1189-90 (citing Bd. of
Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987); and
Gooding v. Wilson, 405 U.S. 518 (1972)). The district court
emphasized that “ ‘[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.’ ” Id. at 1190 (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976) (citing New York Times Co. v. United
States, 403 U.S. 713 (1971))).
The issue is not whether the French defendants who
obtained the injunctive orders, or the French court that issued
them, are justified in trying to suppress hateful speech. We of
course recognize the horrors of the Holocaust and the scourge
of anti-Semitism, and France’s understandable interest in pro-
tecting its citizens from those who would defend or glorify
either. Nor is the issue one of extra-territorial application of
the First Amendment; if anything, it is the extra-territorial
application of French law to the United States. We do not
question the validity of the French orders on French soil, and
Yahoo! has complied with the orders as they relate to its
website. Rather the question we face in this
federal lawsuit is whether our own country’s fundamental
474 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
constitutional guarantee of freedom of speech protects Yahoo!
(and, derivatively, at least its users in the United States)
against some or all of the restraints the French defendants
have deliberately imposed upon it within the United States.
“ ‘[P]rior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amend-
ment rights.’ ” Tory v. Cochran, 125 S. Ct. 2108, 2111 (2005)
(quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559
(1976)).
The majority, after properly opening the door to the federal
courthouse by upholding personal jurisdiction, nonetheless
turns a blind eye to the constitutional free speech interests of
Yahoo!, throwing it out of court because those interests are
not “ripe” for adjudication. The majority’s thesis rests on the
contention that the French “orders do not by their terms limit
access by users outside France in any way.” (Op. at 438.) But
as the majority recognizes elsewhere in its opinion (Op. at
438-441), the crux of this case is not in the words of the order
alone, but in their application. And to assess the effects of the
orders, one cannot simply disregard the “what” of the orders
and focus only on their “who.”
As we shall explain later, we disagree with the majority’s
conclusion that uncertainties about whether Yahoo! can tech-
nologically isolate the effects of the orders only to France-
based users compel us to withdraw the case from the district
court. Even assuming such uncertainties exist and are mate-
rial, the district court is fully capable of exercising its fact-
finding role to resolve them. But there is no uncertainty that
the mandate imposed on Yahoo! is also content based, and the
orders identify that content in terms that on their face are
overbroad and vague. They require Yahoo! to guess what has
to be censored on its Internet services here in the United
States, under threat of monetary sanction if it guesses wrong.
In that respect, the orders are facially unconstitutional.
By their terms, the orders reach “any other site or service
[in addition to the auction service] that may be construed as
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 475
constituting an apology for Nazism or a contesting of Nazi
crimes.” (Emphasis added.) As the district court rightly under-
stood, this is the crux of Yahoo!’s facial overbreadth and
vagueness concern:
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. More-
over, the French order requires Yahoo! not only to
render it impossible for French citizens to access the
proscribed content but also to interpret an imper-
missibly overbroad and vague definition of the con-
tent that is proscribed. . . . 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, compliance still would involve an imper-
missible restriction on speech. . . .
Yahoo II, 169 F. Supp. 2d at 1193-94 (emphasis added).
Surely the majority is not suggesting that Yahoo! has no
First Amendment protection from being sanctioned when it
could not guess or it guessed wrong as to what it was sup-
posed to censor on its domestic servers — even if limited to
France-based users. (And if not so limited, so much the
worse.) Yet the majority faults Yahoo! because — like
Yahoo! itself — we do not know whether its current activities
are permitted by the orders. (Op. at 437.) This is to apply First
Amendment precedents exactly backwards. As the majority
admits, “[t]he boundary line between what is permitted and
not permitted is somewhat uncertain for users in France.”
(Op. at 448.) Under such circumstances, we blame the law,
not the speaker.
476 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Instead, the majority effectively imposes an exhaustion
requirement on Yahoo! to litigate this issue in France, confirm
that it is still is not in compliance with the orders (just as it
was not on May 22 and November 20, 2000) and obtain a
“final” adverse judgment before the majority will consider
this case ripe. In doing so, the majority imposes a heightened
standard on a U.S. plaintiff seeking to vindicate its First
Amendment rights when that plaintiff is challenging a foreign
prior restraint. Principles of ripeness (or comity) do not
require this result. The extraordinary hurdles the majority
creates are inconsistent with our established jurisprudence
protecting this country’s tradition of free expression. See, e.g.,
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
755-56 (1988) (holding that a plaintiff need not have applied
and been denied a newspaper rack license before challenging
a city ordinance as an unconstitutional prior restraint on
speech). To say so is not to deny France’s interests in protect-
ing its own citizens from harmful speech, but only to recog-
nize that federal courts have the duty to adjudicate and uphold
the legitimate constitutional rights of litigants who have prop-
erly invoked our federal jurisdiction.
In correctly sustaining personal jurisdiction over the defen-
dants and in finding an Article III case or controversy, the
majority concedes the central dilemma Yahoo! faces as a
result of the French injunction. “[W]hile Yahoo! does not
independently wish to take steps to comply more fully with
the French court’s orders, it states that it fears that it may be
subject to a substantial (and increasing) fine if it does not.”
(Op. at 427.) Acknowledging the obvious chilling effect of
the injunction, the majority recognizes that “[e]ven if the
French court’s orders are not enforced against Yahoo!, the
very existence of those orders may be thought to cast a
shadow on the legality of Yahoo!’s current policy.” (Op. at
428-29.)
But unfortunately the majority then stops short, concluding
that the “level of harm [suffered by Yahoo!] is not sufficient
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 477
to overcome the factual uncertainty bearing on the legal ques-
tion presented and thereby to render this suit ripe.” (Op. at
447.) With respect, the majority creates its own factual
dilemma — and bad First Amendment precedent — in its
attempt to find daylight between its holdings on personal
jurisdiction and ripeness. We agree that the Calder “effects”
test, see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 803 (9th Cir. 2004) (citing Calder v. Jones, 465 U.S. 783
(1984)), need not be satisfied by the same degree of harm as
ripeness (Op. at 441), but the majority’s rationale for finding
the harm sufficient in one instance and deficient in the other
is seriously flawed.
By peremptorily terminating Yahoo!’s access to federal
court, the majority establishes a new and burdensome stan-
dard for vindicating First Amendment rights in the Internet
context, threatening the Internet’s vitality as a medium for
robust, open debate. It also bypasses the factfinding role of
the district court — failing to credit much of what the district
court found on the record as litigated below, and removing the
district court from the process of resolving the factual issues
the majority now finds so vital to Yahoo!’s First Amendment
claims. Accordingly, although we concur in that part of the
majority’s opinion upholding personal and Article III jurisdic-
tion, we respectfully dissent from its ultimate holding that this
case is not ripe for adjudication.
II. Prudential Ripeness
The majority invokes prudential ripeness because it finds
Yahoo!’s circumstances suffer from “prematurity and
abstractness” that preclude our reaching Yahoo!’s claim that
the French injunction on its face violates the First Amend-
ment. (Op. at 429-30.) As did the district court, we conclude
otherwise.
478 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
A. Fitness of the issues for judicial resolution
1. A “purely legal” question
The majority holds this case unfit for judicial resolution by
suggesting that it does not involve a “purely legal” question,
Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967),
but instead requires us to sort through factual uncertainties,
which ultimately make adjudication inappropriate. (Op. at
430.) Yet even if the majority were correct that Yahoo!’s case
suffers from a lack of factual development, it does not follow
that the suit is therefore rendered unripe. When a dispositive
fact is missing from the district court record, we usually
remand for further factfinding. We do not peremptorily throw
litigants out of court and expect them to petition a foreign
court for relief.
