Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YAHOO! INC., a Delaware 

corporation,

Plaintiff-Appellee,

No. 01-17424 v.

D.C. No. LA LIGUE CONTRE LE RACISME ET  CV-00-21275-JF L’ANTISEMITISME, a French

association; L’UNION DES OPINION

ETUDIANTS JUIFS DE FRANCE, a

French association,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

Jeremy Fogel, District Judge, Presiding

Argued and Submitted

March 24, 2005—San Francisco, California

Filed January 12, 2006

Before: Mary M. Schroeder, Chief Judge, and

Warren J. Ferguson, Diarmuid F. O’Scannlain,

Michael Daly Hawkins, A. Wallace Tashima,

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,

Circuit Judges.

403
2 OPINIONS;

Per Curiam Opinion;

Opinion by Judge William A. Fletcher;

Concurrence by Judge Ferguson;

Concurrence by Judge O’Scannlain;

Concurrence by Judge Tashima;

Partial Concurrence and Partial Dissent by Judge Fisher

404 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
COUNSEL

Randol Schoenberg, Burris & Schoenberg, Los Angeles, California; Robert A. Christopher, Coudert Brothers, Palo Alto,

California; Mark D. Lebow, Sokolow Carreras, New York,

New York, for the defendants-appellants. 

Michael Traynor, Cooley, Godward, Castro, Huddelson &

Tatum, San Francisco, California; Robert C. Vanderet,

O’Melveney & Myers, Los Angeles, California, for the

plaintiff-appellee. 

Ann Brick, ACLU, San Francisco, California; John B. Morris,

Jr., Alan B. Davidson, Center for Democracy & Technology,

Washington, D.C., for amici American Booksellers Foundation for Free Expression, et al. 

Jodie L. Kelley, Brian Hauck, Jenner & Block, Washington,

D.C.; Stephen A. Bokat, Robin S. Conrad, Joshua A. Ulman,

National Chamber Litigation Center, Washington, D.C., for

amici Chamber of Commerce of the United States, et al., and

for amicus Center for Democracy. 

OPINION

PER CURIAM: 

A majority of the en banc court (Judge W.A. Fletcher,

joined by Chief Judge Schroeder and Judges Hawkins, Fisher,

Gould, Paez, Clifton, and Bea) concludes that the district

court had personal jurisdiction over the defendants. Of that

majority, three judges (Chief Judge Schroeder, and Judges

W.A. Fletcher and Gould) conclude that the action should be

dismissed for lack of ripeness. Five judges (Judge Fisher,

joined by Judges Hawkins, Paez, Clifton, and Bea) conclude

that the case is ripe for adjudication. The three remaining

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 409
judges (Judges Ferguson, O’Scannlain, and Tashima) conclude that the action should be dismissed because the district

court lacked personal jurisdiction over the defendants. 

A majority of the en banc court having voted therefor, the

judgment of the district court is REVERSED and the case

REMANDED with directions to dismiss the action without

prejudice.

YAHOO! INC., a Delaware 

corporation,

Plaintiff-Appellee,

No. 01-17424 v.

D.C. No. LA LIGUE CONTRE LE RACISME ET  CV-00-21275-JF L’ANTISEMITISME, a French

association; L’UNION DES OPINION

ETUDIANTS JUIFS DE FRANCE, a

French association,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

Jeremy Fogel, District Judge, Presiding

Argued and Submitted

March 24, 2005—San Francisco, California

Filed January 12, 2006

Before: Mary M. Schroeder, Chief Judge, and

Warren J. Ferguson, Diarmuid F. O’Scannlain,

Michael Daly Hawkins, A. Wallace Tashima,

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

Richard A. Paez, Richard R. Clifton, and Carlos T. Bea,

Circuit Judges.

410 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Opinion by Judge William A. Fletcher

W. FLETCHER, Circuit Judge, with whom SCHROEDER,

Chief Circuit Judge, and GOULD, Circuit Judge, join as to

the entire opinion, and with whom HAWKINS, FISHER,

PAEZ, CLIFTON and BEA, Circuit Judges, join as to Parts

I and II: 

Yahoo!, an American Internet service provider, brought

suit in federal district court in diversity against La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union

des Etudiants Juifs de France (“UEJF”) seeking a declaratory

judgment that two interim orders by a French court are unrecognizable and unenforceable. The district court held that the

exercise of personal jurisdiction over LICRA and UEJF was

proper, that the dispute was ripe, that abstention was unnecessary, and that the French orders are not enforceable in the

United States because such enforcement would violate the

First Amendment. The district court did not reach the question

whether the orders are recognizable. LICRA and UEJF appeal

only the personal jurisdiction, ripeness, and abstention holdings. A majority of the en banc panel holds, as explained in

Part II of this opinion, that the district court properly exercised personal jurisdiction over LICRA and UEJF. A plurality

of the panel concludes, as explained in Part III of this opinion,

that the case is not ripe under the criteria of Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). We do not reach

the abstention question. 

I. Background

Yahoo! is a Delaware corporation with its principal place

of business in California. Through its United States-based

website yahoo.com, Yahoo! makes available a variety of

Internet services, including a search engine, e-mail, web page

hosting, instant messaging, auctions, and chat rooms. While

some of these services rely on content created by Yahoo!, others are forums and platforms for user-generated content.

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 411
Yahoo! users can, for example, design their own web pages,

share opinions on social and political message boards, play

fantasy baseball games, and post items to be auctioned for

sale. Yahoo! does not monitor such user-created content

before it is posted on the web through Yahoo! sites.

Yahoo!’s United States website is written in English. It targets users in the United States and relies on servers located in

California. Yahoo!’s foreign subsidiaries, such as Yahoo!

France, Yahoo! U.K., and Yahoo! India, have comparable

websites for their respective countries. The Internet addresses

of these foreign-based websites contain their two-letter country designations, such as fr.yahoo.com, uk.yahoo.com, and

in.yahoo.com. Yahoo!’s foreign subsidiaries’ sites provide

content in the local language, target local citizens, and adopt

policies that comply with local law and customs. In actual

practice, however, national boundaries are highly permeable.

For example, any user in the United States can type

www.fr.yahoo.com into his or her web browser and thereby

reach Yahoo! France’s website. Conversely, any user in

France can type www.yahoo.com into his or her browser, or

click the link to Yahoo.com on the Yahoo! France home page,

and thereby reach yahoo.com.

Sometime in early April 2000, LICRA’s chairman sent by

mail and fax a cease and desist letter, dated April 5, 2000, to

Yahoo!’s headquarters in Santa Clara, California. The letter,

written in English, stated in part: 

[W]e are particularly choked [sic] to see that your

Company keeps on presenting every day hundreds of

nazi symbols or objects for sale on the Web. 

This practice is illegal according to French legislation and it is incumbent upon you to stop it, at least

on the French Territory. 

412 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Unless you cease presenting nazi objects for sale

within 8 days, we shall size [sic] the competent jurisdiction to force your company to abide by the law.

On April 10, five (rather than eight) days after the date on the

letter, LICRA filed suit against Yahoo! and Yahoo! France in

the Tribunal de Grande Instance de Paris. On April 20, UEJF

joined LICRA’s suit in the French court. LICRA and UEJF

used United States Marshals to serve process on Yahoo! in

California. 

After a hearing on May 15, 2000, the French court issued

an “interim” order on May 22 requiring Yahoo! to “take all

necessary measures to dissuade and render impossible any

access [from French territory] via Yahoo.com to the Nazi artifact auction service and to any other site or service that may

be construed as constituting an apology for Nazism or a contesting of Nazi crimes” (emphasis added).1

 Among other

things, the French court required Yahoo! to take particular

specified actions “[b]y way of interim precautionary measures.” Yahoo! was required “to cease all hosting and availability in the territory of [France] from the ‘Yahoo.com’ site

. . . of messages, images and text relating to Nazi objects, relics, insignia, emblems and flags, or which evoke Nazism,”

and of “Web pages displaying text, extracts, or quotes from

‘Mein Kampf’ and the ‘[Protocols of the Elders of Zion]’ ” at

two specified Internet addresses. Yahoo! was further required

to remove from “all browser directories accessible in the territory of the French Republic” the “index heading entitled

‘negationists’ ” and any link “bringing together, equating, or

1The French court’s orders are written in French. We quote from the

English translation provided in the record. Counsel for LICRA and UEJF

contended at oral argument that the words “all necessary measures”

(underlined and italicized above) are a mistranslation of the French text.

The original French for the entire phrase (italicized above) is “prendre

toutes les mesures de nature à dissuader et à rendre impossible.” Counsel

contended that the words “toutes les mesures de nature à” are more accurately translated as “all reasonable (or available) measures.” 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 413
presenting directly or indirectly as equivalent” sites about the

Holocaust and sites by Holocaust deniers. 

The May 22 interim order required Yahoo! France (as distinct from Yahoo!) to remove the “negationists” index heading and the link to negationist sites, described above, from

fr.yahoo.com. The order further required Yahoo! France to

post a warning on fr.yahoo.com stating to any user of that

website that, in the event the user accessed prohibited material

through a search on Yahoo.com, he or she must “desist from

viewing the site concerned[,] subject to imposition of the penalties provided in French legislation or the bringing of legal

action against him.”

The order stated that both Yahoo! and Yahoo! France were

subject to a penalty of 100,000 Euros per day of delay or per

confirmed violation, and stated that the “possibility of liquidation of the penalties thus pronounced” was “reserve[d].” The

order also awarded 1 Franc in “provisional damages,” payable

by Yahoo! and Yahoo! France to UEJF, and awarded an additional 1 Franc against Yahoo! and Yahoo! France for

expenses under Article 700 of the New Code of Civil Procedure. The French court also awarded 10,000 Francs against

Yahoo! for expenses under Article 700, payable to LICRA,

and 10,000 Francs each against Yahoo! and Yahoo! France

under Article 700 (a total of 20,000 Francs), payable to UEJF.

Yahoo! objected to the May 22 order. It contended, among

other things, that “there was no technical solution which

would enable it to comply fully with the terms of the court

order.” (Emphasis added.) In response, the French court

obtained a written report from three experts. The report concluded that under current conditions approximately 70% of

Yahoo! users operating from computer sites in France could

be identified. The report specifically noted that Yahoo!

already used such identification of French users to display

advertising banners in French. The 70% number applied irrespective of whether a Yahoo! user sought access to an auction

414 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
site, or to a site denying the existence of the Holocaust or constituting an apology for Nazism.

With respect to auction sites, the report concluded that it

would be possible to identify additional users. Two out of the

three experts concluded that approximately an additional 20%

of users seeking access to auction sites offering Nazi-related

items for sale could be identified through an honor system in

which the user would be asked to state his or her nationality.

In all, the two experts estimated that almost 90% of such auction site users in France could be identified: “The combination of the two procedures, namely geographical identification

of the IP address and declaration of nationality, would be

likely to achieve a filtering success rate approaching 90%.”

The third expert expressed doubts about the number of additional users of the auction site who would respond truthfully

under the honor system. He did not, however, specify an alternative number of users — say, 15% or 10% — who would

respond truthfully.

With respect to sites denying the existence of the Holocaust

or constituting an apology for Nazism, the report was not able

to “propose suitable and effective technical solutions”

because no “grievance” against those sites had been made

with “sufficient precision.” In consequence, as to these nonauction sites, the report did not estimate how many Yahoo!

users above the base 70% number could be identified by an

honor system.

In a second interim order, issued on November 20, 2000,

the French court reaffirmed its May 22 order and directed

Yahoo! to comply within three months, “subject to a penalty

of 100,000 Francs per day of delay effective from the first day

following expiry of the 3 month period.” (The May 22 order

had specified a penalty of 100,000 Euros rather than 100,000

Francs.) The court “reserve[d] the possible liquidation of the

penalty” against Yahoo!. The French court’s November 20

order required Yahoo! France (as distinct from Yahoo!) to

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 415
display “a warning to surfers even before they have made use

of the link to Yahoo.com, to be brought into effect within 2

months following notification of the present order.” However,

the French court found “that YAHOO FRANCE has complied

in large measure with the spirit and letter of the order of 22nd

May 2000[.]” (Emphasis added.)

The November 20 order required Yahoo! to pay 10,000

Francs for a report, to be prepared in the future by one of the

experts previously appointed by the court, to determine

whether Yahoo! was in compliance with the court’s orders. It

also awarded a total of 20,000 Francs against Yahoo! for

expenses under Article 700, payable to LICRA and UEJF, and

an unspecified amount of costs against Yahoo!, payable to

LICRA and UEJF. The court specifically stated that it was not

awarding any expenses or costs against Yahoo! France (which

it had found to have complied “in large measure” with its

order). LICRA and UEJF used United States Marshals to

serve both orders on Yahoo! in Santa Clara, California. 

Yahoo! did not pursue appeals of either interim order. 

The French court has not imposed any penalty on Yahoo!

for violations of the May 22 or November 20 orders. Nor has

either LICRA or UEJF returned to the French court to seek

the imposition of a penalty. Both organizations affirmatively

represent to us that they have no intention of doing so if

Yahoo! maintains its current level of compliance. Yet neither

organization is willing to ask the French court to vacate its

orders. As LICRA and UEJF’s counsel made clear at oral

argument, “My clients will not give up the right to go to

France and enforce the French judgment against Yahoo! in

France if they revert to their old ways and violate French

law.”

The record reveals that the French “public prosecutor” participated in the proceedings against Yahoo! and Yahoo!

France in the French court, but it does not reveal whether he

416 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
has the authority to seek a penalty against Yahoo! under the

interim orders, either on his own or pursuant to a request by

LICRA and/or UEJF. The public prosecutor was not made a

party to the suit in the district court, and has made no appearance in the district court or on appeal to this court. If LICRA,

UEJF, or the public prosecutor were to seek the imposition of

a penalty by the French court pursuant to the interim orders,

that court would have to determine the extent of Yahoo!’s

violation, if any, of the orders, as well as the amount of any

penalty, before an award of a penalty could be entered. 

On December 21, 2000, Yahoo! filed suit against LICRA

and UEJF in federal district court, seeking a declaratory judgment that the interim orders of the French court are not recognizable or enforceable in the United States. Subject matter

jurisdiction is based solely on diversity of citizenship. 28

U.S.C. § 1332(a)(2). In a thoughtful opinion, the district court

concluded that it had personal jurisdiction over LICRA and

UEJF. Yahoo! Inc. v. La Ligue Contre le Racisme et

l’Antisemitisme, 145 F. Supp. 2d 1168, 1180 (N.D. Cal.

2001). Several months later, in another thoughtful opinion,

the district court concluded that the suit was ripe, that abstention was not warranted, and that “the First Amendment precludes enforcement within the United States.” Yahoo!, Inc. v.

La Ligue Contre le Racisme et l’Antisemitisme, 169 F. Supp.

2d 1181, 1194 (N.D. Cal. 2001). 

In early 2001, after both interim orders had been entered by

the French court, and after Yahoo! had filed suit in federal

district court, Yahoo! adopted a new policy prohibiting use of

auctions or classified advertisements on Yahoo.com “to offer

or trade in items that are associated with or could be used to

promote or glorify groups that are known principally for hateful and violent positions directed at others based on race or

similar factors.” Yahoo! has represented, in this court and

elsewhere, that its new policy has not been adopted in

response to the French court’s orders, but rather for independent reasons. Yahoo’s new policy eliminates much of the conYAHOO! INC. v. LA LIGUE CONTRE LE RACISME 417
duct prohibited by the French orders. However, after

conducting its own Internet research on yahoo.com, the district court found that even after this policy change, Yahoo!

“appear[s]” not to have fully complied with the orders with

respect to its auction site. 169 F. Supp. 2d at 1185. For example, the district court found that Yahoo! continued to allow

the sale of items such as a copy of Mein Kampf and stamps

and coins from the Nazi period on which the swastika is

depicted. Id. The district court also found that access was

available through yahoo.com to various sites in response to

searches such as “Holocaust/5 did not happen.” Id.

LICRA and UEJF timely appealed the district court’s rulings on personal jurisdiction, ripeness, and abstention. 

II. Personal Jurisdiction

The only bases for personal jurisdiction over LICRA and

UEJF in the district court are the actions they have taken in

connection with their French suit against Yahoo!. Those

actions are sending a cease and desist letter to Yahoo! at its

headquarters in Santa Clara, California; serving process on

Yahoo! in Santa Clara to commence the French suit; obtaining two interim orders from the French court; and serving the

two orders on Yahoo! in Santa Clara.

Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law

of the state in which the district court sits. See Fed. R. Civ.

P. 4(k)(1)(A); Panavision Int’l, L.P. v. Toeppen, 141 F.3d

1316, 1320 (9th Cir. 1998). Because California’s long-arm

jurisdictional statute is coextensive with federal due process

requirements, the jurisdictional analyses under state law and

federal due process are the same. Id. at 1320 (citing Cal. Civ.

Proc. Code § 410.10).

[1] In International Shoe Co. v. Washington, 326 U.S. 310

(1945), the Supreme Court held that a court may exercise per418 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
sonal jurisdiction over a defendant consistent with due process only if he or she has “certain minimum contacts” with

the relevant forum “such that the maintenance of the suit does

not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457,

463 (1940)). Unless a defendant’s contacts with a forum are

so substantial, continuous, and systematic that the defendant

can be deemed to be “present” in that forum for all purposes,

a forum may exercise only “specific” jurisdiction — that is,

jurisdiction based on the relationship between the defendant’s

forum contacts and the plaintiff’s claim. The parties agree that

only specific jurisdiction is at issue in this case.

[2] In this circuit, we analyze specific jurisdiction according to a three-prong test: 

(1) The non-resident defendant must purposefully

direct his activities or consummate some transaction

with the forum or resident thereof; or perform some

act by which he purposefully avails himself of the

privilege of conducting activities in the forum,

thereby invoking the benefits and protections of its

laws; 

(2) the claim must be one which arises out of or

relates to the defendant’s forum-related activities;

and 

(3) the exercise of jurisdiction must comport with

fair play and substantial justice, i.e. it must be reasonable. 

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802

(9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421

(9th Cir. 1987)). The first prong is determinative in this case.

We have sometimes referred to it, in shorthand fashion, as the

“purposeful availment” prong. Schwarzenegger, 374 F.3d at

802. Despite its label, this prong includes both purposeful

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 419
availment and purposeful direction. It may be satisfied by purposeful availment of the privilege of doing business in the

forum; by purposeful direction of activities at the forum; or by

some combination thereof. 

