Inconsistency

When the Founding Fathers set in stone the right of freedom of speech in the First Amendment, I doubt any of them realized the challenges those who would be in charge of interpreting the document would face. With the dawn of the information age, a new media evolved that would test the limits of the First Amendment: the internet. Never before had such a truly global medium existed that was truly accessible to everyone. To its credit, the Supreme Court has maintained a fairly hands-off approach to the internet, as demonstrated in ACLU v. Reno when the Court shied away from regulation. Because of its accessibility at all times, the court decided there was no way to regulate its content, in this case sexual content, without imposing a total ban on the media which they deemed a trampling on the First Amendment. I would have to agree. However, the worldwide nature of this technology would create a whole new set of global issues. How do we protect our right to freedom of speech that we as Americans hold so dear in the face of global controversy.

In 2000, a French organization sued Yahoo! in the French High Court for violation of French law (that prohibits the expression of symbols or ideas used by the Nazi Party) for allowing pro-Nazi discussions in its chat rooms and for the posting of Nazi paraphernalia on its auction sites. It required Yahoo! to block these items from French viewers and fined the company $13.000 each day it failed to comply. Yahoo! appealed to the United States District Court of Northern California on several grounds. First, Yahoo’s servers were in the United States and were primarily targeted to US citizens. They also sued obviously on First Amendment grounds. This court decided in favor of Yahoo! stating the ruling inconsistent with the First Amendment. The case was later reviewed by the Court of the Appeals of the 9th Circuit, where the decision was reversed, saying the charges against the company were solely directed at their business in France and therefore fell under French jurisdiction.

Obviously, this case raises some interesting questions. Is this regulation inconsistent with the First Amendment? Should France be allowed to impose its laws on a United States company? How does this decision mesh with the Reno v. ACLU decision? In response to the first question, I would argue it most certainly is. As decided by the Supreme Court in Police Department of Chicago v. Mosley, which stated, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Clearly, banning of pro-Nazi discussion on chat room and prohibiting the sale of Nazi paraphernalia is done so because of the viewpoint this group holds.I’m not entirely sure how the other side would argue against this violation except maybe to say any speech regarding the Nazi Party would be prohibited regardless of whether it was in support of the party or not. However, this would still be blatant viewpoint discrimination because the regulation would be based solely on the content of the speech.

So with the First Amendment issue dealt with, now come the trickier ones. Should France be allowed to impose its laws on a United States company? Many would say no. Yahoo! is based out of the United States and therefore should be subject to the US Constitution, not French Law. Also, in Zippo Manufacturing Co. v. Zippo Dot Com Inc., jurisdiction is determined by how “active” or “passive” the website is deemed to be. Active websites enter into business transactions with other groups while passive websites simply make information available. Active websites are more likely to fall under the jurisdiction of the are where the transactions are taking place than passive websites. Therefore, one would think in the case of Yahoo!, their involvement would be primarily passive in that they simply offer users the opportunity to post on their server. This would suggest France had little jurisdiction. However, the international Convention on Cybercrime allows states to claim jurisdiction over individuals in the state the crime was committed. Therefore, the argument could be made for France’s jurisdiction. Still not sure what to think? Neither am I.

Perhaps the only way I start to feel a little better is to discuss the last issue: how this decision works with Reno v. ACLU. The French court took the time to determine the technology available to Yahoo! to block the content from French citizens only. Their ruling was Yahoo! did have the ability to limit the prohibition of Nazi paraphernalia and discussions only to French users. In this case, this would be consistent with Reno v. ACLU which did not ban sexual content on the basis that it would require a total ban. It seems in this case that Yahoo’s banning of Nazi related speech in France would not require a total ban on the speech. This makes the decision a bit more palatable to me anyway. However, it is also probably worth mentioning that Yahoo!, in order to avoid future issues, prevented the posting of Nazi discussions or memorabilia on its servers entirely. Sigh.

I guess the moral of this story is the internet is tricky, especially when it comes to the Freedom of Speech. I'm sure that until the technology is readily available to block content based on the geographic location of the user, these issues will continue to crop up. Maybe when this happens, we will be able to use the internet with full protection under the First Amendment of the United States. Until then, I guess we’ll continue to step on foreign toes.


Also used in aid to my argument:

Cooper, Gregory S. "Tangled Web We Weave: Enforcing International Speech Restrictions in an Online World." University of Pittsburgh Journal of Technology Law & Policy 8.2 (2007). LexisNexis Academic. LexisNexis. 29 Mar. 2009 http://web.lexis-nexis.com/universe.