To begin with, this case fundamentally involves a straight-
forward legal question: whether the French injunction as
ordered against Yahoo! runs afoul of the First Amendment.
The answer calls for a legal application of free speech doc-
trine to final orders that on their face are vague and over-
broad. True, the defendants must take steps in the French
court to initiate actual enforcement, but Yahoo! is subject to
the orders and to a retrospective financial penalty for noncom-
pliance. The majority’s argument that we should give weight
to the label “interim” because it indicates that “the French
court contemplated that it might enter later orders” is a make-
weight. (Op. at 436.) A court may contemplate issuing subse-
quent orders whether or not a prior order on the subject is
called “interim” or “final.” We need not be distracted by the
label “interim,” because, as the district court found, “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.” Yahoo II, 169 F. Supp. 2d at 1190.
Cases involving far less definitive or targeted mandates —
not yet enforced against the complaining party — have been
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 479
treated as final actions ripe for adjudication. In Abbott Labo-
ratories, one of the majority’s lynchpin cases, drug manufac-
turers challenged the Food and Drug Commissioner’s
regulation requiring that their products’ labels show both a
drug’s generic and its brand name. The Supreme Court,
addressing the “purely legal” issue presented, held that the
regulation was a final agency action, even though it was a
statement of general applicability and violations of the new
rule could be enforced only by the Attorney General authoriz-
ing criminal and seizure actions. 387 U.S. at 151-52. The
Court held the case ripe for pre-enforcement review because
the Commissioner’s labeling order placed “petitioners in a
dilemma that it was the very purpose of the Declaratory Judg-
ment Act to ameliorate.” Id. at 152. The Court cited the dis-
trict court’s finding that petitioners either “ ‘must comply
[with the label changeovers] . . . or they must follow their
present course and risk prosecution’ ” and concluded that the
latter “course would risk serious criminal and civil penalties
for the unlawful distribution of ‘misbranded’ drugs.” Id. at
152-53. See also Frozen Food Express v. United States, 351
U.S. 40, 43-44 (1956) (holding justiciable a challenge to an
Interstate Commerce Commission rule because violations
could be punished by criminal sanctions and the rule itself
would cause companies to conform their behavior to the regu-
lation); cf. United States v. Storer Broadcasting Co., 351 U.S.
192, 198 (1956) (finding standing to challenge a Federal
Communications Commission rule limiting radio licenses
even though the broadcaster had not yet received an unfavor-
able decision).3
3
The majority’s citation of Adler v. Bd. of Educ., 342 U.S. 485 (1952),
as a “noted example” of a debate over ripeness in the context of speech
is inapposite. (Op. at 430.) Adler, a case affirming limits on the speech of
teachers in New York public schools during the post-World War II “Red
Scare,” not only concerns the constitutionally distinct situation of a state
government regulating the speech of its employees (as opposed to a court
being asked to enforce a speech-restrictive injunction against a corpora-
tion), but also predates important modern free speech precedents establish-
480 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
The final, targeted injunction before us presents the same
kind of purely legal issue — with Yahoo! confronting the
dilemma of whether or not to stand by its United States con-
stitutional rights or constrain its speech and that of its users
to avoid a French-imposed penalty. Legions of cases permit
First Amendment challenges to governmental actions or
decrees that on their face are vague, overbroad and threaten
to chill protected speech. Indeed, the sweeping injunction here
presents just such a paradigmatic case. See, e.g., Freedom to
Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th
Cir. 1996) (rejecting a ripeness defense to a facial attack on
blanket travel restrictions to Cuba under the First and Fifth
Amendments, even though the plaintiff group had never
applied for a license, because the case presented purely legal
questions); see also Forsyth County, Ga. v. Nationalist Move-
ment, 505 U.S. 123, 129-30 (1992) (addressing a facial First
Amendment challenge to a licensing scheme even though the
plaintiff had never applied for a permit, citing numerous First
Amendment cases involving facial claims); Steffel v. Thomp-
son, 415 U.S. 452, 459 (1974) (concluding that petitioner had
established an actual controversy based on his threatened
criminal trespass arrest by state police for distributing politi-
cal handbills and holding that he did not need to “first expose
himself to actual arrest or prosecution to be entitled to chal-
lenge a statute that he claims deters the exercise of his consti-
tutional rights”). Yahoo! seeks nothing more than for a United
ing the doctrine of facial invalidation. See, e.g., Lakewood, 486 U.S. at
755-56. Furthermore, Justice Frankfurter was the sole dissenter (and the
sole Justice) to question the suit’s ripeness; Justices Black and Douglas
were convinced the suit was ripe and that New York’s laws infringed upon
public school teachers’ First Amendment rights. See Adler, 342 U.S. at
496-511. Because Adler itself would certainly be reasoned, and likely
decided, differently today given cases such as Connick v. Myers, 461 U.S.
138 (1983), and Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which
recognized a government employee’s interest in commenting on matters
of public concern, Adler’s approach to ripeness is hardly illuminating even
within the narrow confines of government employee speech.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 481
States court to resolve its legal claim that the French court
injunction by its very nature — in whole or in part — threat-
ens Yahoo!’s protected speech. See NAACP, W. Region v.
City of Richmond, 743 F.2d 1346, 1352, 1358 (9th Cir. 1984)
(upholding standing to bring facial challenge to “substantially
overbroad” city parade ordinance).
2. Comity and the repugnance of unconstitutional
injunctions
We do not agree with the majority’s professed uncertainties
as to whether a California court, under principles of comity,
would be inclined to enforce a foreign court order that
infringes upon a U.S. corporation’s First Amendment rights.
The “repugnancy” standard the majority invokes is easily sat-
isfied here. California’s case law and its federal underpin-
nings tell us to honor foreign court judgments unless they
“prejudice the rights of United States citizens or violate
domestic public policy.” In re Stephanie M., 867 P.2d 706,
716 (Cal. 1994) (citing Hilton v. Guyot, 159 U.S. 113, 202-03
(1895); and Victrix S.S. Co. v. Salen Dry Cargo A.B., 825
F.2d 709, 713 (2d Cir. 1987)). The French orders on their face
— and by putting Yahoo! at risk of substantial penalties —
violate the First Amendment and are plainly contrary to one
of America’s, and by extension California’s, most cherished
public policies.4 In short, they constitute a foreign judgment
that is “repugnant to public policy.” (Op. at 436.)
4
As the majority correctly notes, it is California’s public policy (rather
than U.S. public policy) that is relevant to a comity analysis in a federal
diversity case. (Op. at 431.) However, although Yahoo! focused its ener-
gies on alleging violations of the federal First Amendment rather than vio-
lations of the analogous provision of the California Constitution, see art.
I, § 2(a), it is certainly not California’s public policy to countenance viola-
tions of the United States Constitution. Indeed, the California Supreme
Court has held California’s free speech clause to be more expansive than
the First Amendment. See Golden Gateway Ctr. v. Golden Gateway Ten-
ants Ass’n, 29 P.3d 797, 801 (Cal. 2001) (“Unlike the United States Con-
stitution, which couches the right to free speech as a limit on
482 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
The district court considered the role of comity but ulti-
mately found that it was outweighed by U.S. constitutional
freedoms. “Although France has the sovereign right to regu-
late 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.” Yahoo II, 169 F.