We have typically treated “purposeful availment” somewhat differently in tort and contract cases. In tort cases, we

typically inquire whether a defendant “purposefully direct[s]

his activities” at the forum state, applying an “effects” test

that focuses on the forum in which the defendant’s actions

were felt, whether or not the actions themselves occurred

within the forum. See Schwarzenegger, 374 F.3d at 803 (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). By contrast, in contract cases, we typically inquire whether a

defendant “purposefully avails itself of the privilege of conducting activities” or “consummate[s] [a] transaction” in the

forum, focusing on activities such as delivering goods or executing a contract. See Schwarzenegger, 374 F.3d at 802. However, this case is neither a tort nor a contract case. Rather, it

is a case in which Yahoo! argues, based on the First Amendment, that the French court’s interim orders are unenforceable

by an American court. 

[3] LICRA and UEJF contend that we must base our analysis on the so-called “effects” test of Calder v. Jones, 465 U.S.

783 (1984), which is normally employed in purposeful direction cases. See, e.g., CE Distrib., LLC v. New Sensor Corp.,

380 F.3d 1107, 1111 (9th Cir. 2004); Schwarzenegger, 374

F.3d at 803; Dole Food Co. v. Watts, 303 F.3d 1104, 1111

(9th Cir. 2002). In Calder, a California-based entertainer sued

the National Enquirer and various individual defendants for

an allegedly defamatory article published in the Enquirer. The

article had been written and edited in Florida, and the defendants had few contacts with California. The Court nonetheless

upheld the exercise of personal jurisdiction in California

because the defendants knew that the article would have an

effect in that state. In the words of the Court, the defendants

had not engaged in “mere untargeted negligence”; rather, their

420 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
“intentional, and allegedly tortious, actions were expressly

aimed at California.” 465 U.S. at 789. 

[4] In this circuit, we construe Calder to impose three

requirements: “the defendant allegedly [must] have (1) committed an intentional act, (2) expressly aimed at the forum

state, (3) causing harm that the defendant knows is likely to

be suffered in the forum state.” Schwarzenegger, 374 F.3d at

803 (quoting Dole Food, 303 F.3d at 1111). In some of our

cases, we have employed a slightly different formulation of

the third requirement, specifying that the act must have

“caused harm, the brunt of which is suffered and which the

defendant knows is likely to be suffered in the forum state.”

Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d

1082, 1087 (9th Cir. 2000) (emphasis added). The “brunt” of

the harm formulation originated in the principal opinion in

Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482 (9th Cir.

1993). That opinion required that the “brunt” of the harm be

suffered in the forum state; based on that requirement, it concluded that there was no purposeful availment by the defendant. Id. at 1486. A dissenting judge would have found

purposeful availment. Relying on the Supreme Court’s opinion in Keeton v. Hustler Magazine, 465 U.S. 770 (1984), he

specifically disavowed the “brunt” of the harm formulation.

Core-Vent, 11 F.3d at 1492 (Wallace, C.J., dissenting) (“[T]he

Supreme Court has already rejected the proposition that the

brunt of the harm must be suffered in the forum.”). Without

discussing the disputed “brunt” of the harm formulation, a

concurring judge agreed with the dissenter that purposeful

availment could be found. Id. at 1491 (Fernandez, J., concurring) (“I agree with Chief Judge Wallace that purposeful

availment can be found in this case.”). Later opinions picked

up the “brunt” of the harm formulation of the principal opinion in Core-Vent without noting that at least one, and possibly

two, of the judges on the panel disagreed with it. See, e.g.,

Bancroft & Masters, 223 F.3d at 1087; Panavision, 141 F.3d

at 1321; Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126,

128 (9th Cir. 1995). 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 421
[5] We take this opportunity to clarify our law and to state

that the “brunt” of the harm need not be suffered in the forum

state. If a jurisdictionally sufficient amount of harm is suffered in the forum state, it does not matter that even more

harm might have been suffered in another state. In so stating

we are following Keeton, decided the same day as Calder, in

which the Court sustained the exercise of personal jurisdiction

in New Hampshire even though “[i]t is undoubtedly true that

the bulk of the harm done to petitioner occurred outside New

Hampshire.” 465 U.S. at 780. 

LICRA and UEJF contend that the Calder effects test is not

satisfied because, in their view, Calder requires that the

actions expressly aimed at and causing harm in California be

tortious or otherwise wrongful. LICRA and UEJF contend

that they have done no more than vindicate their rights under

French law, and that their behavior has therefore not been

wrongful. They conclude that their behavior therefore does

not confer personal jurisdiction in California. We agree with

LICRA and UEJF that the Calder effects test is appropriately

applied to the interim orders of the French court. But we disagree with them about the meaning and application of Calder.

In any personal jurisdiction case we must evaluate all of a

defendant’s contacts with the forum state, whether or not

those contacts involve wrongful activity by the defendant.

See, e.g., Quill Corp. v. North Dakota, 504 U.S. 298, 308

(1992) (upholding jurisdiction to enforce state tax on out-ofstate corporation that sent catalogs and goods to forum); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985)

(upholding personal jurisdiction based on a course of dealing

related to a franchise agreement). Many cases in which the

Calder effects test is used will indeed involve wrongful conduct by the defendant. See, e.g., Calder, 465 U. S. at 790,

(allegedly defamatory publication purposefully directed at

California); Bancroft & Masters, 223 F.3d at 1088 (wrongful

interference with California corporation’s use of domain

name); Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1192

422 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
(9th Cir. 1988) (unauthorized use of celebrity’s name and

likeness to promote Swiss clinic); Lake, 817 F.2d at 1422-23

(provision of legal services to secure allegedly improper custody order). But we do not read Calder necessarily to require

in purposeful direction cases that all (or even any) jurisdictionally relevant effects have been caused by wrongful acts.

We do not see how we could do so, for if an allegedly wrongful act were the basis for jurisdiction, a holding on the merits

that the act was not wrongful would deprive the court of jurisdiction. 

We therefore analyze all of LICRA and UEJF’s contacts

with California relating to its dispute with Yahoo!, irrespective of whether they involve wrongful actions by LICRA and

UEJF. There are three such contacts. The first two contacts,

taken by themselves, do not provide a sufficient basis for

jurisdiction. However, the third contact, considered in conjunction with the first two, does provide such a basis. 

[6] The first contact is the cease and desist letter that

LICRA sent to Yahoo!, demanding that Yahoo! alter its

behavior in California to conform to what LICRA contended

were the commands of French law. A cease and desist letter

is not in and of itself sufficient to establish personal jurisdiction over the sender of the letter. Red Wing Shoe Co. v.

Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir.

1998) (“A patentee should not subject itself to personal jurisdiction in a forum solely by informing a party who happens

to be located there of suspected infringement.”). There are

strong policy reasons to encourage cease and desist letters.

They are normally used to warn an alleged rights infringer

that its conduct, if continued, will be challenged in a legal

proceeding, and to facilitate resolution of a dispute without

resort to litigation. If the price of sending a cease and desist

letter is that the sender thereby subjects itself to jurisdiction

in the forum of the alleged rights infringer, the rights holder

will be strongly encouraged to file suit in its home forum

without attempting first to resolve the dispute informally by

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 423
means of a letter. See Red Wing Shoe, 148 F.3d at 1360-1361;

Cascade Corp. v. Hiab-Foco AB, 619 F.2d 36, 38 (9th Cir.

1980); Douglas Furniture Co. of Cal., Inc. v. Wood Dimensions, Inc., 963 F. Supp. 899, 903 (C.D. Cal. 1997) (“If any

attempt by an intellectual property holder to put an alleged

wrongdoer on notice forced the property holder to submit to

the jurisdiction of the alleged wrongdoer’s forum, an intellectual property owner would be forced to file an action in his

own jurisdiction in order to avoid the threat of being haled

before a court in another, possibly distant state.”). 

This is not to say that a cease and desist letter can never be

the basis for personal jurisdiction. For example, in Bancroft

& Masters, we upheld jurisdiction based on two letters sent

by Augusta National Inc. (“ANI”), based in Georgia, contending that Bancroft & Masters, Inc. (“B & M”) was improperly

using its domain name. One letter was sent to Network Solutions, Inc. (“NSI”) in Virginia. NSI was then the sole registrar

of domain names. The other, a cease and desist letter, was

sent to B & M at its corporate offices in California. B & M

sued ANI in federal district court in California seeking a

declaratory judgment that it had the right to the disputed

domain name. On the assumption that B & M’s factual allegation was true, we held that the letters were intended to trigger

NSI’s dispute resolution procedures, to interfere wrongfully

with B & M’s use of its domain name, and to misappropriate

that name for ANI’s own use. 223 F.3d at 1087. We therefore

upheld jurisdiction under Calder based on the letters. 

[7] LICRA’s letter was not used to facilitate settlement.

Although it stated that LICRA would file suit in eight days if

Yahoo! had not complied with LICRA’s demands, LICRA

filed suit five days after the date of the letter. Nonetheless,

LICRA’s letter to Yahoo! was more like a normal cease and

desist letter than the letters at issue in Bancroft & Masters, for

it was not abusive, tortious or otherwise wrongful. Rather, it

simply alerted Yahoo! to its view of French law and stated its

intent to file suit in France to enforce that law against Yahoo!.

424 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Under these circumstances, we do not believe that LICRA’s

letter is a contact that would, if considered alone, justify the

exercise of personal jurisdiction. 

[8] LICRA and UEJF’s second contact (or, more precisely,

set of contacts) with California was service of process on

Yahoo! in California. LICRA first effected service of process

to commence the French suit. LICRA and UEJF later effected

service of the French court’s two interim orders. We do not

regard the service of documents in connection with a suit

brought in a foreign court as contacts that by themselves justify the exercise of personal jurisdiction over a foreign litigant

in a United States court. If we were to hold that such service

were a sufficient basis for jurisdiction, we would be providing

a forum-choice tool by which any United States resident sued

in a foreign country and served in the United States could

bring suit in the United States, regardless of any other basis

for jurisdiction. We are unaware of any case so holding, and

Yahoo! has cited none. 

[9] Third, and most important, LICRA and UEJF have

obtained two interim orders from the French court directing

Yahoo! to take actions in California, on threat of a substantial

penalty. We agree with LICRA and UEJF that the French

court’s orders are appropriately analyzed under the Calder

effects test. 

[10] The first two requirements are that LICRA and UEJF

“have ‘(1) committed an intentional act, [which was] (2)

expressly aimed at the forum state[.]’ ” Schwarzenegger, 374

F.3d at 805 (quoting Dole Food, 303 F.3d at 1111). It is obvious that both requirements are satisfied. LICRA intentionally

filed suit in the French court. Indeed, it had previously signaled its intent to file suit in its April 5 letter to Yahoo!. UEJF

intentionally joined LICRA’s suit ten days later. Further,

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. It is of

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 425
course true that the effect desired by the French court would

be felt in France, but that does not change the fact that significant acts were to be performed in California. The servers that

support yahoo.com are located in California, and compliance

with the French court’s orders necessarily would require

Yahoo! to make some changes to those servers. Further, to the

extent that any financial penalty might be imposed pursuant

to the French court’s orders, the impact of that penalty would

be felt by Yahoo! at its corporate headquarters in California.

See Dole Food, 303 F.3d at 1113-14. 

[11] The third requirement is that LICRA and UEJF’s acts

“ ‘caus[e] harm that the defendant knows is likely to be suffered in the forum state.’ ” Id. This requirement is somewhat

problematic, for Yahoo! has not shown or even alleged any

specific way in which it has altered its behavior in response

to the French court’s interim orders. Yahoo! changed its policy with respect to Yahoo.com after the French court’s orders

were entered, but Yahoo! has consistently maintained that the

change was unrelated to the orders. Therefore, even if we

were persuaded that Yahoo!’s change of policy harmed it in

some way, Yahoo! itself has represented that such harm was

not caused by any action of LICRA or UEJF. Nor is it clear

that, absent the interim orders, Yahoo! would change its policy in the future. Indeed, Yahoo! represented to us during oral

argument that there is nothing that it would like to do, but is

now refraining from doing, because of the interim orders. 

Yahoo!, however, points to the possibility that a substantial

penalty will be assessed under the French court’s November

20 interim order. It points in particular to the provision in that

order specifying that the potential amount of the penalty

increases by 100,000 Francs for every day that Yahoo! is in

violation of the court’s orders. Yahoo! represents to us that

even now, after its change of policy, it is acting in plain violation of the orders. It contends that a declaratory judgment

determining the enforceability by an American court of the

French court’s orders will allow it to determine an appropriate

426 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
course of conduct with respect to the activities in which it

continues to engage. The district court found that, notwithstanding its new policy, 

the Yahoo.com auction site still offers certain items

for sale (such as stamps, coins, and a copy of Mein

Kampf) which appear to violate the French Order.

While Yahoo! has removed the Protocol of the

Elders of Zion from its auction site, it has not prevented access to numerous other sites which reasonably “may be construed as constituting an apology

for Nazism or a contesting of Nazi crimes.” 

169 F. Supp. 2d at 1185 (emphasis added). 

In both this court and the district court, LICRA and UEJF

have represented that, in their view, Yahoo! is in what they

call “substantial compliance” with the French court’s orders.

They have further represented that they will not seek enforcement of the penalty provision if Yahoo! continues its present

level of compliance with the orders. However, LICRA and

UEJF have stopped short of making a binding contractual

commitment that they will not enforce the orders, and they

have taken no action to have the orders withdrawn. As their

counsel made clear at oral argument, LICRA and UEJF want

to be able to return to the French court for enforcement if

Yahoo! returns to its “old ways.” For its part, while Yahoo!

does not independently wish to take steps to comply more

fully with the French court’s orders, it states that it fears that

it may be subject to a substantial (and increasing) fine if it

does not. Yahoo! maintains that in these circumstances it has

a legally cognizable interest in knowing whether the French

court’s orders are enforceable in this country. 

In a specific jurisdiction inquiry, we consider the extent of

the defendant’s contacts with the forum and the degree to

which the plaintiff’s suit is related to those contacts. A strong

showing on one axis will permit a lesser showing on the other.

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 427
A single forum state contact can support jurisdiction if “the

cause of action . . . arise[s] out of that particular purposeful

contact of the defendant with the forum state.” See Lake, 817

F.2d at 1421. The case before us is the classic polar case for

specific jurisdiction described in International Shoe, in which

there are very few contacts but in which those few contacts

are directly related to the suit. See 326 U.S. at 318 (“[S]ome

single or occasional acts of the corporate agent in a state . . .

because of their nature and quality and the circumstances of

their commission, may be deemed sufficient to render the corporation liable to suit.”). All of the contacts with the forum

state in this case are either the interim orders themselves or

contacts directly related to those orders. 

LICRA and UEJF have not sought enforcement of the

French court’s orders in this country, and they have stated that

they will not seek enforcement or penalties so long as Yahoo!

continues its current course of conduct. However, LICRA and

UEJF have not sought to vacate the French court’s orders, and

it is at least possible that they might later seek enforcement

based on a continuation of Yahoo!’s current conduct. Or more

likely, they might seek enforcement if Yahoo! changes it conduct in the future. But even if LICRA and UEJF seek enforcement at some time in the future, and even if the French court

finds a violation that warrants the imposition of a penalty,

enforcement of that penalty is extremely unlikely in the

United States. Enforcement is unlikely not because of the

First Amendment, but rather because of the general principle

of comity under which American courts do not enforce monetary fines or penalties awarded by foreign courts. 

Finally, Yahoo! contends that it has a legally protected

interest, based on the First Amendment, in continuing its current policy with respect to Nazi memorabilia and Holocaustrelated anti-semitic materials. Until that contention is

endorsed by the judgment of an American court, it is only a

contention. But even if the French court’s orders are not

enforced against Yahoo!, the very existence of those orders

428 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
may be thought to cast a shadow on the legality of Yahoo!’s

current policy. 

[12] It is a close question whether LICRA and UEJF are

subject to personal jurisdiction in California in this suit. But

considering the direct relationship between LICRA and

UEJF’s contacts with the forum and the substance of the suit

brought by Yahoo!, as well as the impact and potential impact

of the French court’s orders on Yahoo!, we hold that there is

personal jurisdiction. 

III. Ripeness

Because we conclude that the exercise of personal jurisdiction over LICRA and UEJF is proper, we turn to the question

of ripeness. Ripeness doctrine is “ ‘drawn both from Article

III limitations on judicial power and from prudential reasons

for refusing to exercise jurisdiction.’ ” Nat’l Park Hospitality

Ass’n v. DOI, 538 U.S. 803, 808 (2003) (quoting Reno v.

Catholic Social Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).

Even where jurisdiction is present in the Article III sense,

courts are obliged to dismiss a case when considerations of

prudential ripeness are not satisfied. Socialist Labor Party v.

Gilligan, 406 U.S. 583, 588 (1972) (“Problems of prematurity

and abstractness may well present ‘insuperable obstacles’ to

the exercise of the Court’s jurisdiction, even though that jurisdiction is technically present.”) (citing Rescue Army v. Municipal Court, 331 U.S. 549, 574 (1947)). 

The existence of Article III subject matter jurisdiction is,

like personal jurisdiction, a close question, but we agree with

the district court that the effect of the French court’s orders

on Yahoo! is sufficient to create a case or controversy within

the meaning of Article III. See 169 F. Supp. 2d at 1187-91.

However, we disagree with the district court’s conclusion that

there is prudential ripeness. In its current form, this case presents the sort of “[p]roblems of prematurity and abstractness”

that counsel against reaching the First Amendment question

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 429
that Yahoo! insists is presented by this case. See Socialist

Labor Party, 406 U.S. at 588. 

In determining whether a case satisfies prudential requirements for ripeness, we consider two factors: “the fitness of the

issues for judicial decision,” and “the hardship to the parties

of withholding court consideration.” Abbott Labs. v. Gardner,

387 U.S. 136, 149 (1967); Pac. Gas & Elec. Co. v. State

Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,

201 (1983) (quoting Abbott Labs.). We address these two factors in turn. 

A. Fitness of the Issue for Judicial Decision

1. The Substantive Legal Question at Issue

[13] Whether a dispute is sufficiently ripe to be fit for judicial decision depends not only on the state of the factual

record. It depends also on the substantive legal question to be

decided. If the legal question is straightforward, relatively little factual development may be necessary. As we wrote in

San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121,

1132 (9th Cir. 1996), “[P]ure legal questions that require little

factual development are more likely to be ripe.” By contrast,

if the legal question depends on numerous factors for its resolution, extensive factual development may be necessary. 

