Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'antisemitisme

FERGUSON, Circuit Judge,

with whom O’SCANNLAIN and TASHIMA, Circuit Judges, join with respect to Part I, concurring 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 Yahool’s claims. Yahool’s suit should be dismissed, therefore, either under Rule 12(b)(2) or Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I.

The District Court did not properly exercise personal jurisdiction 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” at California under the “effects” test of Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (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 Colder. 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 Schwarzenegger, 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 ar*1225rangements”); 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, “because it individually targeted [Bancroft & Masters], a California 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 directing Yahoo! to perform significant acts in California.” Maj. op. at 1209.

That is not true. LICRA and UEJF’s suit sought French court orders directing Yahoo! to perform significant acts locally in France, not in California. The May 22, 2000 interim order declares: “[B]y permittingfanti-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 prevent 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 hable to be deemed an offence in France and/or to constitute a manifestly unlawful trouble [under French law]”; and “to take all measures 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 California, express aiming on the part of LICRA and UEJF was “obvious.” Maj. op. at 1209. 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 YahooFs server locations, security capabilities, or technical procedures or, more important, how they relate to YahooFs California-based operations. LICRA and UEJF had one aim and one aim only: to prevent French citizens from using ‘Yahoo.fr” and ‘Yahoo.com” to access illegal anti-Semitic hate merchandise in France. They were plainly concerned with YahooFs actions within France, regardless of where those actions emanated from.

“It may be true that [LICRA and UEJFj’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 UEJFj’s express aim was local.” Schwarzenegger, 374 F.3d at 807.

II.

The District Court should have also abstained from deciding YahooFs claims.

The common law act of state doctrine specifies:

Every foreign state is bound to respect the independence of every other sover*1226eign 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, 18 S.Ct. 83, 42 L.Ed. 456 (1897). “Judicial ... engagement in the task of passing on the validity of foreign acts of state may hinder the conduct of foreign affairs.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). The act of state doctrine therefore “mandates [judicial] abstention.” Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir.1989); see also West v. Multibanco Comennex, S.A., 807 F.2d 820, 827 (9th Cir.1987) (“The act of state doctrine is a combination justiciability and abstention rule ...”).

While a foreign court judgment arising out of private litigation 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 (citing 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 Nati 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 seeking 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 deference. Id. at 772.

We disagreed and held that the Philippine Supreme Court judgment was an act of state because it effectuated the “statutory mandate [of the Philippine government] to recover property 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 “collection efforts of the Republic [of Philippines],” even though they extended beyond Philippine’s borders into Singapore, were “governmental,” and the Philippine Supreme Court decision 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 borders’ ... ”) (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 factors lead to this conclusion. First, while LICRA and UEJF were private French litigants, they were acting as non-governmental, anti-racist associations and institutional partners with the French government in fighting anti-Semitism.1 Their injunctive actions against Yahoo! clearly *1227followed the French government’s mandate to enforce Le Nouveau Code Penal Art. R. 645-2 (“Nazi Symbols Act”), a criminal provision. 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 damages suffered by [LICRA and UEJF] be recognised.” Prior to the issuance of the French court orders, Dillange publicly condemned 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 accordance with the demands of the French public prosecutor.

Second, French justice Jean-Jaeques Gomez expressly recognized 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 existence for the promotion [of] Nazism” and described the commercial 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 enforcement of a robust French state policy against racism, xenophobia, 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 violating, encompassed France’s earlier dramatic efforts to criminalize 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

*1228The 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 consequences 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 omitted). Our current government, in fact, is already “fully committed 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 country 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.

. The French anti-racism Pleven law ("Loi Pleven”), passed in July 1972, expressly permits French anti-racist associations to file legal actions to combat racism. The law *1227confers 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/ droitculture/cinema/pdf/l-290781 .pdf; see also Eric Bleich, Race Politics In And France: Ideas And Policymaking Since The 1960S 135-39 (2003).

. Reuters, "Paris Prosecutor Condemns Nazi Auctions on Yahoo,” May 15, 2000, available at http://www.icare.to/archivemay2000.html.

.1 It is also worth noting that the French court orders were final criminal judgments that Yahoo! elected not to appeal through the French court system. Instead, Yahoo! brought the present declaratory relief action for a U.S. district court to invalidate the French court orders based on a violation of Yahoofs First *1228Amendment right. In so doing, Yahoo! here is essentially no different than a party losing in state court who seeks to vindicate his or her federal rights by challenging the adverse state court judgment in federal district court. The Supreme Court has barred such opportunistic attempts at relitigation under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Coip., 544 U.S. 280, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005).

. 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. 1 OS-332, which authorized the 2005 report, the first of its kind.