Supp. 2d at 1192. This finding does not mean that every for-
eign court judgment implicating speech in the United States
would be deemed repugnant to American public policy and
therefore unenforceable, but this particular judgment is so
vague and overbroad that it fails the repugnancy analysis. Sig-
nificantly, the defendants do not argue to us that the French
injunction comports with the First Amendment. Indeed, they
did not even appeal the district court’s ultimate finding that
the orders are unconstitutional.
The majority goes to great lengths to avoid labeling a prior
restraint on speech — overbroad and vague by its terms — as
“repugnant to public policy” and is content to leave in place
foreign court orders that so obviously violate the First
Amendment. (Op. at 436.) In reaching this result, the major-
ity has succumbed to an error of logic. It has conflated foreign
orders that are somewhat inconsistent with U.S. law with
those that violate U.S. law. It is one thing for U.S. courts to
pass on foreign attorney’s fees larger than what domestic laws
would award, see In re Hashim, 213 F.3d 1169, 1172 (9th Cir.
2000), or to recognize a judgment pursuant to a foreign statute
congressional power, the California Constitution gives ‘[e]very person’ an
affirmative right to free speech. Accordingly, we have held that our free
speech clause is ‘more definitive and inclusive than the First Amend-
ment.’ ”) (internal citations omitted). See also Sarl Louis Feraud Int’l v.
Viewfinder Inc., 2005 U.S. Dist. LEXIS 22242, at *19 (S.D.N.Y. 2005)
(“American courts have recognized that foreign judgments that run afoul
of First Amendment values are inconsistent with our notions of what is fair
and just, and conflict with the strong public policy of our State [New
York].”) (emphasis in original).”
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 483
of limitations longer than that of its domestic analogue, see
Milhoux v. Linder, 902 P.2d 856, 861-62 (Colo. Ct. App.
1995). It is quite another to imply, as the majority does, that
a violation of the U.S. Constitution is no different from any
other “[i]nconsistency with American law,” which the major-
ity claims “is not necessarily enough to prevent recognition
and enforcement of a foreign judgment in the United States.”
(Op. at 435-36.)
Neither In re Hashim nor Milhoux implicated federal or
state constitutional rights. Indeed, both cases held that the for-
eign judgments being challenged were not repugnant to the
public policy of either Arizona or Colorado, respectively.
Where a foreign judgment was held to be repugnant to Cali-
fornia’s public policy, the repugnancy was based on the viola-
tion of California’s Uniform Child Custody Jurisdiction Act
that would have resulted had the foreign order been enforced.
See In re Stephanie M., 867 P.2d at 716. The majority pro-
vides no explanation why the California courts would refuse
to enforce a foreign judgment that violated a state statute, yet
be willing to enforce a foreign judgment that violates the fed-
eral (and perhaps the state) Constitution.
The majority’s dictum implying that foreign judgments that
would be unconstitutional if entered by a U.S. court may
nonetheless be enforceable is troubling. Under the principles
articulated today, a foreign party can use a foreign court
decree to censor free speech here in the United States on any
range of subjects it finds objectionable — religion, democ-
racy, gender equality — in the name of enforcing its own
country’s laws. The good intentions of even sympathetic for-
eign parties such as LICRA and UEJF in this case are not the
standard. How could a California court honor the French
defendants’ good intentions in proscribing pro-Nazi speech
when the City of St. Paul’s good intentions did not cure its
anti-hate speech code of viewpoint discrimination and consti-
tutional infirmity even when directed at cross-burnings? See
R. A. V. v. City of St. Paul, 505 U.S. 377, 392 (1992) (“St.
484 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Paul has no such authority to license one side of a debate to
fight freestyle, while requiring the other to follow Marquis of
Queensberry rules.”); see also Collin v. Smith, 578 F.2d 1197,
1201 (7th Cir.), cert. denied, 439 U.S. 916 (1978) (striking
down on First Amendment grounds several Skokie, Illinois
ordinances prohibiting the National Socialist Party of Amer-
ica from marching through the town: “First Amendment rights
are truly precious and fundamental to our national life . . . .
It is, after all, in part the fact that our constitutional system
protects minorities unpopular at a particular time or place
from governmental harassment and intimidation, that distin-
guishes life in this country from life under the Third Reich.”)
People in the United States and France should abhor anti-
Semitism and the horrors perpetrated by the Nazi Party.
Nonetheless, our constitutional law differs from French juris-
prudence in our approach to hate speech. Our law reflects
deeply held political beliefs about freedom of expression in
this country. Borrowing Justice Brandeis’s formulation, “the
remedy to be applied [to expose falsehood and fallacies] is
more speech, not enforced silence.” Whitney v. California,
274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
3. The alleged lack of factual development
Even accepting the majority’s assumption that this case
does not turn on purely legal issues, the concerns the majority
invokes as reasons to withhold judicial resolution are either
unconvincing or at most reasons for remand. For instance, the
majority seems to call into question whether the French
court’s injunction is sufficiently final because the orders are
labeled “interim,” notwithstanding their unconditional and
mandatory language. (Op. at 436.) In considering whether the
injunction survives U.S. laws, we must take the orders issued
by the French court as final actions, reflecting that court’s
view of Yahoo!’s conduct and current obligations under
French law. There is no reason for us to assume that the
French court intends something different from the words of its
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 485
own mandatory orders — just as we would not assume that
a U.S. federal or state court would not stand by an injunctive
order it has issued.
Moreover, by insisting on withholding judicial resolution,
the majority disregards the district court’s factual determina-
tions, and its role in resolving factual disputes. First, with
respect to the content at issue, the majority minimizes the dis-
trict court findings that Yahoo! hosts content violating the
specific terms of the orders. As the district court found,
Yahoo! “continues to offer at least some Third Reich memo-
rabilia as well as Mein Kampf on its auction site and permits
access to numerous web pages with Nazi-related and anti-
Semitic content.” Yahoo II, 169 F. Supp. 2d at 1189. The dis-
trict court took judicial notice from its own search of the site
(in October 2001) that using the keyword “Nazi” called up 69
Nazi-related items posted for sale, such as stamps, coins and
a copy of Mein Kampf. Id. at 1185 n.3. The district court also
conducted keyword searches on Yahoo!’s general
website, finding thousands of sites referring to
“Jewish conspiracy,” promoting modern-day Nazism or sug-
gesting the Holocaust did not happen. Id. at n.4.5
Clouding the majority’s view of the facts are the defen-
dants’ assertions before us and in the district court that they
“have no present intention of taking legal action against
Yahoo! in the United States” because they consider Yahoo! to
be in “substantial compliance with the French order.” Yahoo
II, 169 F. Supp. 2d at 1188. But the French court has never
made such a determination of Yahoo!’s alleged compliance.
Instead, the majority speculates that because Yahoo! France
5
The French defendants initially objected to a far broader array of con-
tent than the limited category of items Yahoo! now excludes under its
revised auction site policy. UEJF’s plea for relief asked the French court
to mandate that Yahoo! remove from all browser directories the index
heading entitled “negationists” and any link “bringing together, equating
or presenting directly or indirectly as equivalent sites categorised under
the heading ‘Holocaust’ and those indexed as negationist.”
486 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
has “complied [in France] in large measure with the spirit and
letter” of the May 22 French order, “compliance ‘in large
measure’ by Yahoo! is very likely to be satisfactory to the
French court.” (Op. at 436-37.) But Yahoo! is not Yahoo!