A noted example is Adler v. Bd. of Educ., 342 U.S. 485

(1952), in which Justice Frankfurter disagreed with the other

justices about the precise legal question presented, and, as a

consequence, disagreed about ripeness. Because the legal

question, as Justice Frankfurter understood it, required finegrained and subtle judgments based on extensive factual

development, he concluded that the suit was not ripe. Id. at

506-07 (Frankfurter, J., dissenting). In the view of the other

justices, however, the legal question was different. In their

view, this different legal question was relatively simple,

requiring little factual development. For them (and for this

430 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
different legal question), the suit was ripe. Id. at 492-93 (maj.

op.); 508-09 (Douglas, J., dissenting). See Fritz W. Scharpf,

Judicial Review and the Political Question: A Functional

Analysis, 75 Yale L.J. 517, 532 (1966). See also United Public Workers v. Mitchell, 330 U.S. 75, 90-91 (1947) (dismissing suit as unripe); id. at 109 (Black, J., dissenting); id. at

116-17 (Douglas, J., dissenting). 

[14] It is thus important to a ripeness analysis that we specify the precise legal question to be answered. Depending on

the legal question, the case may be ripe or unripe. If we ask

the wrong legal question, we risk getting the wrong answer to

the ripeness question. The legal question presented by this

case is whether the two interim orders of the French court are

enforceable in this country. These orders, by their explicit

terms, require only that Yahoo! restrict access by Internet

users located in France. The orders say nothing whatsoever

about restricting access by Internet users in the United States.

We are asked to decide whether enforcement of these interim

orders would be “repugnant” to California public policy. 

[15] There is currently no federal statute governing recognition of foreign judgments in the federal courts. See American Law Institute, Recognition and Enforcement of Foreign

Judgments: Analysis and Proposed Federal Statute (April 11,

2005) (proposed final draft). The federal full faith and credit

statute, 28 U.S.C. § 1738, governs only judgments rendered

by courts of states within the United States. In diversity cases,

enforceability of judgments of courts of other countries is

generally governed by the law of the state in which enforcement is sought. Bank of Montreal v. Kough, 612 F.2d 467,

469-70 (9th Cir. 1980); see also Southwest Livestock &

Trucking Co. v. Ramon, 169 F.3d 317, 320 (5th Cir. 1999);

Choi v. Kim, 50 F.3d 244, 248 (3d Cir. 1995); S.A. Andes v.

Versant Corp., 878 F.2d 147, 150 (4th Cir. 1989); Ingersoll

Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir.

1987); Branca v. Security Benefit Life Ins. Co., 773 F.2d

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 431
1158, 1161 (11th Cir. 1985). This is a diversity suit, brought

by Yahoo! in federal district court in California. 

In a typical enforcement case, the party in whose favor the

foreign judgment was granted comes to an American court

affirmatively seeking enforcement. The standard rule in such

a case is that the federal court sitting in diversity applies the

law of the state in which it sits. However, this is not the typical case, for the successful plaintiffs in the French court do

not seek enforcement. Rather, Yahoo!, the unsuccessful

defendant in France, seeks a declaratory judgment that the

French court’s interim orders are unenforceable anywhere in

this country. 

[16] Insofar as the issue is whether the French court’s

orders are enforceable in California, it is clear that California

law governs. However, it is less clear whose law governs

when enforceability in other states is at issue. This is a potentially difficult choice-of-law question, but we do not need to

answer it in order to decide ripeness. First, the central issue

is enforceability in California. Therefore, if the suit is unripe

under California law, we should not decide the case, irrespective of whether it might be ripe under the law of some other

state. To do otherwise would be to allow the tail to wag the

dog. Second, in any event, the law of virtually all other states

appears to be similar, or even identical, to California law. We

may thus safely proceed with our ripeness analysis based on

the California law of enforceability. 

California, along with many other states, has adopted the

Uniform Foreign Money-Judgments Recognition Act

(“Uniform Act” or “Act”). Cal. Civ. Proc. Code §§ 1713-

1713.8. The relevant standard for enforceability under the Act

is whether “the cause of action or defense on which the judgment is based is repugnant to the public policy of this state.”

Id. § 1713.4(b)(3) (emphasis added). However, the Act is not

directly applicable to this case, for it does not authorize

enforcement of injunctions. See id. § 1713.1(2) (“ ‘Foreign

432 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
judgment’ means any judgment of a foreign state granting or

denying recovery of a sum of money, other than . . . a fine or

other penalty[.]”) But neither does the Uniform Act prevent

enforcement of injunctions, for its savings clause specifies

that the Act does not foreclose enforcement of foreign judgments “in situations not covered by [the Act].” Id. § 1713.7.

Because the Uniform Act does not cover injunctions, we

look to general principles of comity followed by the California courts. We may appropriately consult the Restatement

(Third) of the Foreign Relations Law of the United States

(“Third Restatement” or “Restatement”), given that California

courts frequently cite the Restatement, as well as earlier

Restatements, as sources of law. See, e.g., Renoir v. Redstar

Corp., 123 Cal. App. 4th 1145, 1150 (2004) (Third Restatement); American Home Assurance Co. v. Société Commerciale Toutélectric, 104 Cal. App. 4th 406, 424 (2003) (same);

Smith v. Hopland Band of Pomo Indians, 95 Cal. App. 4th 1,

10 (2002) (same); Pecaflor Construction, Inc. v. Landes, 198

Cal. App. 3d 342, 349 (1988) (Second Restatement). The general principle of enforceability under the Third Restatement is

the same as under California’s Uniform Act. That is, an

American court will not enforce a judgment if “the cause of

action on which the judgment was based, or the judgment

itself, is repugnant to the public policy of the United States or

of the State where recognition is sought[.]” Restatement

§ 482(2)(d) (emphasis added); see also Restatement (Second)

of the Conflict of Laws § 117 cmt. c (1971) (“[E]nforcement

will usually be accorded [a] judgment [of a foreign court]

except in situations where the original claim is repugnant to

fundamental notions of what is decent and just in the State

where enforcement is sought.”) (emphasis added). 

There is very little case law in California dealing with

enforceability of foreign country injunctions under general

principles of comity, but that law is consistent with the repugnancy standard of the Restatement. We have found only one

case in which a California court has ruled on the enforceabilYAHOO! INC. v. LA LIGUE CONTRE LE RACISME 433
ity of an injunction granted in another country. In In re Stephanie M., 7 Cal. 4th 295 (1994), a Mexican court had entered

a guardianship decree purporting to authorize the named

guardian to take immediate custody of a child and to return

her to Mexico. The California Supreme Court recognized that

an injunction could be enforced by the California courts as a

matter of comity, but it declined to order enforcement in this

particular case because the Mexican decree conflicted with

California public policy. Id. at 314. 

[17] California courts have also relied on public policy in

the analogous context of injunctions entered by other American courts. In Smith v. Superior Court, 41 Cal. App. 4th 1014

(1996), plaintiff Smith had been badly injured, and her husband and two children killed, when their General Motors

(“GM”) vehicle burst into flames after a collision. Smith

brought a product liability suit in California against GM.

Elwell had been an engineer for GM for many years and had

extensive knowledge about the design of GM vehicles. An

earlier wrongful termination suit between Elwell and GM in

Michigan had been dismissed after the parties stipulated to a

permanent injunction forbidding Elwell from testifying in any

suit about GM vehicles. Smith sought to call Elwell as an

expert witness in her California suit. The California Court of

Appeal declined to enforce the Michigan injunction on the

ground that it “blatantly and irreconcilably conflicts with our

fundamental public policy against the suppression of evidence.” Id. at 1025; see also Baker v. General Motors Corp.,

522 U.S. 222 (1998) (Missouri state court not required by 28

U.S.C. § 1738 to enforce the same Michigan injunction

against Elwell when such enforcement would violate Missouri

public policy). 

The repugnancy standard is also generally followed in

states other than California. See, e.g., Hilkmann v. Hilkmann,

579 Pa. 563, 575 (2004) (observing that the Restatement’s

repugnancy standard has been incorporated into Pennsylvania

common law); Alberta Sec. Comm’n v. Ryckman, 200 Ariz.

434 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
540, 549 (2001) (stating that foreign judgments are not

enforceable under Arizona common law if they are repugnant

to public policy); Panama Processes, S.A. v. Cities Serv. Co.,

796 P.2d 276, 283 (Okla. 1990) (declaring that a judgment

must not be enforced if repugnant to public policy); Greschler

v. Greschler, 51 N.Y.2d 368, 377 (1980) (“[T]he public policy exception to the doctrine of comity is usually invoked . . .

when the original claim is repugnant to fundamental notions

of what is decent and just in the State where enforcement is

sought.”) (internal quotation omitted). Further, federal courts

sometimes cite general principles of comity without reference

to particular state laws. See, e.g., Jaffe v. Accredited Sur. &

Cas. Co., 294 F.3d 584, 593 (4th Cir. 2002) (declaring that a

judgment will not be enforced if repugnant to public policy);

In re Schimmelpennick, 183 F.3d 347, 365 (5th Cir. 1999) (to

be enforceable, “foreign laws need not be identical to . . . the

laws of the United States; they merely must not be repugnant

to our laws and policies”); Turner Entertainment Co. v.

Degeto Film GmbH, 25 F.3d 1512, 1519 (11th Cir. 1994)

(“General comity concerns include . . . whether the foreign

judgment is prejudicial, in the sense of violating American

public policy because it is repugnant to fundamental principles of what is decent and just.”); see also Hilton v. Guyot,

159 U.S. 113 (1895) (discussing principles of comity governing enforcement of foreign judgments). 

[18] Under the repugnancy standard, American courts

sometimes enforce judgments that conflict with American

public policy or are based on foreign law that differs substantially from American state or federal law. See, e.g., In re

Hashim, 213 F.3d 1169, 1172 (9th Cir. 2000) (reversing bankruptcy court’s refusal to enforce English court’s award of $10

million in costs against debtors whose assets had been frozen

by Saddam Hussein); Milhoux v. Linder, 902 P.2d 856, 861-

62 (Colo. Ct. App. 1995) (affirming recognition of Belgian

judgment as a matter of comity, even though it was based on

a 30-year Belgian statute of limitations). Inconsistency with

American law is not necessarily enough to prevent recogniYAHOO! INC. v. LA LIGUE CONTRE LE RACISME 435
tion and enforcement of a foreign judgment in the United

States. The foreign judgment must be, in addition, repugnant

to public policy. 

2. Fitness of the Question for Judicial Decision

[19] With the suit in its current state, it is difficult to know

whether enforcement of the French court’s interim orders

would be repugnant to California public policy. The first difficulty is evident. As indicated by the label “interim,” the

French court contemplated that it might enter later orders. We

cannot know whether it might modify these “interim” orders

before any attempt is made to enforce them in the United

States. 

A second, more important, difficulty is that we do not know

whether the French court would hold that Yahoo! is now violating its two interim orders. After the French court entered

the orders, Yahoo! voluntarily changed its policy to comply

with them, at least to some extent. There is some reason to

believe that the French court will not insist on full and literal

compliance with its interim orders, and that Yahoo!’s changed

policy may amount to sufficient compliance. 

In its interim second order, entered on November 20, the

French court found that Yahoo! France had “complied in

large measure with the spirit and letter” of its May 22 order.

(Emphasis added.) Based on that level of compliance, the

French court was satisfied. It declined to enter any further

orders against Yahoo! France. It also declined to award any

expenses or costs against Yahoo! France, even though in that

same order it awarded expenses and costs against Yahoo!. We

thus know from this second order that compliance “in large

measure” by Yahoo! is very likely to be satisfactory to the

French court, just as compliance “in large measure” by

Yahoo! France was satisfactory. 

LICRA and UEJF insist that Yahoo! has now, in their

words, “substantially complied” with the French court’s

436 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
orders. We take this to be a statement that, in their view,

Yahoo! has complied “in large measure” with the orders. For

its part, however, Yahoo! insists that it continues to be in serious violation of the orders. The district court did not hold that

Yahoo! is in violation, substantial or otherwise, of the French

court’s orders. It wrote only that Yahoo! does not “appear” to

be in full compliance with the French court’s order with

respect to its auction site, and that various anti-semitic sites

continue to be accessible through yahoo.com. 169 F. Supp. 2d

at 1185. There is only one court that can authoritatively tell

us whether Yahoo! has now complied “in large measure” with

the French court’s interim orders. That is, of course, the

French court. 

To the extent that we are uncertain about whether Yahoo!

has complied “in large measure” with the French court’s

orders, the responsibility for that uncertainty can be laid at

Yahoo!’s door. In its November 20 interim order, the French

court ordered the appointment of one of the experts who had

previously reported on the technical feasibility of restricting

access by French users to Yahoo.com. Under the November

20 order, Yahoo! was required to pay the expert, who would

be charged “to undertake an assignment to prepare a consultancy report on the conditions of fulfilment of the terms of the

aforementioned order.” Yahoo! has placed nothing in the

record to tell us whether Yahoo! has paid the expert; whether

the expert has prepared a report for the French court; and, if

a report has been prepared, what it says. There is also nothing

in the record to indicate what other steps, if any, Yahoo! has

taken to obtain an indication from the French court whether

it believes that Yahoo! is in compliance, “in large measure”

or otherwise, with the terms of its interim orders. All we

know for certain is that Yahoo! abandoned its appeal of the

May 22 interim order and declined to appeal the November 20

interim order, and that on December 21, a month and a day

after entry of the second interim order, it came home to file

suit in the Northern District of California. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 437
[20] A third difficulty is related to the second. Because we

do not know whether Yahoo! has complied “in large measure” with the French court’s orders, we cannot know what

effect, if any, compliance with the French court’s orders

would have on Yahoo!’s protected speech-related activities.

We emphasize that the French court’s orders require, by their

terms, only a limitation on access to anti-semitic materials by

users located in France. The orders do not by their terms limit

access by users outside France in any way. Yahoo! contended

in the French court that it was technically too difficult to distinguish between users inside and outside France. As

described above, the French court commissioned a report by

three experts to determine if Yahoo!’s contention were true.

The experts disagreed with Yahoo!, concluding that Yahoo!

is readily able to distinguish between most users inside and

outside France. 

With respect to users seeking access to forbidden auction

sites, two out of the three experts concluded that Yahoo!

could identify almost 90% of its users located in France. The

third expert did not dispute that 70% of such auction site users

could be identified, but expressed doubt about how many

additional such users could be identified. With respect to

users seeking access to sites of Holocaust deniers and Nazi

apologists, the experts declined to propose any solution by

which a greater number than 70% of users located in France

could be identified. 

In its briefing to this court, Yahoo! contends that restricting

access by French Internet users in a manner sufficient to satisfy the French court would in some unspecified fashion

require Yahoo! simultaneously to restrict access by Internet

users in the United States. This may or may not be true. It is

almost certainly not true if Yahoo! is now complying “in large

measure” with the French court’s orders, for in that event the

French court will almost certainly hold that no further compliance is necessary. Even if the measures Yahoo! has already

taken restrict access by American Internet users to anti438 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
semitic materials, this has no bearing on Yahoo!’s First

Amendment argument. By its own admission, Yahoo! has

taken these measures entirely of its own volition, for reasons

entirely independent of the French court’s orders. 

However, it is possible, as Yahoo! contends, that it has not

complied “in large measure” with the French court orders, and

that the French court would require further compliance. It is

also possible, as Yahoo! contends, that further compliance

might have the necessary consequence of requiring Yahoo! to

restrict access by American Internet users. But Yahoo! has

been vague in telling us in what ways, and for what reasons,

it believes further compliance might have that consequence.

One possible reason for Yahoo!’s vagueness might be that its

contention is ill-founded, and that a detailed explanation

would reveal that fact. We are not now in a position to judge

this. Another, more important, reason — not merely a possible reason — for its vagueness is that Yahoo! has no way of

knowing what further compliance might be required by the

French court. Until it knows what further compliance (if any)

the French court will require, Yahoo! simply cannot know

what effect (if any) further compliance might have on access

by American users. 

The possible — but at this point highly speculative —

impact of further compliance with the French court’s orders

on access by American users would be highly relevant to the

question whether enforcement of the orders would be repugnant to California public policy. But we cannot get to that

question without knowing whether the French court would

find that Yahoo! has already complied “in large measure,” for

only on a finding of current noncompliance would the issue

of further compliance, and possible impact on American

users, arise. 

[21] Without a finding that further compliance with the

French court’s orders would necessarily result in restrictions

on access by users in the United States, the only question in

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 439
this case is whether California public policy and the First

Amendment require unrestricted access by Internet users in

France. In other words, the only question would involve a

determination whether the First Amendment has extraterritorial application. The extent of First Amendment protection of

speech accessible solely by those outside the United States is

a difficult and, to some degree, unresolved issue. Compare,

e.g., Desai v. Hersh, 719 F. Supp. 670, 676 (N.D. Ill. 1989)

(“[F]or purposes of suits brought in the United States courts,

first amendment protections do not apply to all extraterritorial

publications by persons under the protections of the Constitution.”), and Laker Airways Ltd. v. Pan American Airways,

Inc., 604 F. Supp. 280, 287 (D.D.C. 1984) (“It is less clear,

however, whether even American citizens are protected specifically by the First Amendment with respect to their activities abroad[.]”), with Bullfrog Films, Inc. v. Wick, 646 F.

Supp. 492, 502 (C.D. Cal. 1986) (“[T]here can be no question

that, in the absence of some overriding governmental interest

such as national security, the First Amendment protects communications with foreign audiences to the same extent as

communications within our borders.”), aff’d, 847 F.2d 502

(9th Cir. 1988). 

[22] We are thus uncertain about whether, or in what form,

a First Amendment question might be presented to us. If the

French court were to hold that Yahoo!’s voluntary change of

policy has already brought it into compliance with its interim

orders “in large measure,” no First Amendment question

would be presented at all. Further, if the French court were to

require additional compliance with respect to users in France,

but that additional compliance would not require any restriction on access by users in the United States, Yahoo! would

only be asserting a right to extraterritorial application of the

First Amendment. Finally, if the French court were to require

additional compliance with respect to users in France, and that

additional compliance would have the necessary consequence

of restricting access by users in the United States, Yahoo!

would have both a domestic and an extraterritorial First

440 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Amendment argument. The legal analysis of these different

questions is different, and the answers are likely to be different as well. 

B. Hardship to the Parties

We next consider “the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149. As

discussed above, we believe that Yahoo! has suffered sufficient harm to justify (though not by a wide margin) the exercise of personal jurisdiction over LICRA and UEJF. The

threshold requirement for hardship for purposes of personal

jurisdiction, however, is not necessarily the same as the

threshold for purposes of prudential ripeness. Particularly

where, as here, there are substantial uncertainties bearing on

the legal analysis to be performed, there is a high threshold

requirement for hardship. 

