23 August 2004


In a not at all surprising development—I'm really into civil procedure geek mode of late!—the Ninth Circuit has ruled that Yahoo!'s attempt to block enforcement of the French judgment against it regarding Nazi-related memorabilia and materials on its US-based website was void for want of personal jurisdiction. As Judge Ferguson's majority opinion states:

Jurisdiction may be obtained, and the First Amendment claim heard, once [the French plaintiff organizations] ask a U.S. district court to enforce the French judgment. As of yet, the organizations have declined to do so. Rather than wait for the French parties to take action, Yahoo! requested the District Court below to issue a declaratory judgment that enforcement of the French order by U.S. officials would be unconstitutional.

Yahoo!, Inc. v. La Ligue Contre le Recisme et L'Antisemitisme, No. 01-17424 (9th Cir. 23 Aug 2004), slip op. at 11928.

But that isn't the critical point. If this was all that mattered, then California's "long-arm" statute would allow jurisdiction… because the French plaintiffs used the US Marshall's Service to serve various papers on Yahoo! in California, including the judgments in question. Instead, the real argument is over whether inquiry into "wrongfulness" of the action precedes the inquiry into specific personal jurisdiction. The dissent argues that it does not—that is, that "wrongfulness" is part of the merits, and is not to be considered when determining jurisdiction over the parties. The majority holds that, in a case like this, "wrongfulness" matters, because what Yahoo! is "really" complaining about is a Constitutional tort. One has jurisdiction over a "wrong" under tort law wherever that "wrong" may be felt; of course, this is circular argumentation, and the majority on this panel would break the circle (and avoid renvoi) by assuming that existence of a judgment, by itself, can never be a "wrong"—that only enforcement can create a "wrong" allowing specific personal jurisdiction. Compare slip op. at 11932–34 (majority position, noting that France is within its rights to prohibit pro-Nazi speech within its own borders) with id. at 11943–44 (dissent, noting conflict in precedent and alternative theories).

I am not surprised by this ruling. However, I believe that the dissent has the better of the argument for jurisdiction. This case is best viewed as analogous to the "capable of repetition, yet evading review" exception to mootness challenges. Further, the dissent is correct to point out the logical fallacy in the majority's approach. The majority would treat the "directed at" requirement in Calder v. Jones and its progeny as being an exclusive means of judging jurisdiction; but that is neither required by the language of Calder nor logically mandated. It is a, not the, test for personal jurisdiction—and personal jurisdiction is disjunctive by its nature. That is, one need only find one reason for personal jurisdiction; pointing out failures under alternate theories of personal jurisdiction is not sufficient.

As an aside, I also note a factual problem elided by all of the courts thus far. There are multiple references to the Pr0t0c01s of the E1d3rs of Z10n in the various opinions (both in the US and France) as being "Nazi-related." Perhaps the Nazis adopted parts of the Protocols; but they long predate Hitler, having been created by the Tsar's secret police (Okhrana—I won't assume that your monitor can handle Cyrillic characters) in the nineteenth century. If nothing else, this points out the incompatibility of the French law with our First Amendment… and the corresponding declarations of rights in Europe: by merely labelling it as "related," a historical document somehow becomes unlawful.