France, and the French court did not explain the factual basis
for its finding of compliance.
Nor have the defendants ever taken any steps to stipulate in
a legal forum that Yahoo! is in compliance with the injunc-
tion. Thus the district court properly gave no weight to the
defendants’ professions of Yahoo!’s substantial compliance.
The court pointedly observed that the defendants “have not
taken steps available to them under French law to seek with-
drawal of the orders or to petition the French court to absolve
Yahoo! from any penalty,” Yahoo II, 169 F. Supp. 2d at 1188,
and they gave no indication they would pursue such measures
when pressed on the subject. Id. at 1189 n.7.
During oral argument before us, defense counsel conceded
that the defendants did not want to foreclose their options by
agreeing to such a stipulation. As the majority recognizes
(Op. at 416), should Yahoo! alter its content in a way that the
defendants disapprove of, they want the judicial authority to
seek relief and mandate Yahoo!’s compliance. (Oral Arg.
1:02.) The majority in large part hinges its analysis on the
defendants’ litigation position of saying that they have no
problem now with Yahoo!’s conduct but declining to take any
steps to eliminate the speech injunction or accruing financial
penalties. See Abbott Laboratories, 387 U.S. at 154 (conclud-
ing that the “subsequent representation of the Department of
Justice” that it was likely to impose only civil sanctions for
violations, thus mitigating the harm to the plaintiff, “should
not suffice to defeat” the claim); see also Culinary Workers
Union, Local 226 v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.
1999) (disregarding attorney general’s claim that she lacked
authority to carry out specific threat of prosecution in holding
that a real controversy existed for purposes of Article III).
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 487
The majority claims that “we do not know whether the
French court would hold that Yahoo! is now violating its two
interim orders.” (Op at 436.) Ironically, the majority thereby
highlights the very threat Yahoo! faces. Uncertainty about
whether the sword of Damocles might fall is precisely the rea-
son Yahoo! seeks a determination of its First Amendment
rights in federal court. See Metro. Wash. Airports Auth. v. Cit-
izens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265
n.13 (1991); Chang v. United States, 327 F.3d 911, 921 (9th
Cir. 2003) (recognizing that this court does not require “Dam-
ocles’s sword to fall” before it will adjudicate a case).
In sum, the uncertainties Yahoo! faces are not reasons to
delay adjudication. Rather, they provide a compelling basis
for a federal court to hear Yahoo!’s First Amendment chal-
lenge at this time, as the district court did.
The fact that 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 Declara-
tory Judgment Act was designed to relieve potential
defendants from the Damoclean threat of impending
litigation which a harassing adversary might bran-
dish, while initiating suit at his leisure or never.
Yahoo II, 169 F. Supp. 2d at 1189 (emphasis added).6 Instead,
6
Yahoo!’s circumstances are readily distinguishable from those found
not ripe in Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). There,
the principal First Amendment claims the party leveled against Ohio’s
election code were mooted by legislative amendments, leaving only a sub-
sidiary challenge to a loyalty oath. The Court found this claim “singularly
sparse in its factual allegations,” with no suggestion that the Party had
ever refused or would refuse in the future to sign the oath, or that it had
suffered or would suffer any injury from the existence of the oath require-
ment. Id. at 586.
Similarly, in American-Arab Anti-Discrimination Committee v. Thorn-
burgh, 970 F.2d 501 (9th Cir. 1992), members of the Popular Front for the
488 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
the majority turns Yahoo!’s uncertainties against it — relegat-
ing it to the French courts for clarification and absolution.
B. Substantial hardship of withholding judicial
consideration
Even more perplexing is the majority’s conclusion that
Yahoo! does not face “substantial hardship” because of our
unwillingness to adjudicate its First Amendment claim. The
majority attempts to avoid the obvious chilling effect of an
overbroad and vague injunction in two creative and troubling
ways. First, the majority opines “with some confidence” that
Yahoo! need not fear the enforcement of a fine because “it is
exceedingly unlikely that the sword [of Damocles] will ever
fall” (Op. at 441) — another speculative assessment, we sub-
mit. It also faults Yahoo! for failing to proffer examples of
“anything that it is now not doing but would do if permitted
by the orders” (Op. at 445) and thereby imposes a new, higher
burden on a First Amendment plaintiff to establish a chilling
effect.
Liberation of Palestine (PFLP) contended that anti-Communist provisions
of the McCarran-Walter Act unconstitutionally put them at risk of deporta-
tion for engaging in protected First Amendment activities without the
opportunity for a fair and impartial hearing before the INS. We held that
the plaintiffs were sufficiently at risk of government prosecution to give
them standing; but we found their claims not ripe because there was “a
sketchy record . . . with many unknown facts,” such as whether the plain-
tiffs were actually members of the PFLP or what acts the government
alleged they had committed, and we emphasized that the INS had not yet
interpreted or applied the challenged provisions. Id. at 510-11.
In marked contrast to these cases, here the French injunction remains
extant and as broadly worded as ever; the defendants have refused to stip-
ulate to Yahoo!’s compliance; and the district court has found actual non-
compliance with specific terms as well as an overall risk of
noncompliance with fatally undefined terms — thereby subjecting Yahoo!
to the risk of substantial monetary fines and the chilling effect of the
vague and overbroad injunction. Additionally, there is no court or agency
— other than this federal court — that can address Yahoo!’s United States
constitutional claim.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 489
1. The French orders chill speech
First, the majority overlooks Yahoo!’s claim that it faces
actual abridgment of its current speech — not just a chilling
effect on its ever-changing Web content. As the majority does
acknowledge, Yahoo! hosts content on its auction site, includ-
ing the sale of Mein Kampf, that is specifically prohibited by
the terms of the injunction. The district court’s findings of
impermissible material still present on the auction site demon-
strate that Yahoo! is currently engaged in speech that the
French orders — by their terms — compel it to foreclose to
some users or forgo entirely. Yahoo! opts not to accede to the
injunction, thereby incurring daily accumulating fines should
its current or future behavior displease LICRA or UEJF. Cer-
tainly Yahoo! should not have to abstain from conduct it
believes is constitutionally protected solely for us to find its
claim ripe. Cf. City of Auburn, 260 F.3d at 1173 (9th Cir.
2001) (noting that finding case unripe would require party to
comply with “costly and cumbersome” franchise require-
ments, only for the party to then raise “exactly the same argu-
ment that it makes here”).
More importantly, the majority largely ignores the broad
and diffuse scope of the French injunction — which extends
well beyond Yahoo!’s auction site and clearly raises the ques-
tion whether it is substantively possible for Yahoo! to comply.
Apart from entirely obvious cases, how can one determine
with any certainty whether something “may be construed as
constituting an apology for Nazism or a contesting of Nazi
crimes”? The majority makes the rather startling assertion that
“[b]efore the district court can engage in useful factfinding, it
must know whether (or to what extent) Yahoo! has already
sufficiently complied with the French court’s interim orders.”
(Op. at 449.) Of course, this is precisely the crux of Yahoo!’s
predicament — and highlights the vagueness and overbreadth
of the orders. We know the actions Yahoo! has taken and not
taken with respect to Nazi paraphernalia appearing on its site.
The only reason we cannot determine “whether (or to what
490 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
extent) Yahoo! has already sufficiently complied” with the
French orders is because we cannot assess the scope of the
orders themselves.7 It is this very kind of uncertainty that epit-
omizes a purely legal question of facial infringement of First
Amendment rights and the harms routinely associated with
such an infringement.