Yahoo! contends that it will suffer real hardship if we do

not decide its suit at this time. Yahoo! makes essentially two

arguments. First, it argues that the potential monetary penalty

under the French court’s orders is mounting every day, and

that the enforcement of a penalty against it here could be

extremely onerous. Second, it argues that the French court’s

orders substantially limit speech that is protected by the First

Amendment. We take these arguments in turn. 

1. Enforceability of the Monetary Penalty

Yahoo! contends that the threat of a monetary penalty

hangs like the sword of Damocles. However, it is exceedingly

unlikely that the sword will ever fall. 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 French court’s orders threaten monetary sanctions against

Yahoo!, which that court explicitly labels “penalties.” In order

to obtain an award of a penalty from the French court, LICRA

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 441
and UEJF would have to return to the French court, to explain

to the French court why they believe Yahoo! has violated its

interim orders, and to persuade the French court that Yahoo!’s

violation merits the imposition of a penalty. In the nearly five

years since the entry of the French court’s second interim

order and Yahoo!’s change of policy, LICRA and UEJF have

taken none of these steps. Further, LICRA and UEJF have

represented that they have no intention of seeking a monetary

penalty by the French court so long as Yahoo! does not revert

to its “old ways.” 

[23] More important, even if the French court were to

impose a monetary penalty against Yahoo!, it is exceedingly

unlikely that any court in California — or indeed elsewhere

in the United States — would enforce it. California’s Uniform

Act does not authorize enforcement of “fines or other penalties.” Cal. Civ. Proc. Code § 1713.1(2). The Act includes a

savings clause, see Cal. Civ. Proc. Code § 1713.7, but the fine

is equally unenforceable under California common law doctrine. 

California courts follow the generally-observed rule that,

“ ‘[u]nless required to do so by treaty, no state [i.e., country]

enforces the penal judgments of other states [i.e., countries].’ ” In re Manuel P., 215 Cal. App. 3d 48, 81 (1989)

(Wiener, J., dissenting) (quoting Restatement § 483 cmt. 3);

see also In re Marriage of Gray, 204 Cal. App. 3d 1239, 1253

(1988). This is consistent with the Restatement’s declaration

that “[c]ourts in the United States are not required . . . to

enforce judgments [from foreign countries] for the collection

of . . . fines[ ] or other penalties.” Restatement § 483; see also

30 Am. Jur. 2d Execution and Enforcement of Judgments

§ 846 (2004) (“Courts in the United States will not recognize

or enforce a penal judgment rendered in another nation.”). A

number of states have adopted an identical version of California’s Uniform Act, see Enforcing Foreign Judgments in the

United States and United States Judgments Abroad 28-32

(Ronald A. Brand ed., 1992), and the common law rule

442 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
against the enforcement of penal judgments is venerable and

widely-recognized. See Huntington v. Attrill, 146 U.S. 657,

673-74 (1892); see also 18 James Wm. Moore et al., Moore’s

Federal Practice § 130.05 (2002). 

Penal judgments are those intended “ ‘to punish an offense

against the public justice of the [foreign] state[.]’ ” Chavarria

v. Superior Court, 40 Cal. App. 3d 1073, 1077 (1974) (quoting Huntington, 146 U.S. at 673-74). The test to determine a

judgment’s nature 

is not by what name the statute [on which the judgment is based] is called by the legislature or the

courts of the State in which it was passed, but

whether it appears to the tribunal which is called

upon to enforce it to be, in its essential character and

effect, a punishment of an offense against the public,

or a grant of a civil right to a private person. 

Huntington, 146 U.S. at 682. 

There are a number of indications that the French judgments are penal in nature. First, the word used by the French

court (“astreinte”) is consistently translated as “penalty” in the

record in this case. For example, the May 22 order provides

that Yahoo! and Yahoo! France are “subject to a penalty of

100,000 Euros per day of delay and per confirmed violation[.]” The November 20 order provides that Yahoo! is “subject to a penalty of 100,000 Francs per day of delay[.]” 

Second, the French court held that Yahoo! was violating

Section R645-1 of the French Penal Code, which declares it

a “crime” to exhibit or display Nazi emblems, and which prescribes a set of “criminal penalties,” including fines. Fr. C.

Pén. § R645-1, translation available at http://www.lex2k.org/

yahoo/art645.pdf. The monetary penalties against Yahoo! do

not lose their character as “penalties” simply because they

were obtained in a civil action. See Wisconsin v. Pelican Ins.

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 443
Co., 127 U.S. 265, 299 (1888). Nor do they lose their character because private litigants initiated the action. A civil remedy is penal, as the term is understood in private international

law, if it awards a penalty “to a member of the public, suing

in the interest of the whole community to redress a public

wrong.” Weiss v. Glemp, 792 F. Supp. 215, 227 (S.D.N.Y.

1992); see also Loucks v. Standard Oil Co., 224 N.Y. 99, 101

(1918) (Cardozo, J.). In short, the label “civil” does not strip

a remedy of its penal nature. Thus, for example, an American

court is not required to enforce an order of contempt or an

award of punitive damages in a civil action. Cf. Frank v.

Reese, 594 S.W.2d 119, 121 (Tex. Civ. App. 1979) (“Other

jurisdictions are reluctant to give full faith and credit to an

order for contempt due to its punitive nature[.]”); Republic of

Philippines v. Westinghouse Elec. Corp., 821 F. Supp. 292,

295 (D.N.J. 1992) (refusing to enforce Philippine law providing for punitive damages); see also Third Restatement § 483

cmt. b (“Some states consider judgments penal for purposes

of non-recognition if multiple, punitive, or exemplary damages are awarded, even when no governmental agency is a

party.”). 

Third, the penalties the French court imposed on Yahoo!

are primarily designed to deter Yahoo! from creating, in the

words of the November 20 order, “a threat to internal public

order.” The penalties are payable to the government and not

designed to compensate the French student groups for losses

suffered. See Farmers & Merchants Trust Co. v. Madeira,

261 Cal. App. 2d 503, 510 (1968) (suggesting that a judgment

is penal if it is designed to punish a defendant “for an offense

committed against the public justice” of the jurisdiction).

Judgments designed to deter conduct that constitutes a threat

to the public order are typically penal in nature. Cf. Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 168 (1963). 

The French court awarded nominal damages of one Franc

to LICRA and UEJF in its first (but not its second) order. Balanced against the far more substantial penalties payable to the

444 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
government (up to 100,000 Francs per day under the second

order), this award of one Franc cannot render the orders primarily remedial rather than punitive in nature. See Ducharme

v. Hunnewell, 411 Mass. 711, 714 (1992) (determining that

whether a judgment requires enforcement “depends on

whether its purpose is remedial in nature, affording a private

remedy to an injured person, or penal in nature, punishing an

offense against the public justice”). Even the “restitution” the

court ordered — the printing of its judgment in publications

of UEJF’s and LICRA’s choosing — benefits the general

public and does not specifically compensate the two student

groups for a particular injury. 

2. First Amendment

[24] Yahoo! argues that any restriction on speech and

speech-related activities resulting from the French court’s

orders is a substantial harm under the First Amendment. We

are acutely aware that this case implicates the First Amendment, and we are particularly sensitive to the harm that may

result from chilling effects on protected speech or expressive

conduct. In this case, however, the harm to First Amendment

interests — if such harm exists at all — may be nowhere near

as great as Yahoo! would have us believe. Yahoo! has taken

pains to tell us that its adoption of a new hate speech policy

after the entry of the French court’s interim orders was motivated by considerations independent of those orders. Further,

Yahoo! refuses to point to anything that it is now not doing

but would do if permitted by the orders. In other words,

Yahoo! itself has told us that there is no First Amendment

violation with respect either to its previous (but now abandoned) speech-related activities, or to its future (but not currently engaged in) speech-related activities. Any restraint on

such activities is entirely voluntary and self-imposed. 

The only potential First Amendment violation comes from

the restriction imposed by the interim orders — if indeed they

impose any restrictions — on the speech-related activities in

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 445
which Yahoo! is now engaged, and which might be restricted

if further compliance with the French court’s orders is

required. For example, Yahoo! continues to allow auctions of

copies of Mein Kampf, and it maintains that the French

court’s orders prohibit it from doing so. The French court

might find that Yahoo! has not yet complied “in large measure” with its orders, and that Yahoo! is prohibited by its

orders from allowing auctions of copies of Mein Kampf. 

Even if the French court took this step, Yahoo!’s claim to

First Amendment protection would be limited. We emphasize

that the French court’s interim orders do not by their terms

require Yahoo! to restrict access by Internet users in the

United States. They only require it to restrict access by users

located in France. That is, with respect to the Mein Kampf

example, the French court’s orders — even if further compliance is required — would by their terms only prohibit Yahoo!

from allowing auctions of copies of Mein Kampf to users in

France. 

The core of Yahoo!’s hardship argument may thus be that

it has a First Amendment interest in allowing access by users

in France. Yet under French criminal law, Internet service

providers are forbidden to permit French users to have access

to the materials specified in the French court’s orders. French

users, for their part, are criminally forbidden to obtain such

access. In other words, as to the French users, Yahoo! is necessarily arguing that it has a First Amendment right to violate

French criminal law and to facilitate the violation of French

criminal law by others. As we indicated above, the extent —

indeed the very existence — of such an extraterritorial right

under the First Amendment is uncertain. 

3. Summary

[25] In sum, it is extremely unlikely that any penalty, if

assessed, could ever be enforced against Yahoo! in the United

States. Further, First Amendment harm may not exist at all,

446 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
given the possibility that Yahoo! has now “in large measure”

complied with the French court’s orders through its voluntary

actions, unrelated to the orders. Alternatively, if Yahoo! has

not “in large measure” complied with the orders, its violation

lies in the fact that it has insufficiently restricted access to

anti-semitic materials by Internet users located in France.

There is some possibility that in further restricting access to

these French users, Yahoo! might have to restrict access by

American users. But this possibility is, at this point, highly

speculative. This level of harm is not sufficient to overcome

the factual uncertainty bearing on the legal question presented

and thereby to render this suit ripe. 

C. The Dissent Addressed to Ripeness

The dissent addressed to the question of ripeness makes

two principal contentions. First, it contends that the French

court’s interim orders are unconstitutional on their face, and

that further factual development is therefore not needed. Second, it contends that if any further factual development is necessary, we should remand to the district court for that purpose.

We take these contentions in turn. 

1. Unconstitutionality of the French Court’s Orders

The dissent repeatedly states that the French court’s interim

orders are facially unconstitutional. It writes, “The French

orders on their face . . . violate the First Amendment and are

plainly contrary to one of America’s, and by extension California’s, most cherished public policies.” (Dissent at 481.) It

later refers to the French court’s orders as “foreign court

orders that so obviously violate the First Amendment.” (Id. at

15.) It writes further, “[T]he absence of a discernible line

between the permitted and the unpermitted . . . makes the

orders facially unconstitutional.” (Id. at 490.) 

The dissent is able to conclude that the French court’s

interim orders are facially unconstitutional only by ignoring

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 447
what they say. The dissent appears to assume that the orders,

on their face, require Yahoo! to block access by United States

users. It writes, “[T]he question we face in this federal lawsuit

is whether our own country’s fundamental constitutional

guarantee of freedom of speech protects Yahoo! (and, derivatively, at least its users in the United States) against some or

all of the restraints the French defendants have deliberately

imposed upon it within the United States.” (Id. at 473-74)

(emphasis in original). Further, “Yahoo! confront[s] the

dilemma of whether or not to stand by its United States constitutional rights or constrain its speech and that of its user[.]”

(Id. at 480.) “Legions of cases permit First Amendment challenges to governmental actions or decrees that on their face

are vague, overbroad and threaten to chill protected speech.

Indeed, the sweeping injunction here presents just such a paradigmatic case.” (Id. at 480.) Still further, “Under the principles articulated today, a foreign party can use a foreign court

decree to censor free speech here in the United States[.]” (Id.

at 483.) 

If it were true that the French court’s orders by their terms

require Yahoo! to block access by users in the United States,

this would be a different and much easier case. In that event,

we would be inclined to agree with the dissent. See, e.g., Sarl

Louis Feraud Int’l v. Viewfinder Inc., No. 04 Civ. 9760, 2005

U.S. Dist. LEXIS 22242 (S.D.N.Y. Sept. 29, 2005) (holding

unenforceable as contrary to the First Amendment a French

damage judgment based on photographs posted on the Internet freely accessible to American viewers). But this is not the

case. The French court’s orders, by their terms, require only

that Yahoo! restrict access by users in France. The boundary

line between what is permitted and not permitted is somewhat

uncertain for users in France. But there is no uncertainty

about whether the orders apply to access by users in the

United States. They do not. They say nothing whatsoever

about restricting access by users in the United States. 

The dissent’s conclusion that the French court’s orders are

unconstitutional may be based in part on an assumption that

448 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
a necessary consequence of compliance with the French

court’s orders will be restricted access by users in the United

States. But if this is the basis for the dissent’s conclusion, it

could hardly say that the orders are unconstitutional “on their

face.” Whether restricted access by users in the United States

is a necessary consequence of the French court’s orders is a

factual question that we cannot answer on the current record.

If the only consequence of compliance with the French

court’s orders is to restrict access by Internet users in France,

Yahoo!’s only argument is that the First Amendment has

extraterritorial effect. The dissent fails to acknowledge that

this is inescapably a central part of Yahoo!’s argument, let

alone acknowledge that it may be Yahoo!’s only argument. 

2. Remand to the District Court

As a fallback position, the dissent contends that we should

remand to the district court for a determination whether a necessary consequence of compliance with the French court’s

orders would be restriction on access by users in the United

States. This fallback contention is, of course, in tension with

the dissent’s conclusion that the French court’s orders are

unconstitutional on their face. 

If a necessary consequence of compliance with the French

court’s orders were a restriction on access by American users,

this would be a different and much easier case. The dissent

argues that we should remand to the district court to determine whether this is a necessary consequence. But we cannot

obtain this determination merely by remanding to the district

court. Before the district court can engage in useful factfinding, it must know whether (or to what extent) Yahoo! has

already sufficiently complied with the French court’s interim

orders. There are two alternative scenarios. 

First, if the French court were to conclude, as LICRA and

UEJF contend, that Yahoo! has already complied “in large

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 449
measure” with the French court’s orders, Yahoo! simply has

no First Amendment argument. Yahoo! has explicitly stated

that its change of policy after the entry of the second interim

order was undertaken for reasons entirely independent of the

French court’s orders. Under this scenario, the question of

compliance would disappear, and the district court would

have no factfinding role. 

Second, if the French court were to determine, contrary to

LICRA and UEJF’s contention, that Yahoo! has not complied

“in large measure,” the question of the necessary consequences for American users would then arise. If and when the

French court determines what further compliance is necessary, there might be some appropriate factfinding role for the

district court on that question. But even under this scenario,

we first need to get a determination from the French court as

to what further compliance is necessary, for the district

court’s factfinding role is dependent on there having been

such a prior determination by the French court. 

Under either scenario, the essential initial step is to find out

from the French court whether Yahoo! has complied “in large

measure” with its orders, and, if not, what further compliance

is required. Until we know that, the district court cannot perform any useful factfinding on the question of whether a necessary consequence of compliance with the French court’s

orders will be to restrict access by Internet users in the United

States. 

Conclusion

First Amendment issues arising out of international Internet

use are new, important and difficult. We should not rush to

decide such issues based on an inadequate, incomplete or

unclear record. We should proceed carefully, with awareness

of the limitations of our judicial competence, in this undeveloped area of the law. Precisely because of the novelty, importance and difficulty of the First Amendment issues Yahoo!

450 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
seeks to litigate, we should scrupulously observe the prudential limitations on the exercise of our power. 

Yahoo! wants a decision providing broad First Amendment

protection for speech and speech-related activities on the

Internet that might violate the laws or offend the sensibilities

of other countries. As currently framed, however, Yahoo!’s

suit comes perilously close to a request for a forbidden advisory opinion. There was a live dispute when Yahoo! first filed

suit in federal district court, but Yahoo! soon thereafter voluntarily changed its policy to comply, at least in part, with the

commands of the French court’s interim orders. This change

in policy may or may not have mooted Yahoo!’s federal suit,

but it has at least come close. Unless and until Yahoo!

changes its policy again, and thereby more clearly violates the

French court’s orders, it is unclear how much is now actually

in dispute. 

It is possible that because of Yahoo!’s voluntary change of

policy it has now complied “in large measure” with the

French court’s orders. It is also possible that Yahoo! has not

yet complied “in large measure.” If further compliance is

required, Yahoo! will have to impose further restrictions on

access by French users. The necessary consequence of such

further restrictions on French users may or may not be that

Yahoo! will have to impose restrictions on access by American users. Until we know whether further restrictions on

access by French, and possibly American, users are required,

we cannot decide whether or to what degree the First Amendment might be violated by enforcement of the French court’s

orders, and whether such enforcement would be repugnant to

California public policy. We do not know whether further

restrictions are required, and what they might be, because

Yahoo! has chosen not to ask the French court. Instead, it has

chosen to come home to ask for a declaratory judgment that

the French court’s orders — whatever they may or may not

require, and whatever First Amendment questions they may

or may not present — are unenforceable in the United States.

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 451
An eight-judge majority of the en banc panel holds, as

explained in Part II of this opinion, that the district court properly exercised specific personal jurisdiction over defendants

LICRA and UEJF under the criteria of Calder. A three-judge

plurality of the panel concludes, as explained in Part III of this

opinion, that the suit is unripe for decision under the criteria

of Abbott Laboratories. When the votes of the three judges

who conclude that the suit is unripe are combined with the

votes of the three dissenting judges who conclude that there

is no personal jurisdiction over LICRA and UEJF, there are

six votes to dismiss Yahoo!’s suit. 

[26] We therefore REVERSE and REMAND to the district

court with instructions to dismiss without prejudice. 

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

Yahoo!’s claims. Yahoo!’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”

452 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
at California under the “effects” test of Calder v. Jones, 465

U.S. 783, 789-90 (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 Calder. 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 arrangements”);

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 425. 

That is not true. LICRA and UEJF’s suit sought French

court orders directing Yahoo! to perform significant acts

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 453
locally in France, not in California. The May 22, 2000

interim order declares: “[B]y permitting [anti-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 [antiSemitic] 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 liable 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 425. 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 Yahoo!’s server locations, security capabilities, or technical procedures or, more important, how they

relate to Yahoo!’s California-based operations. LICRA and

454 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
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 Yahoo!’s actions within France,

regardless of where those actions emanated from. 

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

II.

The District Court should have also abstained from deciding Yahoo!’s claims. 

