99 Pages and Still Questions in Yahoo Case

When the Ninth Circuit killed Yahoo’s attempt to head off a French court’s order with a First Amendment claim in a U.S. court, the opinion called the territory in that case an “undeveloped area of the law.? But Kurt Opsahl, a staff attorney with San Francisco’s Electronic Frontier Foundation who’s been following the case, has seen something like it before: foreign defamation cases in which a plaintiff goes after a U.S. defendant who wants to claim a First Amendment defense.

And if you had the patience to wade through yesterday’s 99-page opinion (.pdf), you’d be rewarded with this bit of comfort offered to Yahoo by three of the judges even as they threw out its case: “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 five judges who did not want the case thrown out didn’t buy that argument, calling it a “speculative assessment.?)

In fact, a lot of the judges didn’t buy what their colleagues were selling. There were three concurrences and one partial dissent. A line from Diarmuid O’Scannlain’s concurrence underscores the complexity: “I respectfully dissent from the majority’s opinion while concurring 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.? So — are we all clear?

And finally, though Yahoo lost the battle, Opsahl — whose EFF fights for First Amendment causes online — says he saw a glimmer of good news for the Internet provider and its ilk. Because eight of the 11 en banc judges concluded that jurisdiction wasn’t a problem in Yahoo’s suit, he said, “that would mean that if, in the future, someone got an order like the French order, and then actually attempted to enforce it … the suit should go forward.? That, he added, should serve as a message to other potential plaintiffs that might try to get and enforce foreign court orders in the United States.

But E. Randol Schoenberg, the lawyer with L.A.’s Burris & Schoenberg who argued against Yahoo before the Ninth Circuit, was quick to point out that even if a Web site could clear the ripeness hurdle that helped defeat Yahoo’s suit, it can’t necessarily count on sailing past the jurisdiction argument. The Ninth Circuit, after all, doesn’t cover the whole country. “I’m willing to bet,? he said, “that not every circuit will agree with the ruling on personal jurisdiction.?

— Pam Smith

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