In plain terms, if no one but the French court can decipher
the meaning of its injunction aimed at Yahoo!’s speech, how
can Yahoo! comply? Yahoo! has to know what content it has
to screen from France-based users. The French orders contain
no meaningful instructions for Yahoo! to winnow permitted
speech from unpermitted speech. It is the absence of a dis-
cernible line between the permitted and the unpermitted that
makes the orders facially unconstitutional. As the district
court concluded, and as discussed previously, “compliance
would still involve an impermissible restriction on speech”
because it would require Yahoo! to interpret the vague and
overbroad injunction as to what content is prohibited and
which users should be denied access, on pain of substantial
penalty should it guess wrong. See Yahoo II, 169 F. Supp. 2d
at 1193-94.
Ultimately, the majority’s parsimonious treatment of the
free speech issues here culminates with its reducing Yahoo!’s
argument to an interest in merely “allowing access by users
in France” to Nazi materials. (Op. at 446.) Yahoo! is allegedly
seeking “a First Amendment right to violate French criminal
law and to facilitate the violation of French criminal law by
others.”8 (Op. at 446.) Notably, even the defendants have not
7
It is telling that even the Internet experts relied upon by the French
court were unable to recommend a “suitable and effective technical solu-
tion” for Yahoo! to screen out France-based users from any of its sites or
services, other than the auction site, that may be construed as constituting
an apology for Nazism or a contesting of Nazi crimes because “[n]o griev-
ance against any . . . Yahoo! sites or services [other than the auction site]
is formulated with sufficient precision.”
8
According to the majority, “the French court’s interim orders do not by
their terms require Yahoo! to restrict access by Internet users in the United
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 491
construed Yahoo!’s First Amendment argument in such
crabbed terms.
But suppose Yahoo! really were concerned only with not
having to act in the United States as an enforcer of France’s
restrictions on Internet access by France-based users. That
would not make the constitutional implications of the effects
on Yahoo!’s United States operations go away. Yahoo! can-
not merely act in France to restrict access by users located in
France; the French orders require Yahoo! to make changes to
its servers and protocols in the United States. That Yahoo!
seeks First Amendment protection from having to compro-
mise its domestic operations to comply with a foreign injunc-
tion does not translate into its seeking the right simply to
violate French law. This case is not about the extra-territorial
application of the First Amendment; it is about the extra-
territorial application of France’s anti-Holocaust denial
speech codes and the extent to which compliance may
infringe Yahoo!’s rights of free speech here in the United
States.
The majority, however, views the French orders as con-
cerning “speech accessible solely by those outside the United
States.” (Op. at 440.) Additionally, it accepts that Yahoo! can
screen out access to any prohibited materials by “most” —
States.” (Op. at 446.) This is not Yahoo!’s position. The company has
asserted that complying with the French orders would compel it to remove
prohibited material from its United States-based Internet services and
reengineer its servers, also located in the United States, to identify both
France-based users and prohibited material that may be posted in the
future; therefore, it may not be possible to comply with the French orders
without rendering certain content inaccessible to all users, including those
in the United States and not just those in France. Nor does Yahoo! appear
to be interested in asserting its constitutional rights solely for the sake of
violating French law. To comply with the orders as they affect the compa-
ny’s French services, Yahoo! now removes any posted material it becomes
aware of on its site that would violate French law.
492 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
estimated to be 70-90% — of France-based users. (Op. at
438.) This reasoning is flawed in several respects.
First, Yahoo! does not target specific users by initiating
content directed solely at them. Rather, anyone who logs on
to , including users in France, gains access to
material on Yahoo!’s message boards, search engines, auction
sites and other services. It is the accessing of vaguely and
overbroadly described content — by anyone in French terri-
tory — that the orders prohibit and hold Yahoo! responsible
for preventing. Thus, even if one could readily and reliably
limit the universe of Internet users whose access must be cen-
sored — an assumption the record before us does not justify
— Yahoo! would still be at a loss to define the universe of
content it must censor.
Second, the factual question of whether it is technologically
feasible for Yahoo! to monitor the postings and filter the mil-
lions of users accessing the website — assum-
ing such technology actually bears on Yahoo!’s First
Amendment claims — is an unresolved issue that should be
returned to the district court. The parties have not addressed
the specifics of technical feasibility issue on this appeal, nor
the validity of the experts’ report. Thus the 70% and 90% fig-
ures the majority adopts from that report depend solely on the
majority’s reading of a translated technical and ambiguous
document, the scientific merits of which have not been
addressed even in the district court. LICRA and UEJF did
raise the issue of feasibility below, but the district court
denied them discovery regarding technological feasibility of
screening France-based users because it deemed the issue
immaterial to the court’s First Amendment ruling. See Yahoo
II, 169 F. Supp. 2d at 1194. The defendants have not appealed
either the district court’s First Amendment decision or its dis-
covery ruling. To the extent that the technological feasibility
issue has been argued at all on appeal, Yahoo! has said that
it “could not monitor the content of these millions of postings
and listings to its U.S.-based Internet services” and that it
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 493
essentially faces a binary choice between self-censorship and
paying the French fines.
On the record before us — lacking expert testimony and
cross-examination, much less district court findings of fact —
we do not believe we as appellate judges can or should accept
as a given that Yahoo! can readily and reliably identify 70%
of the users it must censor, “irrespective of whether a Yahoo!
user sought access to an auction site, or to a site denying the
existence of the Holocaust or constituting an apology for
Nazism.” (Op. at 414-15.)
This is particularly true given that the experts’ report is
replete with hearsay, technological assumptions and disclaim-
ers. Most importantly, the experts explicitly limited their anal-
ysis to how an Internet “surfer” in France could be prevented
from accessing prohibited content only on Yahoo!’s auction
site, not all such content that might find its way onto
generally. As the experts emphasized — echo-
ing Yahoo!’s own concern about the imprecision of the
orders:
The decisions of the [French] court and the demands
made are precisely directed against the auctions site.
No grievance against any other Yahoo! sites or ser-
vices is formulated with sufficient precision to
enable the consultants to propose suitable and effec-
tive technical solutions. In these circumstances, the
consultants will therefore confine their answers to
the matter of the auctions site. . . .9
9
Even as to screening content on the auction site, the experts acknowl-
edged that it was not possible for Yahoo! to “exclude a priori items which
have not been described by their owner as being of Nazi origin or belong-
ing to the Nazi era.” How then would Yahoo! keep the prohibited material
from being accessed? The report suggested that a more “radical solution”
might be warranted, essentially prohibiting any search containing the word
“Nazi” by an identified French user. How such Nazi paraphernalia which
has not been described by its owners with the label “Nazi” could be
screened remains a mystery.
494 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
(Emphasis added.) The experts also emphasized, “[t]he mea-
sures to be taken depend upon the particular case in point.
They cannot be generalised to all sites and services on the
Internet. In this case, the site in question is
pages.auctions.yahoo.com.” (Emphasis added.)
Of course, the French orders do not solely prohibit content
on Yahoo!’s auction site but, by their terms, encompass con-
tent on all of Yahoo!’s services. Yahoo!’s services extend far
beyond its auction site and include its search engine, e-mail,
classified listings, personal Web pages, shopping, message
boards, chat rooms and news stories.
