In the United States Court of Appeals for the Ninth Circuit
Various civil liberties attorneys, international visitors, and I made the brief trip two weeks ago over to the main courthouse of the Ninth Circuit in the South of Market Area in San Francisco. It's a beautiful building, and, though I've seen one other argument in the Ninth Circuit at another venue, I had never been inside this courthouse before.
We were there to see the rehearing en banc in Yahoo v. LICRA (more fully, Yahoo, Inc., v. La Ligue Contra Le Racisme et L'Antisemitisme). This is better known as the "Nazi memorabilia auctions" case. Previously, a French court had ruled in favor of student antiracist groups that sued Yahoo in France for permitting Nazi materials on its web sites, including Yahoo Auctions. Yahoo then filed suit in the U.S. to try to block enforcement of that judgment against it here on the grounds that enforcing that decision would violate Yahoo's first amendment rights. Yahoo won that case in the District Court and then lost on appeal to the Ninth Circuit. (The three-judge panel ruled that U.S. courts did not have jurisdiction over the French groups at this stage because they had not actually tried to enforce the French decision in the U.S.) Yahoo then sought rehearing en banc (before a larger panel of judges of the Ninth Circuit); EFF was amicus in support of Yahoo's rehearing request.
The en banc panel consisted of 11 randomly-selected judges of the Ninth Circuit, who had the power to reverse the earlier decision of three judges of that court. (Interestingly, they also have the power to reverse other earlier published decisions by the Ninth Circuit, something they alluded to during the argument; a Circuit Court sitting en banc is technically bound only by Supreme Court decisions, making it uniquely unconstrained by precedent if it so chooses.)
In theory, a lot of the U.S. case relates to the question of whether suing a U.S. entity abroad, in an effort to intimidate it or change its behavior in the U.S., is enough to give the U.S. entity a right to sue here for a judicial determination of whether its behavior is protected by U.S. law. This is a particular species of the question of when a court will exercise jurisdiction to grant a declaratory judgment, in order to avoid the "sword of Damocles" problem where someone is intimidated by an ongoing threat of a lawsuit.
Oddly, the judges did not seem particularly familiar with the factual history of the case. The lawyers came prepared to argue about jurisdiction, but a huge proportion of the questioning from the court was about specific facts, which ought to have been in the record. I don't think either side was prepared for such extensive factual questioning; I think both sides assumed that the judges would already have read the record of the case.
One of the judges got very upset at Yahoo for having brought the case in the first place, suggesting that Yahoo should not be seeking the right to sell and profit from Nazi memorabilia. He suggested that Yahoo should simply accept that it was wrong to help people trade Nazi objects or ideas, comply with the French judgment, and go home. The other judges mostly seemed to accept the idea that Yahoo did have a first amendment interest at stake, but weren't sure about whether declaratory judgment was appropriate in a situation like this.
One of the oddities of declaratory judgment is that the plaintiff often tries to show that it does have legal risk or exposure (that it is arguably doing something improper and hence is at risk of being sued), whereas the defendant tries to make the case go away by suggesting that it actually has no objection to the plaintiff's behavior. You can ridicule this dynamic as the "I'm a bad guy and you hate me"/"No you're not, and I don't" exchange.
Indeed, Yahoo spent a long time arguing that it was, in fact, flagrantly violating the French court's order, that it had never been in compliance with the French court's order, and that it was incapable of complying with it. It suggested that it was likely to get in plenty of trouble for continually flouting the court order and could be liable for an enormous fine. (Normally you don't hear corporate lawyers go to such great lengths to argue that the corporations are continuing to disobey court orders.) On the other side, LICRA (trying to make the case go away by suggesting that there was no real disagreement) kept arguing that Yahoo actually was complying with the court's order, that Yahoo was at no risk, that Yahoo was already doing the right thing, etc. This was quite a spectacle.
I'm amazed by the non-universalism that everyone in the courtroom (with the possible exception of the judge who criticized Yahoo) displayed. Everyone accepted the idea that France was right to forbid racist advocacy while the U.S. was simultaneously right to permit it, and that neither country ought to be able to do anything to undermine the other's policy. I heard nothing from other side that would have brought this idea into doubt. There was certainly no argument by the lawyers themselves that Nazi auctions were actually good or bad or that censorship of racist advocacy was actually a good or a bad thing. The theory seemed to be "they censor it, we don't, the question here is whether that discrepancy given a particular set of facts will create jurisdiction for a declaratory judgment action". I guess this could be seen as another instance of lawyers' and judges' famous ability to compartmentalize issues.