The common law act of state doctrine specifies: 

Every foreign state is bound to respect the independence of every other sovereign 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 (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

(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 Comermex,

S.A., 807 F.2d 820, 827 (9th Cir. 1987) (“The act of state doctrine is a combination justiciability and abstention rule . . .”).

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 455
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 Nat’l 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 bor456 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
ders’ . . .” ) (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 nongovernmental, anti-racist associations and institutional partners with the French government in fighting anti-Semitism.1

Their injunctive actions against Yahoo! clearly followed 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-Jacques 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 exis1The French anti-racism Pleven law (“Loi Pléven”), passed in July

1972, expressly permits French anti-racist associations to file legal actions

to combat racism. The law confers 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). 

2Reuters, “Paris Prosecutor Condemns Nazi Auctions on Yahoo,” May

15, 2000, available at http://www.icare.to/archivemay2000.html. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 457
tence 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

3

It is also worth noting that the French court orders were final criminal

judgments that Yahoo! elected not to appeal through the French court sys458 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
The 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. 

tem. 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 Yahoo!’s First Amendment 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 Mobile Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517,

1521-22 (2005). 

4Bureau 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. 108-332, which authorized the 2005 report, the first of its

kind. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 459
Volume 2 of 2

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 461
O’SCANNLAIN, Circuit Judge, with whom FERGUSON and

TASHIMA, Circuit Judges, join, concurring only in the judgment: 

Our requirement that a defendant have “purposefully

availed” himself of the protections and benefits of the forum

state, or have “purposefully directed” his activities into the

forum state, must be read in light of the Supreme Court’s

admonition in Milliken v. Meyer, 311 U.S. 457 (1940), that

the exercise of personal jurisdiction must comport with “traditional notions of fair play and substantial justice.” Id. at 463.

Because I cannot agree that California’s exercise of personal

jurisdiction over La Ligue Contre Le Racisme et

L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs

de France (“UEJF”) comports with those basic principles, 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. 

I

A State’s jurisdiction is defined not by force or influence

but by physical territory and its judicial power traditionally

extended over only those persons and property within its borders. See Pennoyer v. Neff, 95 U.S. 714, 720-22 (1878). The

idea of “minimum contacts” developed as a surrogate for

actual presence in a State but did not alter the essentially terri462 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
torial nature of jurisdiction. The question in every personal

jurisdiction case, then, is whether an individual’s contacts

with the forum State are so substantial that they render the

extension of sovereign power just, notwithstanding his lack of

physical presence there. 

A

The personal jurisdiction requirement is not merely a rule

of civil procedure; it is a constitutional constraint on the powers of a State, as exercised by its courts, in favor of the due

process rights of the individual. See Omni Capital Int’l v.

Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“The requirement that a court have personal jurisdiction flows not from

[Article] III, but from the Due Process Clause. It represents a

restriction on judicial power not as a matter of sovereignty,

but as a matter of individual liberty.”). Grounded in the Fourteenth Amendment’s protection of the processes necessary to

ensure basic fairness in the application of the law, the requirement that an individual have “certain minimum contacts” with

the relevant forum “such that the maintenance of the suit does

not offend ‘traditional notions of fair play and substantial justice,’ ” International Shoe, 326 U.S. 310, 316 (1945) (quoting

Milliken, 311 U.S. at 463), protects him from the unpredictable and burdensome exercise of authority by foreign courts.

It follows from this that the rights and interests of Yahoo! and

the interests of the State of California, if not irrelevant to the

inquiry, are clearly subordinate to the rights of LICRA and

UEJF, the parties against whom jurisdiction is asserted and

whose rights are protected by the Due Process Clause. 

The Supreme Court has advised that

the constitutional touchstone remains whether the

defendant purposefully established “minimum contacts” in the forum State. Although it has been

argued that foreseeability of causing injury in

another State should be sufficient to establish such

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 463
contacts there when policy considerations so

require, the Court has consistently held that this kind

of foreseeability is not a “sufficient benchmark” for

exercising personal jurisdiction. Instead, the foreseeability that is critical to due process analysis is

that the defendant’s conduct and connection with the

forum State are such that he should reasonably

anticipate being haled into court there. 

Burger King v. Rudzewicz, 471 U.S. 462, 542 (1985) (emphases added). By requiring that individuals have “fair warning

that a particular activity may subject [them] to the jurisdiction

of a foreign sovereign,” Shaffer v. Heitner, 433 U.S. 186, 218

(1977) (STEVENS, J., concurring in judgment), the Due Process Clause “gives a degree of predictability to the legal system that allows potential defendants to structure their primary

conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

B

The Supreme Court has never approved such a radical

extension of personal jurisdiction as would sanction the

majority’s holding that, by litigating a bona fide claim in a

foreign court and receiving a favorable judgment, a foreign

party automatically assents to being haled into court in the

other litigant’s home forum. Such a result cannot be reconciled with the “constitutional touchstone” of foreseeability:

that the defendant “should reasonably anticipate being haled

into court” in the forum. Burger King, 471 U.S. at 542. 

In Calder v. Jones, 465 U.S. 783 (1984), the defendants

should reasonably have expected that, by circulating a libelous story in California about a California celebrity, they

would be haled into court in California to answer for their tortious behavior. And in Burger King, because the defendants’

business ties with the State of Florida were “shielded by the

464 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
‘benefits and protections’ ” of Florida’s laws, it was “presumptively not unreasonable to require [them] to submit to

the burdens of litigation [there] as well.” 471 U.S. at 543.

These cases stake out the limits of personal jurisdiction as

approved by the Supreme Court. 

LICRA’s and UEJF’s actions lie beyond that limit. Neither

party has ever carried on business or any other activity

through which they have availed themselves of the benefits

and protections of California’s laws,1 nor should either party

have reasonably anticipated that it would be haled into court

in California to answer for the legitimate exercise of its rights

in France. 

II

This case was reheard en banc primarily for the purpose of

answering the question of whether the underlying action in a

non-contract case must be tortious or otherwise wrongful to

justify the exercise of personal jurisdiction, or whether the

“express aiming” of any action, regardless of culpability, will

suffice.2 Although the resolution of that question does not

affect my conclusion that California cannot exercise personal

jurisdiction over LICRA or UEJF, I respectfully disagree with

the majority’s interpretation of Calder on this point. 

1

I agree with the majority that the mailing in good faith of cease and

desist letters and the use of the United States Marshal’s Office to effect

service of process of documents related to the French legal proceedings

are not sufficient bases for jurisdiction. Maj. op. at 423-25. 

2Although the fact is ignored by the majority, this question was settled

law in our circuit prior this appeal being reheard en banc. In Bancroft &

Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000),

the panel made it clear that its decision relied on the assumption that the

defendant had engaged in tortious conduct. Judge Sneed, writing for a

majority of the panel, further held that “[j]urisdiction in California would

be ripe for challenge if following the development of trial it should appear

that ANI acted reasonably and in good faith to protect its trademark

against an infringer.” Id. at 1089 (Sneed, J., concurring). 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 465
A

Under the majority’s reading of Calder, acts giving rise to

personal jurisdiction in a non-contract case need not be

wrongful. Maj. op. at 423 (“[W]e do not read Calder necessarily to require in purposeful direction cases that all (or even

any) jurisdictionally relevant effects have been caused by

wrongful acts.”). That conclusion is undermined by the language of Calder itself and requires the majority to divorce

that case’s holding from its fact—always a dubious exercise.

In Calder, the Supreme Court affirmed a decision that had

“concluded that a valid basis for jurisdiction existed on the

theory that petitioners intended to, and did, cause tortious

injury to respondent in California.” Calder, 465 U.S. at 1485

(emphasis added). The Court itself held that “[i]n this case,

petitioners are primary participants in an alleged wrongdoing

intentionally directed at a California resident, and jurisdiction

is proper on that basis.” Id. at 1487 (emphasis added). The

wrongfulness of the defendants’ acts was, therefore, a key element in the jurisdictional calculus, possibly because a person

who has committed a wrongful act should expect to be haled

into court by his victim in the victim’s home State. Although

the Court might have reached the same result if the act in

question had not been wrongful—as the majority apparently

presumes it would—it is reckless of us to proceed on the basis

of such speculation beyond what is currently the farthest

reach of personal jurisdiction approved by the Court.

B

The majority’s jurisdictional legerdemain is nimble but,

like any trick, does not stand up to close scrutiny. It begins

innocuously enough by noting that the traditional analysis of

minimum contacts depends on whether the disputed act

sounds in tort or in contract. In tort cases, “we typically

inquire whether a defendant ‘purposefully direct[s] his activities’ at the forum state,” maj. op. at 420. And in commercial

and contract cases, “we typically inquire whether a defendant

466 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
‘purposefully avails itself [sic] of the privilege of conducting

activities’ or ‘consummate[s] [a] transaction’ in the forum.”

Id. and do not require that the defendants actions be wrongful.

However, that traditional distinction is abruptly jettisoned

when the majority next asserts that “in any personal jurisdiction case we must evaluate all of a defendant’s contacts with

the forum state, whether or not those contacts involve wrongful activity by the defendant.” Id. at 422 (emphases added). 

The majority’s statement is, quite literally, unprecedented.

With a stroke of its pen, the majority extends the analysis previously applied only to commercial and contract cases to all

assertions of personal jurisdiction. Tellingly, the only cases

that the majority musters in support of its novel assertion are

commercial or contract-related “purposeful availment” cases.

In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the

Supreme Court held that when an out-of-state mail order company “purposefully avails itself of the benefits of an economic

market in the forum State, it may subject itself to the State’s

in personam jurisdiction even if it has no physical presence in

the State.” 504 U.S. at 302. And, in Burger King, the Court

held that jurisdiction was proper on the grounds that defendants’ business ties with the State of Florida were “shielded

by the ‘benefits and protections’ ” of Florida’s laws. 471 U.S.

at 543. In sharp contrast, every “purposeful direction” case

that the majority cites in its opinion involved tortious or otherwise wrongful acts by the defendants. 

Given our long line of precedent applying the “purposeful

availment” test only in contract and commercial cases, and the

majority’s concession that this case should be analyzed under

Calder’s “purposeful direction” test, see maj. op. at 423, the

majority’s conflation of the elements of these two tests is an

unseemly act of judicial slight of hand. LICRA and UEJF are,

indisputably, non-commercial actors who have never purposefully availed themselves of the benefits or protections of California’s laws. Therefore, neither Calder nor any other

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 467
Supreme Court precedent justifies California’s assertion of

personal jurisdiction over them.

III

LICRA’s and UEJF’s actions and contacts with the State of

California were, at most, incidental to the legitimate exercise

of their rights under French law. They should not have reasonably anticipated being haled into court in California to

answer for their prosecution of a lawsuit in France. Because

California’s exercise of personal jurisdiction over them on

that basis would violate traditional notions of fair play and

substantial justice and, therefore, the procedural guarantees of

the Due Process Clause, I would remand the case with

instructions to dismiss for want of personal jurisdiction and

not reach the issue of ripeness. 

Thus, while I must dissent from its rationale, I concur in the

majority’s conclusion that the district court’s opinion must be

reversed. 

TASHIMA, Circuit Judge, with whom FERGUSON and

O’SCANNLAIN, Circuit Judges, join, concurring in the judgment: 

I concur in the judgment reversing and remanding with

instructions to dismiss this action, but I dissent from the

majority’s conclusion that personal jurisdiction exists over La

Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and

L’Union des Etudiants Juifs de France (“UEJF”). I therefore

concur in Part I of Judge Ferguson’s concurring opinion —

that a district court located in California cannot exercise personal jurisdiction over LICRA and UEJF. 

Because I believe that the district court lacked in personam

jurisdiction, I would not reach the issues discussed in Part III

468 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
of the majority opinion1

 — ripeness — and Part II of Judge

Ferguson’s concurring opinion — whether, even if it had

jurisdiction over the defendants, the district court should have

abstained from deciding this case. I do believe, however, that

Judge Ferguson’s eloquent discussion in Part II of the reasons

why he would hold that abstention is proper further supports

why personal jurisdiction is lacking in this case. 

LICRA and UEJF (“defendants”) had only three contacts

with California. These contacts were a cease and desist letter,

the service of process to commence the French action, and the

subsequent service of two interim orders on Yahoo!. Service

was made in accordance with the requirements of the Hague

Convention on the service abroad of judicial documents. As

the majority rightly acknowledges, these contacts are an

insufficient basis for the exercise of personal jurisdiction over

defendants. Maj. op. at 422-25. 

The majority goes on, however, to find a sufficient basis for

the exercise of personal jurisdiction over defendants in two

interim orders issued by the French court because those orders

“direct[ed] Yahoo! to take actions in California, on threat of

a substantial penalty.” Id. at 425. The majority’s conclusion

is not based on any contact with California, but on acts which

it contends were “expressly aimed at the forum state.” Id.

(quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 805 (9th Cir. 2004)). But neither Schwarzenegger nor

any other case relied on by the majority based a finding of

specific jurisdiction on conduct expressly aimed at the forum

state which conduct was not also a contact with the forum

state. Here, for the first time, the majority completely divorces

the expressly-aimed conduct from the requirement that that

conduct also be a contact with the forum state. Thus, I submit

1

I refer to the opinion authored by Judge W.A. Fletcher as the “majority

opinion,” because it commands a majority of the en banc court on the

issue of personal jurisdiction, although that is not the majority that controls the disposition of the case. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 469
that the finding of personal jurisdiction on the basis of Calder’s2

“effects” test in the circumstances of this case is a radical

extension of that doctrine. 

It is self-evident that the orders are the orders of the French

court, not acts of defendants. Thus, more precisely, the majority’s finding of personal jurisdiction is, in fact, based on

LICRA and UEJF petitioning the French court for relief under

French law. But should the petitioning by a citizen of the

courts of his or her own country to uphold the laws of that

country form the sole basis of personal jurisdiction over that

citizen by the courts of a foreign country? The majority’s

answer is yes. That answer, seems to me, to be perverse. First,

the bringing and prosecuting of an action in a French court are

all acts done wholly in France. None of these acts constitutes

a “contact” with California. Second, no citizen of any country

can safely sue a foreign defendant under the majority’s theory

of specific jurisdiction because the sought judgment, including an ordinary money judgment for injury or damages, will

have an adverse “effect” on the defendant’s purse or treasury

in that defendant’s home country. In this sense, every lawsuit

naming a foreign defendant can be said to be expressly aimed

at that defendant’s home state (or nation). Thus, unless it is

anchored to a contact with the forum, express aiming becomes

a meaningless test in terms of due process. 

Moreover, courts, even when acting at the behest of a private petitioner, have an independent interest and obligation to

uphold their nations’ domestic laws, particularly when, as

here, those laws are designed to carry out an important and

strongly-held national policy. Thus, as Judge Ferguson

reminds us, it is the manner in which the French courts have

determined to vindicate French national policy — that “state

action” — that has the adverse “effect” in California that

Yahoo! is complaining about, not the acts of defendants in

petitioning for French anti-Semitism laws to be upheld. It was

2Calder v. Jones, 465 U.S. 783, 789-90 (1984). 

470 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
not defendants who determined the terms and scope of injunctive relief, nor was it defendants who determined that continuing non-compliance should be “subject to a penalty,” or the

amount of such a penalty. Needless to say, defendants will not

be the ones who decide whether such penalties ultimately will

have to be paid or waived.3

Whatever other conduct Calder’s “effects” test was

intended to encompass, it surely was not intended to include

attribution of the effects of an intervening court’s order when

a citizen does no more that petition a court in his own country

for relief under domestic law, particularly in a case, such as

this, in which defendants have had no contact that would

“provide a sufficient basis for jurisdiction.”

4

 Maj. op. at 423.

For these additional reasons, I concur in Part I of Judge Ferguson’s concurring opinion. 

FISHER, Circuit Judge, with whom HAWKINS, PAEZ,

CLIFTON and BEA, Circuit Judges, join, concurring in part

and dissenting in part:1

3

Indeed, if any penalties are ever paid, they will not redound to the benefit of defendants, but “are payable to the government.” Maj. op at 444.

4What the majority opinion calls a “third contact,” maj. op. at 423

(“However, the third contact, considered in conjunction with the first two,

does provide such a [sufficient] basis [for personal jurisdiction].”), is not

a “contact” with California at all. The majority classifies as the “[t]hird,

and most important [contact], LICRA and UEJF have obtained two

interim orders from the French court directing Yahoo! to take actions in

California, on threat of a substantial penalty.” Id. at 425. It cites no authority for the proposition that conduct by LICRA and UEJF which takes place

entirely in France can be classified as a “contact” with California. 

1Like Judge Tashima, we refer to Judge Fletcher’s opinion as the “majority” or the “majority opinion” because an eight-judge majority of the en

banc court joins Part II of the opinion on the issue of personal jurisdiction.

As the per curiam and Judge Fletcher’s opinions explain, however, Judge

Fletcher’s articulated rationale on ripeness in Part III of his opinion represents a three-judge plurality and does not command a majority of the en

banc court. Nevertheless, we refer to Judge Fletcher’s opinion as the “majority” throughout our dissent for ease of reference. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 471
I. Overview

Stated simply, the issue before us is whether a United

States Internet service provider, whose published content has

been restricted by a foreign court injunction, may look to the

United States federal courts to determine the enforceability of

those restrictions under the United States Constitution’s First

Amendment. The French injunctive orders — backed by substantial, retroactive monetary penalties for noncompliance —

require Yahoo! to block access from French territory to Nazirelated material on its <yahoo.com> website.2

 Some prohibited content is readily identifiable, such as Nazi artifacts or

copies of Mein Kampf. Much, however, is not. The orders

impose the following sweeping mandate: 

We order the Company YAHOO! Inc. to take all

necessary measures to dissuade and render impossible any access via Yahoo.com to the Nazi artifact

auction service and to any other site or service that

may be construed as constituting an apology for

Nazism or a contesting of Nazi crimes. 

(Emphasis added.) In traditional First Amendment terms, this

injunctive mandate is a prior restraint on what Yahoo! may

post (or control access to) on its U.S.-located server —

imposed under principles of French law and in such facially

vague and overbroad terms that even the majority does not

know “whether further restrictions on access by French, and

possibly American, users are required” to comply with the

French orders. (Op. at 451.) Yahoo! can either hope to comply with what the French court (and the defendants here)

deems to be inappropriate content by attempting to block

access to material Yahoo! thinks the orders cover or by simply

2As the majority recognizes, any Internet user in France or a French territory — whether or not a French citizen or resident — can gain access

to Yahoo!’s U.S.-based server by typing <yahoo.com> into her browser or

linking through <fr.yahoo.com>. (Op. at 412.) 