The majority — like the French court itself — seems to
credit two of the three experts who estimated as many as 90%
of France-based users of Yahoo’s auction site could be identi-
fied and screened. The methodology underlying this estimate,
however, further illustrates the uncertainty of predicting Inter-
net identification and screening, compounded by the vague
and overbroad mandate of the court orders. Assuming that
“70% of the IP addresses assigned to French surfers can be
matched with certainty to a service provider located in France,
and can be filtered,” all three experts agreed that “no filtering
method is capable of identifying all French surfers or surfers
connecting from French territory.”10 To reach 90%, two
experts relied on a voluntary “sworn declaration of nationali-
ty” by a French surfer that “could be made when a first con-
nection is made to a disputed site, in this case the Yahoo
auctions site . . . .” (Emphasis added.)11 They suggested ask-
10
Significantly, the experts were at pains to caution that even the 70%
figure based on IP addresses has a short shelf life: “[t]he consultants stress
that there is no evidence to suggest that the same will apply in the future.
Encapsulation is becoming more widespread, service and access providers
are becoming more international, and surfers are increasingly intent on
protecting their rights to privacy.”
11
Notably, the French orders compel Yahoo! to prohibit access by any
users in French territory, not just French citizens. Thus a declaration of
“nationality” does not seem adequate in any event.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 495
ing for the declaration of nationality at “the home page of the
auctions site” or “in the context of a search for Nazi objects
if the word ‘Nazi’ is included in the user’s request . . . .” In
short, the experts’ 90% figure depends on the ability to link
users to a specific Yahoo! site and to specific content on that
site.
The third expert, Vinton Cerf, a 1997 recipient of the
United States National Medal of Technology for co-designing
the architecture of the Internet,12 disavowed relying on users’
self-identification at all, concluding that “it does not appear to
be very feasible to rely on discovering the geographic loca-
tions of users for purposes of imposing filtering of the kind
described in the [French] Court Order.”
Given the orders’ broad language, none of the experts could
devise a system for screening out France-based users that
went beyond the auction site. Therefore, even if were true that
Yahoo! can identify up to 70% of all of its France-based
users, irrespective of the site or service they are accessing, the
evidence is clear that geographical identification alone would
not enable Yahoo! to prohibit such users from accessing
100% of the content proscribed by the French orders —
indeed, Yahoo! could not even come close on that side of the
compliance equation.
There are other serious questions about the experts’ report
that should be part of an evidentiary hearing in the district
court. For example, the 70% IP-address screening figure was
derived in part from information provided by a French Inter-
net association regarding how many of its access providers
can identify whether their users are located in France. Such
anecdotal data do not demonstrate conclusively that Yahoo!
itself has the capability to identify the location of its users.
12
See Technology Administration, Department of Commerce, The
National Medal of Technology Recipients, at http://www.technology.gov/
Medal/Recipients.htm.
496 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Indeed, the method the experts proposed for Yahoo! to iden-
tify users is imprecise. The experts noted that for a number of
reasons the “real world” location of a user may not be readily
identifiable. For instance, a French citizen who uses AOL for
Internet service may be shown as having an IP address from
Virginia, where AOL’s network is located. In other instances,
users may choose to mask the geographical origin of their
Internet address.
Thus we cannot assume, as does the majority, that this case
is about Yahoo! restricting access only by French users, 70-
90% of whom are readily identifiable regardless of what con-
tent they may seek out on . The validity of these
percentage assumptions not only drives the majority’s defini-
tion of whose access is restricted, but also its apparent will-
ingness to assume that even if Yahoo! can identify only 70%
of the prohibited universe of users, that would be good
enough. If technical feasibility is to be the lynchpin on which
Yahoo!’s day in federal court depends, then let the parties
return to the district court for proper factfinding. Instead, the
majority preempts the district court’s factfinding function,
interpreting the French experts’ report as conclusive evidence
in order to deny Yahoo! access to the court altogether.
Lastly, there is the issue of cost of compliance. There can
be no dispute that the very nature of the French orders puts
Yahoo! to the choice of incurring the costs to develop and
implement mechanisms to filter out individual users based on
location or removing content from its service altogether. This
type of immediate financial burden clearly suffices to make a
case ripe for adjudication, even if we accept the majority’s
proposition that the threat of enforcement is remote. See Pac.
Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 461 U.S. 190, 197-98 (1983) (holding ripe for
review a preemption challenge to a regulation imposing a
moratorium on new nuclear plants because petitioners would
face substantial financial hardship if they built plants while
hoping the law would be struck down); City of Auburn v.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 497
Qwest Corp., 260 F.3d 1160, 1173 (9th Cir. 2001) (noting that
finding case unripe would require party to comply with
“costly and cumbersome” franchise requirements).13
2. The enforceability of foreign penal judgments
Recognizing that the risk of a large monetary penalty must
inevitably weigh heavily in Yahoo!’s assessment of its
options, the majority tries to neutralize the risk — creating a
protective shield by invoking the doctrine that United States
courts will not enforce the penal judgments of other countries.
It thus assures Yahoo! that “even if the French court were to
impose a monetary penalty against Yahoo!, it is exceedingly
unlikely that any court in California — or indeed elsewhere
in the United States — would enforce it” because it is a penal
judgment. (Op. at 442.)
It is true as Justice Marshall observed that “[t]he courts of
no country execute the penal laws of another,” The Antelope,
23 U.S. (10 Wheat.) 66, 123 (1825). But that begs the ques-
tion whether the French injunction itself or the accruing fines
are truly penal. Although we respect the majority’s scholar-
ship, this issue has not been the focus of the parties’ briefs or
arguments, and thus we cannot share the majority’s level of
confidence that its dictum is sufficiently accurate — or bind-
ing — that we should remove the risk of a substantial, retroac-
13
The mere possibility of future fines can have very real financial conse-
quences for a publicly held corporation like Yahoo!. To the extent it is
material to a corporation’s financial condition, such companies are
required to disclose contingent liabilities in Form 10-Q and 10-K state-
ments filed with the Securities and Exchange Commission. See Securities
Exchange Act of 1934, §§ 10(b), 15(d), 15 U.S.C. §§ 78j(b), 78o(d); 17
C.F.R. §§ 240.10b-5, 240.12b-20; see also Financial Accounting Stan-
dards Board Statement of Financial Standards No. 5, available at http://
www.fasb.org/pdf/fas5.pdf. Such filings may adversely affect the credit
ratings and hence the valuation of shares of such companies. In another
context, we have held that financial impacts on a business resulting from
legal uncertainty support a finding that a case is ripe. See Chang v. United
States, 327 F.3d 911, 922 (9th Cir. 2003).
498 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
tive monetary penalty from the First Amendment or ripeness
analysis. As with the French defendants’ assurances that they
consider Yahoo! currently in substantial compliance, absent a
binding court order actually freeing Yahoo! from the enforce-
ment of the French orders, Yahoo! remains at serious risk if
it fails to conform its web content to the dictates of those
orders.
“The test whether a law is penal, in the strict and primary
sense, is whether the wrong sought to be redressed is a wrong
to the public, or a wrong to the individual . . . .” Huntington
v. Atrill, 146 U.S. 657, 668 (1892). The Court warned against
the “danger of being misled by the different shades of mean-
ing allowed to the word ‘penal’ in our language.” Id. at 666.14
Determining whether a sanction is penal or civil in nature is
not always a simple task. Cf. F.J. Hanshaw Enters., Inc. v.
Emerald River Dev., Inc., 244 F.3d 1128, 1137-38 (9th Cir.
2001) (establishing procedural protections due a party based
on whether sanctions were criminal or civil in nature).
Although LICRA and UEJF’s substantive claims against
Yahoo! in French court depended in part upon Yahoo!’s vio-
lations of French criminal law,15 the record suggests that the
14
The Supreme Court’s warning in Huntington has even greater salience
when we are attempting to determine “the different shades of meaning
allowed to the word ‘penal’ ” in a language other than our own. (Op. at
443.)
15
LICRA and UEJF’s claims are based in part on a French law that
criminalizes the public wearing or display of the uniforms, insignias and
emblems of any organization declared criminal by the post-World War II
International (Nuremberg) Military Tribunal (e.g., the Nazi Party). See C.
Pén. R645-1. One of the most serious penalties for violation of this provi-
sion of the penal code is a fine. See id. Their claims also appear to rely
on the French Law of July 29, 1881 (Law on Freedom of the Press)
(2004), which, among other things, criminalizes Holocaust denial, see art.
24 bis, and the incitement of discrimination, hatred or violence on the
basis of belonging to a particular ethnic, national, racial group, see art. 24,
¶ 6. Both crimes carry a penalty of one year imprisonment or a fine of
45,000 Euros or both. See id.
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 499
French lawsuits were civil rather than criminal and, more
importantly, that the French orders primarily sought to redress
a wrong to LICRA and UEJF rather than a wrong to the
French public. Of course, we agree with the majority that “the
label ‘civil’ does not strip a remedy of its penal nature.” (Op.
at 444.) However, that still begs the question whether or not
the French accruing fines were penal. On this point, the
majority asserts that there is some language in the November
20 order that supports the characterization of the fines as
penal and that in any event the fines are potentially much
larger than the nominal damages awarded to UEJF and there-
fore the “award of one Franc [to UEJF] cannot render the
orders primarily remedial rather than punitive in nature.” (Op.
at 445.) The majority cites no authority for the novel arithme-
tic balancing test it proposes to distinguish penal from non-
penal orders, and although we admit there is some language
in the orders that supports holding the French orders punitive,
there is also significant language that supports the conclusion
that the orders sought to redress a wrong done to LICRA and
UEJF. The proper test for determining whether the French
orders are penal is a purposive one, see Huntington, 146 U.S.
at 668, and based on the record before us, we do not share the
majority’s certainty that the orders are undoubtedly penal in
nature.
French law gives standing to public interest, non-
governmental organizations dedicated to defending the inter-
ests of members of certain victimized groups, including vic-
tims of the Holocaust (déportés), to initiate enumerated types
of civil actions (but not criminal prosecutions) on behalf of
such victims. See, e.g., C. Pr. Pén. arts. 2-4 & 2-5; Law of
July 29, 1881 (Law on Freedom of the Press) (2004), art. 48-
2. Yahoo!’s challenge to UEJF’s standing under Article 48-2
of the French Law on Freedom of the Press and the French
court’s subsequent finding that LICRA and UEJF “are dedi-
cated to combating all forms of promotion of Nazism in
France” suggest that the French trial was a civil proceeding
under one of the specialized French standing statutes. This
500 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
conclusion is further supported by the French court’s reliance
on Article 809 of the New Code of Civil Procedure for its
authority to issue orders.
Furthermore, the award of damages to UEJF and other
relief “by way of restitution” strongly suggests that the French
court orders were predominantly civil and remedial rather
than penal.16 The court based its award of damages and other
restitution in its May 22 decision on a finding that the exhibi-
tion for sale of Nazi objects “has caused damage to be suf-
fered by LICRA and UEJF.” The French court reiterated this
finding of direct harm in its November 20 decision: “this dis-
play [of Nazi objects] clearly causes damage in France to the
plaintiff associations who are justified in demanding the ces-
sation and reparation thereof.” In this context, the additional
relief afforded to the French plaintiffs — an injunction order-
ing Yahoo! to cease its harmful activity in France — appears
to be merely an additional remedy in a civil suit.
As with the French injunction, the accruing fines are simi-
larly more likely civil than penal in nature. The most natural
reading of the French court’s rationale for imposing the accru-
ing fines is that such fines were meant to coerce Yahoo! into
compliance with the substance of the French injunction.
Rather than assessing the fines retroactively as a court would
do when redressing the public wrong Yahoo! had allegedly
already committed, the French court made the fines entirely
conditional on Yahoo!’s future behavior beginning three
months after the date of the second French order.
The U.S. analogue for such a regime of per diem fines is
civil contempt. See Sarl Louis Feraud Int’l v. Viewfinder Inc.,
16
The French court ordered payment by Yahoo! (jointly and severally
with Yahoo! France) of provisional damages of 1 Franc to UEJF. As a
means of effecting restitution for the harm suffered, the French court also
ordered Yahoo! to pay for the publication of one of the French decisions
in “five daily or weekly publications at the choice of [UEJF].”
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 501
2005 U.S. Dist. LEXIS 22242, at *2, *7 (S.D.N.Y. 2005)
(characterizing a French court’s judgments and a “fine (‘as-
treinte’) of 50,000 francs per day for each day that View-
finder failed to comply with each judgment” as “an injunction
backed by coercive penalties analogous to a civil contempt
fine under American law”). “In contrast [to criminal con-
tempt], civil contempt sanctions, or those penalties designed
to compel future compliance with a court order, are consid-
ered to be coercive and avoidable through obedience.” Int’l
Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827
(1994). See also 17 C.J.S. Contempt § 64 (2005)
(“[C]ontempt proceedings brought to vindicate the dignity
and authority of the court may be characterized as criminal in
nature, whereas those brought to preserve and enforce the
rights of private parties are remedial and civil in character.”).
Courts have the power to order either imprisonment or the
payment of fines when holding a party in civil contempt: “A
close analogy to coercive imprisonment is a per diem fine
imposed for each day a contemnor fails to comply with an
affirmative court order. Like civil imprisonment, such fines
exert a constant coercive pressure.” Bagwell, 512 U.S. at 829.
See also People v. Gonzalez, 910 P.2d 1366, 1373 (Cal. 1996).17
17
Admittedly, the characterization of the fines as coercive yet non-penal
may depend on whether Yahoo! “is afforded an opportunity to purge” its
liability to pay the fines. Bagwell, 512 U.S. at 829. Alternatively, the fines
may be compensatory and therefore non-penal if they are payable to
LICRA and UEJF “for losses sustained” rather than to the French govern-
ment. See id. The majority claims that the “penalties are payable to the
government and not designed to compensate the French student groups for
losses suffered.” (Op. at 444.) However, nothing in the record indicates to
whom the fines are payable. Furthermore, the majority fails to acknowl-
edge the possibility, indeed the probability, that the fines were not
designed to punish Yahoo! for its past behavior, but rather to prevent
future harm to LICRA and UEJF. Coercive per diem fines need not be
“designed to compensate [plaintiffs] for losses suffered” (Op. at 444), in
order to be non-penal, so long as their purpose is to “preserve and enforce
the rights of private parties,” 17 C.J.S. Contempt § 64 (2005). In any
event, such uncertainty concerning the nature of the fines merely rein-
forces the conclusion that further factfinding by the district court is neces-
sary before we can jump to the conclusion that the French fines are penal
and unenforceable.