472 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
removing any questionable content altogether. Or Yahoo! can

ignore the French court’s mandate in whole or in part and

accept the risk of substantial accruing fines. The majority,

however, is unmoved. For it, Yahoo!’s proper recourse is to

take its case back to France. We cannot agree. 

As the district court readily concluded in its thoughtful

opinion, “[a] United States court constitutionally could not

make such an order.” Yahoo!, Inc. v. La Ligue Contre Le

Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181, 1189

(N.D. Cal. 2001) (hereinafter “Yahoo II”). It specifically

found that the orders are “far too general and imprecise to survive the strict scrutiny required by the First Amendment,” and

that “[p]hrases such as ‘all necessary measures’ and ‘render

impossible’ instruct Yahoo! to undertake efforts that will

impermissibly chill and perhaps even censor protected

speech.” Yahoo II, 169 F. Supp. 2d at 1189-90 (citing Bd. of

Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987); and

Gooding v. Wilson, 405 U.S. 518 (1972)). The district court

emphasized that “ ‘[t]he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes

irreparable injury.’ ” Id. at 1190 (quoting Elrod v. Burns, 427

U.S. 347, 373 (1976) (citing New York Times Co. v. United

States, 403 U.S. 713 (1971))). 

The issue is not whether the French defendants who

obtained the injunctive orders, or the French court that issued

them, are justified in trying to suppress hateful speech. We of

course recognize the horrors of the Holocaust and the scourge

of anti-Semitism, and France’s understandable interest in protecting its citizens from those who would defend or glorify

either. Nor is the issue one of extra-territorial application of

the First Amendment; if anything, it is the extra-territorial

application of French law to the United States. We do not

question the validity of the French orders on French soil, and

Yahoo! has complied with the orders as they relate to its

<fr.yahoo.com> website. Rather the question we face in this

federal lawsuit is whether our own country’s fundamental

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 473
constitutional guarantee of freedom of speech protects Yahoo!

(and, derivatively, at least its users in the United States)

against some or all of the restraints the French defendants

have deliberately imposed upon it within the United States.

“ ‘[P]rior restraints on speech and publication are the most

serious and the least tolerable infringement on First Amendment rights.’ ” Tory v. Cochran, 125 S. Ct. 2108, 2111 (2005)

(quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559

(1976)). 

The majority, after properly opening the door to the federal

courthouse by upholding personal jurisdiction, nonetheless

turns a blind eye to the constitutional free speech interests of

Yahoo!, throwing it out of court because those interests are

not “ripe” for adjudication. The majority’s thesis rests on the

contention that the French “orders do not by their terms limit

access by users outside France in any way.” (Op. at 438.) But

as the majority recognizes elsewhere in its opinion (Op. at

438-441), the crux of this case is not in the words of the order

alone, but in their application. And to assess the effects of the

orders, one cannot simply disregard the “what” of the orders

and focus only on their “who.” 

As we shall explain later, we disagree with the majority’s

conclusion that uncertainties about whether Yahoo! can technologically isolate the effects of the orders only to Francebased users compel us to withdraw the case from the district

court. Even assuming such uncertainties exist and are material, the district court is fully capable of exercising its factfinding role to resolve them. But there is no uncertainty that

the mandate imposed on Yahoo! is also content based, and the

orders identify that content in terms that on their face are

overbroad and vague. They require Yahoo! to guess what has

to be censored on its Internet services here in the United

States, under threat of monetary sanction if it guesses wrong.

In that respect, the orders are facially unconstitutional. 

By their terms, the orders reach “any other site or service

[in addition to the auction service] that may be construed as

474 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
constituting an apology for Nazism or a contesting of Nazi

crimes.” (Emphasis added.) As the district court rightly understood, this is the crux of Yahoo!’s facial overbreadth and

vagueness concern:

Yahoo! seeks protection for its actions in the United

States, specifically the ways in which it configures

and operates its auction and Yahoo.com sites. Moreover, the French order requires Yahoo! not only to

render it impossible for French citizens to access the

proscribed content but also to interpret an impermissibly overbroad and vague definition of the content that is proscribed. . . . In light of the Court’s

conclusion that enforcement of the French order by

a United States court would be inconsistent with the

First Amendment, the factual question of whether

Yahoo! possesses the technology to comply with the

order is immaterial. Even assuming for purposes of

the present motion that Yahoo! does possess such

technology, compliance still would involve an impermissible restriction on speech. . . . 

Yahoo II, 169 F. Supp. 2d at 1193-94 (emphasis added). 

Surely the majority is not suggesting that Yahoo! has no

First Amendment protection from being sanctioned when it

could not guess or it guessed wrong as to what it was supposed to censor on its domestic servers — even if limited to

France-based users. (And if not so limited, so much the

worse.) Yet the majority faults Yahoo! because — like

Yahoo! itself — we do not know whether its current activities

are permitted by the orders. (Op. at 437.) This is to apply First

Amendment precedents exactly backwards. As the majority

admits, “[t]he boundary line between what is permitted and

not permitted is somewhat uncertain for users in France.”

(Op. at 448.) Under such circumstances, we blame the law,

not the speaker. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 475
Instead, the majority effectively imposes an exhaustion

requirement on Yahoo! to litigate this issue in France, confirm

that it is still is not in compliance with the orders (just as it

was not on May 22 and November 20, 2000) and obtain a

“final” adverse judgment before the majority will consider

this case ripe. In doing so, the majority imposes a heightened

standard on a U.S. plaintiff seeking to vindicate its First

Amendment rights when that plaintiff is challenging a foreign

prior restraint. Principles of ripeness (or comity) do not

require this result. The extraordinary hurdles the majority

creates are inconsistent with our established jurisprudence

protecting this country’s tradition of free expression. See, e.g.,

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

755-56 (1988) (holding that a plaintiff need not have applied

and been denied a newspaper rack license before challenging

a city ordinance as an unconstitutional prior restraint on

speech). To say so is not to deny France’s interests in protecting its own citizens from harmful speech, but only to recognize that federal courts have the duty to adjudicate and uphold

the legitimate constitutional rights of litigants who have properly invoked our federal jurisdiction. 

In correctly sustaining personal jurisdiction over the defendants and in finding an Article III case or controversy, the

majority concedes the central dilemma Yahoo! faces as a

result of the French injunction. “[W]hile Yahoo! does not

independently wish to take steps to comply more fully with

the French court’s orders, it states that it fears that it may be

subject to a substantial (and increasing) fine if it does not.”

(Op. at 427.) Acknowledging the obvious chilling effect of

the injunction, the majority recognizes that “[e]ven if the

French court’s orders are not enforced against Yahoo!, the

very existence of those orders may be thought to cast a

shadow on the legality of Yahoo!’s current policy.” (Op. at

428-29.) 

But unfortunately the majority then stops short, concluding

that the “level of harm [suffered by Yahoo!] is not sufficient

476 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
to overcome the factual uncertainty bearing on the legal question presented and thereby to render this suit ripe.” (Op. at

447.) With respect, the majority creates its own factual

dilemma — and bad First Amendment precedent — in its

attempt to find daylight between its holdings on personal

jurisdiction and ripeness. We agree that the Calder “effects”

test, see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 803 (9th Cir. 2004) (citing Calder v. Jones, 465 U.S. 783

(1984)), need not be satisfied by the same degree of harm as

ripeness (Op. at 441), but the majority’s rationale for finding

the harm sufficient in one instance and deficient in the other

is seriously flawed. 

By peremptorily terminating Yahoo!’s access to federal

court, the majority establishes a new and burdensome standard for vindicating First Amendment rights in the Internet

context, threatening the Internet’s vitality as a medium for

robust, open debate. It also bypasses the factfinding role of

the district court — failing to credit much of what the district

court found on the record as litigated below, and removing the

district court from the process of resolving the factual issues

the majority now finds so vital to Yahoo!’s First Amendment

claims. Accordingly, although we concur in that part of the

majority’s opinion upholding personal and Article III jurisdiction, we respectfully dissent from its ultimate holding that this

case is not ripe for adjudication.

II. Prudential Ripeness

The majority invokes prudential ripeness because it finds

Yahoo!’s circumstances suffer from “prematurity and

abstractness” that preclude our reaching Yahoo!’s claim that

the French injunction on its face violates the First Amendment. (Op. at 429-30.) As did the district court, we conclude

otherwise. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 477
A. Fitness of the issues for judicial resolution

1. A “purely legal” question

The majority holds this case unfit for judicial resolution by

suggesting that it does not involve a “purely legal” question,

Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967),

but instead requires us to sort through factual uncertainties,

which ultimately make adjudication inappropriate. (Op. at

430.) Yet even if the majority were correct that Yahoo!’s case

suffers from a lack of factual development, it does not follow

that the suit is therefore rendered unripe. When a dispositive

fact is missing from the district court record, we usually

remand for further factfinding. We do not peremptorily throw

litigants out of court and expect them to petition a foreign

court for relief. 

To begin with, this case fundamentally involves a straightforward legal question: whether the French injunction as

ordered against Yahoo! runs afoul of the First Amendment.

The answer calls for a legal application of free speech doctrine to final orders that on their face are vague and overbroad. True, the defendants must take steps in the French

court to initiate actual enforcement, but Yahoo! is subject to

the orders and to a retrospective financial penalty for noncompliance. The majority’s argument that we should give weight

to the label “interim” because it indicates that “the French

court contemplated that it might enter later orders” is a makeweight. (Op. at 436.) A court may contemplate issuing subsequent orders whether or not a prior order on the subject is

called “interim” or “final.” We need not be distracted by the

label “interim,” because, as the district court found, “there is

no dispute that the French order is valid under French law and

that the French Court may fix a penalty retroactive to the date

of the order.” Yahoo II, 169 F. Supp. 2d at 1190. 

Cases involving far less definitive or targeted mandates —

not yet enforced against the complaining party — have been

478 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
treated as final actions ripe for adjudication. In Abbott Laboratories, one of the majority’s lynchpin cases, drug manufacturers challenged the Food and Drug Commissioner’s

regulation requiring that their products’ labels show both a

drug’s generic and its brand name. The Supreme Court,

addressing the “purely legal” issue presented, held that the

regulation was a final agency action, even though it was a

statement of general applicability and violations of the new

rule could be enforced only by the Attorney General authorizing criminal and seizure actions. 387 U.S. at 151-52. The

Court held the case ripe for pre-enforcement review because

the Commissioner’s labeling order placed “petitioners in a

dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.” Id. at 152. The Court cited the district court’s finding that petitioners either “ ‘must comply

[with the label changeovers] . . . or they must follow their

present course and risk prosecution’ ” and concluded that the

latter “course would risk serious criminal and civil penalties

for the unlawful distribution of ‘misbranded’ drugs.” Id. at

152-53. See also Frozen Food Express v. United States, 351

U.S. 40, 43-44 (1956) (holding justiciable a challenge to an

Interstate Commerce Commission rule because violations

could be punished by criminal sanctions and the rule itself

would cause companies to conform their behavior to the regulation); cf. United States v. Storer Broadcasting Co., 351 U.S.

192, 198 (1956) (finding standing to challenge a Federal

Communications Commission rule limiting radio licenses

even though the broadcaster had not yet received an unfavorable decision).3

3The majority’s citation of Adler v. Bd. of Educ., 342 U.S. 485 (1952),

as a “noted example” of a debate over ripeness in the context of speech

is inapposite. (Op. at 430.) Adler, a case affirming limits on the speech of

teachers in New York public schools during the post-World War II “Red

Scare,” not only concerns the constitutionally distinct situation of a state

government regulating the speech of its employees (as opposed to a court

being asked to enforce a speech-restrictive injunction against a corporation), but also predates important modern free speech precedents establishYAHOO! INC. v. LA LIGUE CONTRE LE RACISME 479
The final, targeted injunction before us presents the same

kind of purely legal issue — with Yahoo! confronting the

dilemma of whether or not to stand by its United States constitutional rights or constrain its speech and that of its users

to avoid a French-imposed penalty. Legions of cases permit

First Amendment challenges to governmental actions or

decrees that on their face are vague, overbroad and threaten

to chill protected speech. Indeed, the sweeping injunction here

presents just such a paradigmatic case. See, e.g., Freedom to

Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th

Cir. 1996) (rejecting a ripeness defense to a facial attack on

blanket travel restrictions to Cuba under the First and Fifth

Amendments, even though the plaintiff group had never

applied for a license, because the case presented purely legal

questions); see also Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129-30 (1992) (addressing a facial First

Amendment challenge to a licensing scheme even though the

plaintiff had never applied for a permit, citing numerous First

Amendment cases involving facial claims); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (concluding that petitioner had

established an actual controversy based on his threatened

criminal trespass arrest by state police for distributing political handbills and holding that he did not need to “first expose

himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”). Yahoo! seeks nothing more than for a United

ing the doctrine of facial invalidation. See, e.g., Lakewood, 486 U.S. at

755-56. Furthermore, Justice Frankfurter was the sole dissenter (and the

sole Justice) to question the suit’s ripeness; Justices Black and Douglas

were convinced the suit was ripe and that New York’s laws infringed upon

public school teachers’ First Amendment rights. See Adler, 342 U.S. at

496-511. Because Adler itself would certainly be reasoned, and likely

decided, differently today given cases such as Connick v. Myers, 461 U.S.

138 (1983), and Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which

recognized a government employee’s interest in commenting on matters

of public concern, Adler’s approach to ripeness is hardly illuminating even

within the narrow confines of government employee speech. 

480 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
States court to resolve its legal claim that the French court

injunction by its very nature — in whole or in part — threatens Yahoo!’s protected speech. See NAACP, W. Region v.

City of Richmond, 743 F.2d 1346, 1352, 1358 (9th Cir. 1984)

(upholding standing to bring facial challenge to “substantially

overbroad” city parade ordinance). 

2. Comity and the repugnance of unconstitutional

injunctions

We do not agree with the majority’s professed uncertainties

as to whether a California court, under principles of comity,

would be inclined to enforce a foreign court order that

infringes upon a U.S. corporation’s First Amendment rights.

The “repugnancy” standard the majority invokes is easily satisfied here. California’s case law and its federal underpinnings tell us to honor foreign court judgments unless they

“prejudice the rights of United States citizens or violate

domestic public policy.” In re Stephanie M., 867 P.2d 706,

716 (Cal. 1994) (citing Hilton v. Guyot, 159 U.S. 113, 202-03

(1895); and Victrix S.S. Co. v. Salen Dry Cargo A.B., 825

F.2d 709, 713 (2d Cir. 1987)). The French orders on their face

— and by putting Yahoo! at risk of substantial penalties —

violate the First Amendment and are plainly contrary to one

of America’s, and by extension California’s, most cherished

public policies.4 In short, they constitute a foreign judgment

that is “repugnant to public policy.” (Op. at 436.) 

4As the majority correctly notes, it is California’s public policy (rather

than U.S. public policy) that is relevant to a comity analysis in a federal

diversity case. (Op. at 431.) However, although Yahoo! focused its energies on alleging violations of the federal First Amendment rather than violations of the analogous provision of the California Constitution, see art.

I, § 2(a), it is certainly not California’s public policy to countenance violations of the United States Constitution. Indeed, the California Supreme

Court has held California’s free speech clause to be more expansive than

the First Amendment. See Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n, 29 P.3d 797, 801 (Cal. 2001) (“Unlike the United States Constitution, which couches the right to free speech as a limit on

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 481
The district court considered the role of comity but ultimately found that it was outweighed by U.S. constitutional

freedoms. “Although France has the sovereign right to regulate what speech is permissible in France, this Court may not

enforce a foreign order that violates the protections of the

United States Constitution by chilling protected speech that

occurs simultaneously within our borders.” Yahoo II, 169 F.

Supp. 2d at 1192. This finding does not mean that every foreign court judgment implicating speech in the United States

would be deemed repugnant to American public policy and

therefore unenforceable, but this particular judgment is so

vague and overbroad that it fails the repugnancy analysis. Significantly, the defendants do not argue to us that the French

injunction comports with the First Amendment. Indeed, they

did not even appeal the district court’s ultimate finding that

the orders are unconstitutional. 

The majority goes to great lengths to avoid labeling a prior

restraint on speech — overbroad and vague by its terms — as

“repugnant to public policy” and is content to leave in place

foreign court orders that so obviously violate the First

Amendment. (Op. at 436.) In reaching this result, the majority has succumbed to an error of logic. It has conflated foreign

orders that are somewhat inconsistent with U.S. law with

those that violate U.S. law. It is one thing for U.S. courts to

pass on foreign attorney’s fees larger than what domestic laws

would award, see In re Hashim, 213 F.3d 1169, 1172 (9th Cir.

2000), or to recognize a judgment pursuant to a foreign statute

congressional power, the California Constitution gives ‘[e]very person’ an

affirmative right to free speech. Accordingly, we have held that our free

speech clause is ‘more definitive and inclusive than the First Amendment.’ ”) (internal citations omitted). See also Sarl Louis Feraud Int’l v.

Viewfinder Inc., 2005 U.S. Dist. LEXIS 22242, at *19 (S.D.N.Y. 2005)

(“American courts have recognized that foreign judgments that run afoul

of First Amendment values are inconsistent with our notions of what is fair

and just, and conflict with the strong public policy of our State [New

York].”) (emphasis in original).” 

482 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
of limitations longer than that of its domestic analogue, see

Milhoux v. Linder, 902 P.2d 856, 861-62 (Colo. Ct. App.

1995). It is quite another to imply, as the majority does, that

a violation of the U.S. Constitution is no different from any

other “[i]nconsistency with American law,” which the majority claims “is not necessarily enough to prevent recognition

and enforcement of a foreign judgment in the United States.”

(Op. at 435-36.) 

Neither In re Hashim nor Milhoux implicated federal or

state constitutional rights. Indeed, both cases held that the foreign judgments being challenged were not repugnant to the

public policy of either Arizona or Colorado, respectively.

Where a foreign judgment was held to be repugnant to California’s public policy, the repugnancy was based on the violation of California’s Uniform Child Custody Jurisdiction Act

that would have resulted had the foreign order been enforced.

See In re Stephanie M., 867 P.2d at 716. The majority provides no explanation why the California courts would refuse

to enforce a foreign judgment that violated a state statute, yet

be willing to enforce a foreign judgment that violates the federal (and perhaps the state) Constitution. 