502 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Yahoo! was afforded a three-month safe harbor to allow it
to implement the French court’s orders, and only then would
any fines be assessed. As with a U.S. civil contempt order, the
fines were entirely “avoidable through obedience.” Because
the French coercive fines’ aim is enforcement of an underly-
ing injunction that is civil (preventing the continuation of
harm the French court found LICRA and UEJF had already
suffered) rather than penal (benefitting French public justice
or vindicating the French court’s dignity and authority), the
California rule of comity announced in In re Stephanie M.
might well apply, were it not for the orders’ substantive uncon-
stitutionality.18 See 867 P.2d at 716.
For these reasons, unlike the majority we cannot take the
monetary penalty out of the ripeness analysis and assume that
Yahoo! is not harmed by the very threat of the French orders’
possible enforcement. Once again, at the least this is another
issue that could and should be remanded to the district court
for appropriate briefing and factfinding.
3. A new, higher burden for proving chilling effect
Finally, the majority dismisses the chilling effect of the
orders by placing the burden on Yahoo! to identify other
speech it wants to engage in but which is foreclosed by the
French orders. What more should Yahoo! have to specify
18
Even if the exact accruing fines as calculated by the French orders
were not directly enforceable under California law, Yahoo! could face the
possibility that a California court would enforce a foreign injunction with
its own state contempt proceedings under comity doctrine (again, assum-
ing no substantive constitutional defect). Cf. Biewend v. Biewend, 109
P.2d 701, 704 (Cal. 1941) (“Upon the basis of comity, however, as distin-
guished from the requirements of full faith and credit, the California courts
have in numerous cases ordered that a foreign decree for future payments
of alimony be established as the decree of the California court with the
same force and effect as if it had been entered in this state, including pun-
ishment for contempt if the defendant fails to comply.”), overruled on
other grounds by Worthley v. Worthley, 283 P.2d 19, 22-23 (Cal. 1955).
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 503
about the exact manner in which the objectionable content
would appear on its site? Millions of postings and other mate-
rial flow through Yahoo!’s networks each day.19 Yahoo! can-
not possibly predict when and how specific content prohibited
by the French orders will make its way onto its service. For
example, a user could decide at any time to post a message or
a link to a website containing impermissible content. Because
it acts as a platform for other speakers, Yahoo! cannot, as the
majority demands, identify the specific speech it wishes to
engage in that is prohibited by the injunction.
Nor should it have to. To place such a requirement on an
Internet provider — essentially forcing it to speculate as to the
particular speech activity its millions of users “might” engage
in as senders or recipients — is to afford it no First Amend-
ment protection at all. As the Supreme Court has recognized,
“ ‘[t]he Internet . . . offer[s] a forum for a true diversity of
political discourse, unique opportunities for cultural develop-
ment, and myriad avenues for intellectual activity.’ ” Ashcroft
v. American Civil Liberties Union, 535 U.S. 564, 566 (2002)
(quoting 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V)); see Bat-
zel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003) (emphasiz-
ing that Congress, in insulating Internet service providers
from liability for certain content published on their sites, rec-
ognized the importance of protecting the “unfettered and
unregulated development of free speech on the Internet”).20
19
The record indicates that as of July 2000, Yahoo! and its subsidiaries
had 146 million users worldwide. Each month Yahoo! users added or
edited more than 15 million Geocities web pages and posted more than 6
million classified advertisements. There were more than 2.5 million active
auction items viewable on Yahoo! each day and 200,000 Yahoo! clubs
were accessed each day by members who posted messages, uploaded pho-
tos or added Internet links.
20
Batzel analyzed the rationale for the provisions protecting Internet
providers under 47 U.S.C. § 230, which Yahoo! invoked before the district
court as a statutory basis for preventing enforcement of the French court
orders here.
504 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
The majority would impose on Yahoo! far greater burdens
and litigation risks than those alleging First Amendment vio-
lations by domestic parties would have to bear. Yahoo! is
expected to try to persuade the French court to narrow or
eliminate the very injunction Yahoo! has unsuccessfully
fought against in France from the beginning. Unconstrained
by our First Amendment, the French court might well take the
opportunity to sanction Yahoo! for noncompliance — and do
nothing to alleviate the sweeping restraint on the content of
the website. If the defendants want to narrow
the injunction such that it might warrant comity, that burden
should fall on them, not Yahoo!.
But even if Yahoo! went to the French court and obtained
a ruling that its current auction site policy and Internet ser-
vices content comply with the orders, that would not resolve
Yahoo!’s First Amendment problem unless the sweeping
injunction itself were permanently withdrawn or narrowed.
All Yahoo! would obtain would be clearance for its current
operations; it would remain exposed to the risk of violating
the orders and incurring penalties should it deviate from those
current practices or should the defendants decide that
Yahoo!’s content has become objectionable. The very nature
of Yahoo!’s business is inherently mutable — that is the
essence of the Internet, because of the sheer number and con-
stantly changing identity of its users and of the content those
users may seek or themselves post on . Only a
United States court can provide Yahoo! with a legal resolu-
tion of its claim that the injunctive order, as written, cannot
be enforced in the United States without infringing the com-
pany’s First Amendment rights, thereby relieving it of the
coercive threat hanging over its website and the operation of
its business. By denying adjudication, the majority abdicates
our proper role in protecting Yahoo!’s constitutional rights.
In so doing, it leaves in place a foreign country’s vague and
overbroad judgment mandating a U.S. company to bar access
to prohibited content by Internet users from that country. This
YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 505
astonishing result is itself the strongest argument for finding
Yahoo!’s claims ripe for adjudication. Are we to assume that
U.S.-based Internet service providers are now the policing
agencies for whatever content another country wants to keep
from those within its territorial borders — such as, for exam-
ple, controversial views on democracy, religion or the status
of women? If the majority’s application of the First Amend-
ment in the global Internet context in this case is to become
the standard — whether as a matter of constitutional law or
comity — then it should be adopted (or not) after full consid-
eration of the constitutional merits, not as a justification for
avoiding the issue altogether as not ripe for adjudication.
III. Conclusion
Without doubt, the hateful speech the defendants in this
case seek to suppress is to be condemned. But censoring
speech we find repugnant does not comport with our cher-
ished First Amendment. It is well-settled that a hate speech
code which “prohibits otherwise permitted speech solely on
the basis of the subjects the speech addresses” is “facially
unconstitutional.” R. A. V., 505 U.S. at 381. Under the majori-
ty’s reasoning, a party targeted for enforcement of a foreign
judgment restricting its speech in the United States will have
no recourse but to appeal to the foreign court, which does not
recognize the First Amendment, to try to escape the strictures
of the decree — or to demonstrate compliance, either through
voluntary action or by submitting to its terms. Only after
enduring the decree’s chilling effects while this process plays
out, and then faced with whatever sanction the foreign court
may impose for noncompliance, may the doors of the United
States District Court be opened.
We should not allow a foreign court order to be used as
leverage to quash constitutionally protected speech by deny-
ing the United States-based target an adjudication of its con-
stitutional rights in federal court. By invoking the doctrine of
prudential ripeness — notwithstanding having found both per-
506 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
sonal jurisdiction over the two foreign defendants and a con-
stitutional case or controversy — the majority does just that,
denying Yahoo! the only forum in which it can free itself of
a facially unconstitutional injunction. Moreover, in doing so
the majority creates a new and troubling precedent for U.S.-
based Internet service providers who may be confronted with
foreign court orders that require them to police the content
accessible to Internet users from another country. We there-
fore respectfully dissent from the majority’s ripeness decision.