The majority’s dictum implying that foreign judgments that

would be unconstitutional if entered by a U.S. court may

nonetheless be enforceable is troubling. Under the principles

articulated today, a foreign party can use a foreign court

decree to censor free speech here in the United States on any

range of subjects it finds objectionable — religion, democracy, gender equality — in the name of enforcing its own

country’s laws. The good intentions of even sympathetic foreign parties such as LICRA and UEJF in this case are not the

standard. How could a California court honor the French

defendants’ good intentions in proscribing pro-Nazi speech

when the City of St. Paul’s good intentions did not cure its

anti-hate speech code of viewpoint discrimination and constitutional infirmity even when directed at cross-burnings? See

R. A. V. v. City of St. Paul, 505 U.S. 377, 392 (1992) (“St.

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 483
Paul has no such authority to license one side of a debate to

fight freestyle, while requiring the other to follow Marquis of

Queensberry rules.”); see also Collin v. Smith, 578 F.2d 1197,

1201 (7th Cir.), cert. denied, 439 U.S. 916 (1978) (striking

down on First Amendment grounds several Skokie, Illinois

ordinances prohibiting the National Socialist Party of America from marching through the town: “First Amendment rights

are truly precious and fundamental to our national life . . . .

It is, after all, in part the fact that our constitutional system

protects minorities unpopular at a particular time or place

from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.”)

People in the United States and France should abhor antiSemitism and the horrors perpetrated by the Nazi Party.

Nonetheless, our constitutional law differs from French jurisprudence in our approach to hate speech. Our law reflects

deeply held political beliefs about freedom of expression in

this country. Borrowing Justice Brandeis’s formulation, “the

remedy to be applied [to expose falsehood and fallacies] is

more speech, not enforced silence.” Whitney v. California,

274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 

3. The alleged lack of factual development

Even accepting the majority’s assumption that this case

does not turn on purely legal issues, the concerns the majority

invokes as reasons to withhold judicial resolution are either

unconvincing or at most reasons for remand. For instance, the

majority seems to call into question whether the French

court’s injunction is sufficiently final because the orders are

labeled “interim,” notwithstanding their unconditional and

mandatory language. (Op. at 436.) In considering whether the

injunction survives U.S. laws, we must take the orders issued

by the French court as final actions, reflecting that court’s

view of Yahoo!’s conduct and current obligations under

French law. There is no reason for us to assume that the

French court intends something different from the words of its

484 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
own mandatory orders — just as we would not assume that

a U.S. federal or state court would not stand by an injunctive

order it has issued. 

Moreover, by insisting on withholding judicial resolution,

the majority disregards the district court’s factual determinations, and its role in resolving factual disputes. First, with

respect to the content at issue, the majority minimizes the district court findings that Yahoo! hosts content violating the

specific terms of the orders. As the district court found,

Yahoo! “continues to offer at least some Third Reich memorabilia as well as Mein Kampf on its auction site and permits

access to numerous web pages with Nazi-related and antiSemitic content.” Yahoo II, 169 F. Supp. 2d at 1189. The district court took judicial notice from its own search of the site

(in October 2001) that using the keyword “Nazi” called up 69

Nazi-related items posted for sale, such as stamps, coins and

a copy of Mein Kampf. Id. at 1185 n.3. The district court also

conducted keyword searches on Yahoo!’s general

<yahoo.com> website, finding thousands of sites referring to

“Jewish conspiracy,” promoting modern-day Nazism or suggesting the Holocaust did not happen. Id. at n.4.5

Clouding the majority’s view of the facts are the defendants’ assertions before us and in the district court that they

“have no present intention of taking legal action against

Yahoo! in the United States” because they consider Yahoo! to

be in “substantial compliance with the French order.” Yahoo

II, 169 F. Supp. 2d at 1188. But the French court has never

made such a determination of Yahoo!’s alleged compliance.

Instead, the majority speculates that because Yahoo! France

5The French defendants initially objected to a far broader array of content than the limited category of items Yahoo! now excludes under its

revised auction site policy. UEJF’s plea for relief asked the French court

to mandate that Yahoo! remove from all browser directories the index

heading entitled “negationists” and any link “bringing together, equating

or presenting directly or indirectly as equivalent sites categorised under

the heading ‘Holocaust’ and those indexed as negationist.” 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 485
has “complied [in France] in large measure with the spirit and

letter” of the May 22 French order, “compliance ‘in large

measure’ by Yahoo! is very likely to be satisfactory to the

French court.” (Op. at 436-37.) But Yahoo! is not Yahoo!

France, and the French court did not explain the factual basis

for its finding of compliance. 

Nor have the defendants ever taken any steps to stipulate in

a legal forum that Yahoo! is in compliance with the injunction. Thus the district court properly gave no weight to the

defendants’ professions of Yahoo!’s substantial compliance.

The court pointedly observed that the defendants “have not

taken steps available to them under French law to seek withdrawal of the orders or to petition the French court to absolve

Yahoo! from any penalty,” Yahoo II, 169 F. Supp. 2d at 1188,

and they gave no indication they would pursue such measures

when pressed on the subject. Id. at 1189 n.7. 

During oral argument before us, defense counsel conceded

that the defendants did not want to foreclose their options by

agreeing to such a stipulation. As the majority recognizes

(Op. at 416), should Yahoo! alter its content in a way that the

defendants disapprove of, they want the judicial authority to

seek relief and mandate Yahoo!’s compliance. (Oral Arg.

1:02.) The majority in large part hinges its analysis on the

defendants’ litigation position of saying that they have no

problem now with Yahoo!’s conduct but declining to take any

steps to eliminate the speech injunction or accruing financial

penalties. See Abbott Laboratories, 387 U.S. at 154 (concluding that the “subsequent representation of the Department of

Justice” that it was likely to impose only civil sanctions for

violations, thus mitigating the harm to the plaintiff, “should

not suffice to defeat” the claim); see also Culinary Workers

Union, Local 226 v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.

1999) (disregarding attorney general’s claim that she lacked

authority to carry out specific threat of prosecution in holding

that a real controversy existed for purposes of Article III). 

486 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
The majority claims that “we do not know whether the

French court would hold that Yahoo! is now violating its two

interim orders.” (Op at 436.) Ironically, the majority thereby

highlights the very threat Yahoo! faces. Uncertainty about

whether the sword of Damocles might fall is precisely the reason Yahoo! seeks a determination of its First Amendment

rights in federal court. See Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265

n.13 (1991); Chang v. United States, 327 F.3d 911, 921 (9th

Cir. 2003) (recognizing that this court does not require “Damocles’s sword to fall” before it will adjudicate a case). 

In sum, the uncertainties Yahoo! faces are not reasons to

delay adjudication. Rather, they provide a compelling basis

for a federal court to hear Yahoo!’s First Amendment challenge at this time, as the district court did. 

The fact that Yahoo! does not know whether its

efforts to date have met the French Court’s mandate

is the precise harm against which the Declaratory

Judgment Act is designed to protect. The Declaratory Judgment Act was designed to relieve potential

defendants from the Damoclean threat of impending

litigation which a harassing adversary might brandish, while initiating suit at his leisure or never. 

Yahoo II, 169 F. Supp. 2d at 1189 (emphasis added).6 Instead,

6Yahoo!’s circumstances are readily distinguishable from those found

not ripe in Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). There,

the principal First Amendment claims the party leveled against Ohio’s

election code were mooted by legislative amendments, leaving only a subsidiary challenge to a loyalty oath. The Court found this claim “singularly

sparse in its factual allegations,” with no suggestion that the Party had

ever refused or would refuse in the future to sign the oath, or that it had

suffered or would suffer any injury from the existence of the oath requirement. Id. at 586. 

Similarly, in American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (9th Cir. 1992), members of the Popular Front for the

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 487
the majority turns Yahoo!’s uncertainties against it — relegating it to the French courts for clarification and absolution. 

B. Substantial hardship of withholding judicial

consideration 

Even more perplexing is the majority’s conclusion that

Yahoo! does not face “substantial hardship” because of our

unwillingness to adjudicate its First Amendment claim. The

majority attempts to avoid the obvious chilling effect of an

overbroad and vague injunction in two creative and troubling

ways. First, the majority opines “with some confidence” that

Yahoo! need not fear the enforcement of a fine because “it is

exceedingly unlikely that the sword [of Damocles] will ever

fall” (Op. at 441) — another speculative assessment, we submit. It also faults Yahoo! for failing to proffer examples of

“anything that it is now not doing but would do if permitted

by the orders” (Op. at 445) and thereby imposes a new, higher

burden on a First Amendment plaintiff to establish a chilling

effect. 

Liberation of Palestine (PFLP) contended that anti-Communist provisions

of the McCarran-Walter Act unconstitutionally put them at risk of deportation for engaging in protected First Amendment activities without the

opportunity for a fair and impartial hearing before the INS. We held that

the plaintiffs were sufficiently at risk of government prosecution to give

them standing; but we found their claims not ripe because there was “a

sketchy record . . . with many unknown facts,” such as whether the plaintiffs were actually members of the PFLP or what acts the government

alleged they had committed, and we emphasized that the INS had not yet

interpreted or applied the challenged provisions. Id. at 510-11. 

In marked contrast to these cases, here the French injunction remains

extant and as broadly worded as ever; the defendants have refused to stipulate to Yahoo!’s compliance; and the district court has found actual noncompliance with specific terms as well as an overall risk of

noncompliance with fatally undefined terms — thereby subjecting Yahoo!

to the risk of substantial monetary fines and the chilling effect of the

vague and overbroad injunction. Additionally, there is no court or agency

— other than this federal court — that can address Yahoo!’s United States

constitutional claim. 

488 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
1. The French orders chill speech

First, the majority overlooks Yahoo!’s claim that it faces

actual abridgment of its current speech — not just a chilling

effect on its ever-changing Web content. As the majority does

acknowledge, Yahoo! hosts content on its auction site, including the sale of Mein Kampf, that is specifically prohibited by

the terms of the injunction. The district court’s findings of

impermissible material still present on the auction site demonstrate that Yahoo! is currently engaged in speech that the

French orders — by their terms — compel it to foreclose to

some users or forgo entirely. Yahoo! opts not to accede to the

injunction, thereby incurring daily accumulating fines should

its current or future behavior displease LICRA or UEJF. Certainly Yahoo! should not have to abstain from conduct it

believes is constitutionally protected solely for us to find its

claim ripe. Cf. City of Auburn, 260 F.3d at 1173 (9th Cir.

2001) (noting that finding case unripe would require party to

comply with “costly and cumbersome” franchise requirements, only for the party to then raise “exactly the same argument that it makes here”). 

More importantly, the majority largely ignores the broad

and diffuse scope of the French injunction — which extends

well beyond Yahoo!’s auction site and clearly raises the question whether it is substantively possible for Yahoo! to comply.

Apart from entirely obvious cases, how can one determine

with any certainty whether something “may be construed as

constituting an apology for Nazism or a contesting of Nazi

crimes”? The majority makes the rather startling assertion that

“[b]efore the district court can engage in useful factfinding, it

must know whether (or to what extent) Yahoo! has already

sufficiently complied with the French court’s interim orders.”

(Op. at 449.) Of course, this is precisely the crux of Yahoo!’s

predicament — and highlights the vagueness and overbreadth

of the orders. We know the actions Yahoo! has taken and not

taken with respect to Nazi paraphernalia appearing on its site.

The only reason we cannot determine “whether (or to what

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 489
extent) Yahoo! has already sufficiently complied” with the

French orders is because we cannot assess the scope of the

orders themselves.7 It is this very kind of uncertainty that epitomizes a purely legal question of facial infringement of First

Amendment rights and the harms routinely associated with

such an infringement. 

In plain terms, if no one but the French court can decipher

the meaning of its injunction aimed at Yahoo!’s speech, how

can Yahoo! comply? Yahoo! has to know what content it has

to screen from France-based users. The French orders contain

no meaningful instructions for Yahoo! to winnow permitted

speech from unpermitted speech. It is the absence of a discernible line between the permitted and the unpermitted that

makes the orders facially unconstitutional. As the district

court concluded, and as discussed previously, “compliance

would still involve an impermissible restriction on speech”

because it would require Yahoo! to interpret the vague and

overbroad injunction as to what content is prohibited and

which users should be denied access, on pain of substantial

penalty should it guess wrong. See Yahoo II, 169 F. Supp. 2d

at 1193-94. 

Ultimately, the majority’s parsimonious treatment of the

free speech issues here culminates with its reducing Yahoo!’s

argument to an interest in merely “allowing access by users

in France” to Nazi materials. (Op. at 446.) Yahoo! is allegedly

seeking “a First Amendment right to violate French criminal

law and to facilitate the violation of French criminal law by

others.”

8

 (Op. at 446.) Notably, even the defendants have not

7

It is telling that even the Internet experts relied upon by the French

court were unable to recommend a “suitable and effective technical solution” for Yahoo! to screen out France-based users from any of its sites or

services, other than the auction site, that may be construed as constituting

an apology for Nazism or a contesting of Nazi crimes because “[n]o grievance against any . . . Yahoo! sites or services [other than the auction site]

is formulated with sufficient precision.” 

8According to the majority, “the French court’s interim orders do not by

their terms require Yahoo! to restrict access by Internet users in the United

490 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
construed Yahoo!’s First Amendment argument in such

crabbed terms. 

But suppose Yahoo! really were concerned only with not

having to act in the United States as an enforcer of France’s

restrictions on Internet access by France-based users. That

would not make the constitutional implications of the effects

on Yahoo!’s United States operations go away. Yahoo! cannot merely act in France to restrict access by users located in

France; the French orders require Yahoo! to make changes to

its servers and protocols in the United States. That Yahoo!

seeks First Amendment protection from having to compromise its domestic operations to comply with a foreign injunction does not translate into its seeking the right simply to

violate French law. This case is not about the extra-territorial

application of the First Amendment; it is about the extraterritorial application of France’s anti-Holocaust denial

speech codes and the extent to which compliance may

infringe Yahoo!’s rights of free speech here in the United

States. 

The majority, however, views the French orders as concerning “speech accessible solely by those outside the United

States.” (Op. at 440.) Additionally, it accepts that Yahoo! can

screen out access to any prohibited materials by “most” —

States.” (Op. at 446.) This is not Yahoo!’s position. The company has

asserted that complying with the French orders would compel it to remove

prohibited material from its United States-based Internet services and

reengineer its servers, also located in the United States, to identify both

France-based users and prohibited material that may be posted in the

future; therefore, it may not be possible to comply with the French orders

without rendering certain content inaccessible to all users, including those

in the United States and not just those in France. Nor does Yahoo! appear

to be interested in asserting its constitutional rights solely for the sake of

violating French law. To comply with the orders as they affect the company’s French services, Yahoo! now removes any posted material it becomes

aware of on its <fr.yahoo.com> site that would violate French law. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 491
estimated to be 70-90% — of France-based users. (Op. at

438.) This reasoning is flawed in several respects. 

First, Yahoo! does not target specific users by initiating

content directed solely at them. Rather, anyone who logs on

to <yahoo.com>, including users in France, gains access to

material on Yahoo!’s message boards, search engines, auction

sites and other services. It is the accessing of vaguely and

overbroadly described content — by anyone in French territory — that the orders prohibit and hold Yahoo! responsible

for preventing. Thus, even if one could readily and reliably

limit the universe of Internet users whose access must be censored — an assumption the record before us does not justify

— Yahoo! would still be at a loss to define the universe of

content it must censor. 

Second, the factual question of whether it is technologically

feasible for Yahoo! to monitor the postings and filter the millions of users accessing the <yahoo.com> website — assuming such technology actually bears on Yahoo!’s First

Amendment claims — is an unresolved issue that should be

returned to the district court. The parties have not addressed

the specifics of technical feasibility issue on this appeal, nor

the validity of the experts’ report. Thus the 70% and 90% figures the majority adopts from that report depend solely on the

majority’s reading of a translated technical and ambiguous

document, the scientific merits of which have not been

addressed even in the district court. LICRA and UEJF did

raise the issue of feasibility below, but the district court

denied them discovery regarding technological feasibility of

screening France-based users because it deemed the issue

immaterial to the court’s First Amendment ruling. See Yahoo

II, 169 F. Supp. 2d at 1194. The defendants have not appealed

either the district court’s First Amendment decision or its discovery ruling. To the extent that the technological feasibility

issue has been argued at all on appeal, Yahoo! has said that

it “could not monitor the content of these millions of postings

and listings to its U.S.-based Internet services” and that it

492 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
essentially faces a binary choice between self-censorship and

paying the French fines. 

On the record before us — lacking expert testimony and

cross-examination, much less district court findings of fact —

we do not believe we as appellate judges can or should accept

as a given that Yahoo! can readily and reliably identify 70%

of the users it must censor, “irrespective of whether a Yahoo!

user sought access to an auction site, or to a site denying the

existence of the Holocaust or constituting an apology for

Nazism.” (Op. at 414-15.) 

This is particularly true given that the experts’ report is

replete with hearsay, technological assumptions and disclaimers. Most importantly, the experts explicitly limited their analysis to how an Internet “surfer” in France could be prevented

from accessing prohibited content only on Yahoo!’s auction

site, not all such content that might find its way onto

<yahoo.com> generally. As the experts emphasized — echoing Yahoo!’s own concern about the imprecision of the

orders:

The decisions of the [French] court and the demands

made are precisely directed against the auctions site.

No grievance against any other Yahoo! sites or services is formulated with sufficient precision to

enable the consultants to propose suitable and effective technical solutions. In these circumstances, the

consultants will therefore confine their answers to

the matter of the auctions site. . . .9

9Even as to screening content on the auction site, the experts acknowledged that it was not possible for Yahoo! to “exclude a priori items which

have not been described by their owner as being of Nazi origin or belonging to the Nazi era.” How then would Yahoo! keep the prohibited material

from being accessed? The report suggested that a more “radical solution”

might be warranted, essentially prohibiting any search containing the word

“Nazi” by an identified French user. How such Nazi paraphernalia which

has not been described by its owners with the label “Nazi” could be

screened remains a mystery. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 493
(Emphasis added.) The experts also emphasized, “[t]he measures to be taken depend upon the particular case in point.

They cannot be generalised to all sites and services on the

Internet. In this case, the site in question is

pages.auctions.yahoo.com.” (Emphasis added.) 

Of course, the French orders do not solely prohibit content

on Yahoo!’s auction site but, by their terms, encompass content on all of Yahoo!’s services. Yahoo!’s services extend far

beyond its auction site and include its search engine, e-mail,

classified listings, personal Web pages, shopping, message

boards, chat rooms and news stories. 

The majority — like the French court itself — seems to

credit two of the three experts who estimated as many as 90%

of France-based users of Yahoo’s auction site could be identified and screened. The methodology underlying this estimate,

however, further illustrates the uncertainty of predicting Internet identification and screening, compounded by the vague

and overbroad mandate of the court orders. Assuming that

“70% of the IP addresses assigned to French surfers can be

matched with certainty to a service provider located in France,

and can be filtered,” all three experts agreed that “no filtering

method is capable of identifying all French surfers or surfers

connecting from French territory.”

10 To reach 90%, two

experts relied on a voluntary “sworn declaration of nationality” by a French surfer that “could be made when a first connection is made to a disputed site, in this case the Yahoo

auctions site . . . .” (Emphasis added.)11 They suggested ask10Significantly, the experts were at pains to caution that even the 70%

figure based on IP addresses has a short shelf life: “[t]he consultants stress

that there is no evidence to suggest that the same will apply in the future.

Encapsulation is becoming more widespread, service and access providers

are becoming more international, and surfers are increasingly intent on

protecting their rights to privacy.” 

11Notably, the French orders compel Yahoo! to prohibit access by any

users in French territory, not just French citizens. Thus a declaration of

“nationality” does not seem adequate in any event. 

494 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
ing for the declaration of nationality at “the home page of the

auctions site” or “in the context of a search for Nazi objects

if the word ‘Nazi’ is included in the user’s request . . . .” In

short, the experts’ 90% figure depends on the ability to link

users to a specific Yahoo! site and to specific content on that

site. 

The third expert, Vinton Cerf, a 1997 recipient of the

United States National Medal of Technology for co-designing

the architecture of the Internet,12 disavowed relying on users’

self-identification at all, concluding that “it does not appear to

be very feasible to rely on discovering the geographic locations of users for purposes of imposing filtering of the kind

described in the [French] Court Order.” 

Given the orders’ broad language, none of the experts could

devise a system for screening out France-based users that

went beyond the auction site. Therefore, even if were true that

Yahoo! can identify up to 70% of all of its France-based

users, irrespective of the site or service they are accessing, the

evidence is clear that geographical identification alone would

not enable Yahoo! to prohibit such users from accessing

100% of the content proscribed by the French orders —

indeed, Yahoo! could not even come close on that side of the

compliance equation. 

There are other serious questions about the experts’ report

that should be part of an evidentiary hearing in the district

court. For example, the 70% IP-address screening figure was

derived in part from information provided by a French Internet association regarding how many of its access providers

can identify whether their users are located in France. Such

anecdotal data do not demonstrate conclusively that Yahoo!

itself has the capability to identify the location of its users.

12See Technology Administration, Department of Commerce, The

National Medal of Technology Recipients, at http://www.technology.gov/

Medal/Recipients.htm. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 495
Indeed, the method the experts proposed for Yahoo! to identify users is imprecise. The experts noted that for a number of

reasons the “real world” location of a user may not be readily

identifiable. For instance, a French citizen who uses AOL for

Internet service may be shown as having an IP address from

Virginia, where AOL’s network is located. In other instances,

users may choose to mask the geographical origin of their

Internet address. 

Thus we cannot assume, as does the majority, that this case

is about Yahoo! restricting access only by French users, 70-

90% of whom are readily identifiable regardless of what content they may seek out on <yahoo.com>. The validity of these

percentage assumptions not only drives the majority’s definition of whose access is restricted, but also its apparent willingness to assume that even if Yahoo! can identify only 70%

of the prohibited universe of users, that would be good

enough. If technical feasibility is to be the lynchpin on which

Yahoo!’s day in federal court depends, then let the parties

return to the district court for proper factfinding. Instead, the

majority preempts the district court’s factfinding function,

interpreting the French experts’ report as conclusive evidence

in order to deny Yahoo! access to the court altogether. 

Lastly, there is the issue of cost of compliance. There can

be no dispute that the very nature of the French orders puts

Yahoo! to the choice of incurring the costs to develop and

implement mechanisms to filter out individual users based on

location or removing content from its service altogether. This

type of immediate financial burden clearly suffices to make a

case ripe for adjudication, even if we accept the majority’s

proposition that the threat of enforcement is remote. See Pac.

Gas & Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 197-98 (1983) (holding ripe for

review a preemption challenge to a regulation imposing a

moratorium on new nuclear plants because petitioners would

face substantial financial hardship if they built plants while

hoping the law would be struck down); City of Auburn v.

496 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
Qwest Corp., 260 F.3d 1160, 1173 (9th Cir. 2001) (noting that

finding case unripe would require party to comply with

“costly and cumbersome” franchise requirements).13

2. The enforceability of foreign penal judgments

Recognizing that the risk of a large monetary penalty must

inevitably weigh heavily in Yahoo!’s assessment of its

options, the majority tries to neutralize the risk — creating a

protective shield by invoking the doctrine that United States

courts will not enforce the penal judgments of other countries.

It thus assures Yahoo! that “even if the French court were to

impose a monetary penalty against Yahoo!, it is exceedingly

unlikely that any court in California — or indeed elsewhere

in the United States — would enforce it” because it is a penal

judgment. (Op. at 442.) 

It is true as Justice Marshall observed that “[t]he courts of

no country execute the penal laws of another,” The Antelope,

23 U.S. (10 Wheat.) 66, 123 (1825). But that begs the question whether the French injunction itself or the accruing fines

are truly penal. Although we respect the majority’s scholarship, this issue has not been the focus of the parties’ briefs or

arguments, and thus we cannot share the majority’s level of

confidence that its dictum is sufficiently accurate — or binding — that we should remove the risk of a substantial, retroac13The mere possibility of future fines can have very real financial consequences for a publicly held corporation like Yahoo!. To the extent it is

material to a corporation’s financial condition, such companies are

required to disclose contingent liabilities in Form 10-Q and 10-K statements filed with the Securities and Exchange Commission. See Securities

Exchange Act of 1934, §§ 10(b), 15(d), 15 U.S.C. §§ 78j(b), 78o(d); 17

C.F.R. §§ 240.10b-5, 240.12b-20; see also Financial Accounting Standards Board Statement of Financial Standards No. 5, available at http://

www.fasb.org/pdf/fas5.pdf. Such filings may adversely affect the credit

ratings and hence the valuation of shares of such companies. In another

context, we have held that financial impacts on a business resulting from

legal uncertainty support a finding that a case is ripe. See Chang v. United

States, 327 F.3d 911, 922 (9th Cir. 2003). 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 497
tive monetary penalty from the First Amendment or ripeness

analysis. As with the French defendants’ assurances that they

consider Yahoo! currently in substantial compliance, absent a

binding court order actually freeing Yahoo! from the enforcement of the French orders, Yahoo! remains at serious risk if

it fails to conform its web content to the dictates of those

orders. 

“The test whether a law is penal, in the strict and primary

sense, is whether the wrong sought to be redressed is a wrong

to the public, or a wrong to the individual . . . .” Huntington

v. Atrill, 146 U.S. 657, 668 (1892). The Court warned against

the “danger of being misled by the different shades of meaning allowed to the word ‘penal’ in our language.” Id. at 666.14

Determining whether a sanction is penal or civil in nature is

not always a simple task. Cf. F.J. Hanshaw Enters., Inc. v.

Emerald River Dev., Inc., 244 F.3d 1128, 1137-38 (9th Cir.

2001) (establishing procedural protections due a party based

on whether sanctions were criminal or civil in nature). 

Although LICRA and UEJF’s substantive claims against

Yahoo! in French court depended in part upon Yahoo!’s violations of French criminal law,15 the record suggests that the

14The Supreme Court’s warning in Huntington has even greater salience

when we are attempting to determine “the different shades of meaning

allowed to the word ‘penal’ ” in a language other than our own. (Op. at

443.) 

15LICRA and UEJF’s claims are based in part on a French law that

criminalizes the public wearing or display of the uniforms, insignias and

emblems of any organization declared criminal by the post-World War II

International (Nuremberg) Military Tribunal (e.g., the Nazi Party). See C.

Pén. R645-1. One of the most serious penalties for violation of this provision of the penal code is a fine. See id. Their claims also appear to rely

on the French Law of July 29, 1881 (Law on Freedom of the Press)

(2004), which, among other things, criminalizes Holocaust denial, see art.

24 bis, and the incitement of discrimination, hatred or violence on the

basis of belonging to a particular ethnic, national, racial group, see art. 24,

¶ 6. Both crimes carry a penalty of one year imprisonment or a fine of

45,000 Euros or both. See id.

498 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
French lawsuits were civil rather than criminal and, more

importantly, that the French orders primarily sought to redress

a wrong to LICRA and UEJF rather than a wrong to the

French public. Of course, we agree with the majority that “the

label ‘civil’ does not strip a remedy of its penal nature.” (Op.

at 444.) However, that still begs the question whether or not

the French accruing fines were penal. On this point, the

majority asserts that there is some language in the November

20 order that supports the characterization of the fines as

penal and that in any event the fines are potentially much

larger than the nominal damages awarded to UEJF and therefore the “award of one Franc [to UEJF] cannot render the

orders primarily remedial rather than punitive in nature.” (Op.

at 445.) The majority cites no authority for the novel arithmetic balancing test it proposes to distinguish penal from nonpenal orders, and although we admit there is some language

in the orders that supports holding the French orders punitive,

there is also significant language that supports the conclusion

that the orders sought to redress a wrong done to LICRA and

UEJF. The proper test for determining whether the French

orders are penal is a purposive one, see Huntington, 146 U.S.

at 668, and based on the record before us, we do not share the

majority’s certainty that the orders are undoubtedly penal in

nature. 

French law gives standing to public interest, nongovernmental organizations dedicated to defending the interests of members of certain victimized groups, including victims of the Holocaust (déportés), to initiate enumerated types

of civil actions (but not criminal prosecutions) on behalf of

such victims. See, e.g., C. Pr. Pén. arts. 2-4 & 2-5; Law of

July 29, 1881 (Law on Freedom of the Press) (2004), art. 48-

2. Yahoo!’s challenge to UEJF’s standing under Article 48-2

of the French Law on Freedom of the Press and the French

court’s subsequent finding that LICRA and UEJF “are dedicated to combating all forms of promotion of Nazism in

France” suggest that the French trial was a civil proceeding

under one of the specialized French standing statutes. This

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 499
conclusion is further supported by the French court’s reliance

on Article 809 of the New Code of Civil Procedure for its

authority to issue orders. 

Furthermore, the award of damages to UEJF and other

relief “by way of restitution” strongly suggests that the French

court orders were predominantly civil and remedial rather

than penal.16 The court based its award of damages and other

restitution in its May 22 decision on a finding that the exhibition for sale of Nazi objects “has caused damage to be suffered by LICRA and UEJF.” The French court reiterated this

finding of direct harm in its November 20 decision: “this display [of Nazi objects] clearly causes damage in France to the

plaintiff associations who are justified in demanding the cessation and reparation thereof.” In this context, the additional

relief afforded to the French plaintiffs — an injunction ordering Yahoo! to cease its harmful activity in France — appears

to be merely an additional remedy in a civil suit. 

As with the French injunction, the accruing fines are similarly more likely civil than penal in nature. The most natural

reading of the French court’s rationale for imposing the accruing fines is that such fines were meant to coerce Yahoo! into

compliance with the substance of the French injunction.

Rather than assessing the fines retroactively as a court would

do when redressing the public wrong Yahoo! had allegedly

already committed, the French court made the fines entirely

conditional on Yahoo!’s future behavior beginning three

months after the date of the second French order. 

The U.S. analogue for such a regime of per diem fines is

civil contempt. See Sarl Louis Feraud Int’l v. Viewfinder Inc.,

16The French court ordered payment by Yahoo! (jointly and severally

with Yahoo! France) of provisional damages of 1 Franc to UEJF. As a

means of effecting restitution for the harm suffered, the French court also

ordered Yahoo! to pay for the publication of one of the French decisions

in “five daily or weekly publications at the choice of [UEJF].” 

500 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
2005 U.S. Dist. LEXIS 22242, at *2, *7 (S.D.N.Y. 2005)

(characterizing a French court’s judgments and a “fine (‘astreinte’) of 50,000 francs per day for each day that Viewfinder failed to comply with each judgment” as “an injunction

backed by coercive penalties analogous to a civil contempt

fine under American law”). “In contrast [to criminal contempt], civil contempt sanctions, or those penalties designed

to compel future compliance with a court order, are considered to be coercive and avoidable through obedience.” Int’l

Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827

(1994). See also 17 C.J.S. Contempt § 64 (2005)

(“[C]ontempt proceedings brought to vindicate the dignity

and authority of the court may be characterized as criminal in

nature, whereas those brought to preserve and enforce the

rights of private parties are remedial and civil in character.”).

Courts have the power to order either imprisonment or the

payment of fines when holding a party in civil contempt: “A

close analogy to coercive imprisonment is a per diem fine

imposed for each day a contemnor fails to comply with an

affirmative court order. Like civil imprisonment, such fines

exert a constant coercive pressure.” Bagwell, 512 U.S. at 829.

See also People v. Gonzalez, 910 P.2d 1366, 1373 (Cal. 1996).17

17Admittedly, the characterization of the fines as coercive yet non-penal

may depend on whether Yahoo! “is afforded an opportunity to purge” its

liability to pay the fines. Bagwell, 512 U.S. at 829. Alternatively, the fines

may be compensatory and therefore non-penal if they are payable to

LICRA and UEJF “for losses sustained” rather than to the French government. See id. The majority claims that the “penalties are payable to the

government and not designed to compensate the French student groups for

losses suffered.” (Op. at 444.) However, nothing in the record indicates to

whom the fines are payable. Furthermore, the majority fails to acknowledge the possibility, indeed the probability, that the fines were not

designed to punish Yahoo! for its past behavior, but rather to prevent

future harm to LICRA and UEJF. Coercive per diem fines need not be

“designed to compensate [plaintiffs] for losses suffered” (Op. at 444), in

order to be non-penal, so long as their purpose is to “preserve and enforce

the rights of private parties,” 17 C.J.S. Contempt § 64 (2005). In any

event, such uncertainty concerning the nature of the fines merely reinforces the conclusion that further factfinding by the district court is necessary before we can jump to the conclusion that the French fines are penal

and unenforceable. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 501
Yahoo! was afforded a three-month safe harbor to allow it

to implement the French court’s orders, and only then would

any fines be assessed. As with a U.S. civil contempt order, the

fines were entirely “avoidable through obedience.” Because

the French coercive fines’ aim is enforcement of an underlying injunction that is civil (preventing the continuation of

harm the French court found LICRA and UEJF had already

suffered) rather than penal (benefitting French public justice

or vindicating the French court’s dignity and authority), the

California rule of comity announced in In re Stephanie M.

might well apply, were it not for the orders’ substantive unconstitutionality.18 See 867 P.2d at 716. 

For these reasons, unlike the majority we cannot take the

monetary penalty out of the ripeness analysis and assume that

Yahoo! is not harmed by the very threat of the French orders’

possible enforcement. Once again, at the least this is another

issue that could and should be remanded to the district court

for appropriate briefing and factfinding. 

3. A new, higher burden for proving chilling effect

Finally, the majority dismisses the chilling effect of the

orders by placing the burden on Yahoo! to identify other

speech it wants to engage in but which is foreclosed by the

French orders. What more should Yahoo! have to specify

18Even if the exact accruing fines as calculated by the French orders

were not directly enforceable under California law, Yahoo! could face the

possibility that a California court would enforce a foreign injunction with

its own state contempt proceedings under comity doctrine (again, assuming no substantive constitutional defect). Cf. Biewend v. Biewend, 109

P.2d 701, 704 (Cal. 1941) (“Upon the basis of comity, however, as distinguished from the requirements of full faith and credit, the California courts

have in numerous cases ordered that a foreign decree for future payments

of alimony be established as the decree of the California court with the

same force and effect as if it had been entered in this state, including punishment for contempt if the defendant fails to comply.”), overruled on

other grounds by Worthley v. Worthley, 283 P.2d 19, 22-23 (Cal. 1955).

502 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
about the exact manner in which the objectionable content

would appear on its site? Millions of postings and other material flow through Yahoo!’s networks each day.19 Yahoo! cannot possibly predict when and how specific content prohibited

by the French orders will make its way onto its service. For

example, a user could decide at any time to post a message or

a link to a website containing impermissible content. Because

it acts as a platform for other speakers, Yahoo! cannot, as the

majority demands, identify the specific speech it wishes to

engage in that is prohibited by the injunction. 

Nor should it have to. To place such a requirement on an

Internet provider — essentially forcing it to speculate as to the

particular speech activity its millions of users “might” engage

in as senders or recipients — is to afford it no First Amendment protection at all. As the Supreme Court has recognized,

“ ‘[t]he Internet . . . offer[s] a forum for a true diversity of

political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’ ” Ashcroft

v. American Civil Liberties Union, 535 U.S. 564, 566 (2002)

(quoting 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V)); see Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003) (emphasizing that Congress, in insulating Internet service providers

from liability for certain content published on their sites, recognized the importance of protecting the “unfettered and

unregulated development of free speech on the Internet”).20

19The record indicates that as of July 2000, Yahoo! and its subsidiaries

had 146 million users worldwide. Each month Yahoo! users added or

edited more than 15 million Geocities web pages and posted more than 6

million classified advertisements. There were more than 2.5 million active

auction items viewable on Yahoo! each day and 200,000 Yahoo! clubs

were accessed each day by members who posted messages, uploaded photos or added Internet links. 

20Batzel analyzed the rationale for the provisions protecting Internet

providers under 47 U.S.C. § 230, which Yahoo! invoked before the district

court as a statutory basis for preventing enforcement of the French court

orders here. 

YAHOO! INC. v. LA LIGUE CONTRE LE RACISME 503
The majority would impose on Yahoo! far greater burdens

and litigation risks than those alleging First Amendment violations by domestic parties would have to bear. Yahoo! is

expected to try to persuade the French court to narrow or

eliminate the very injunction Yahoo! has unsuccessfully

fought against in France from the beginning. Unconstrained

by our First Amendment, the French court might well take the

opportunity to sanction Yahoo! for noncompliance — and do

nothing to alleviate the sweeping restraint on the content of

the <yahoo.com> website. If the defendants want to narrow

the injunction such that it might warrant comity, that burden

should fall on them, not Yahoo!. 

But even if Yahoo! went to the French court and obtained

a ruling that its current auction site policy and Internet services content comply with the orders, that would not resolve

Yahoo!’s First Amendment problem unless the sweeping

injunction itself were permanently withdrawn or narrowed.

All Yahoo! would obtain would be clearance for its current

operations; it would remain exposed to the risk of violating

the orders and incurring penalties should it deviate from those

current practices or should the defendants decide that

Yahoo!’s content has become objectionable. The very nature

of Yahoo!’s business is inherently mutable — that is the

essence of the Internet, because of the sheer number and constantly changing identity of its users and of the content those

users may seek or themselves post on <yahoo.com>. Only a

United States court can provide Yahoo! with a legal resolution of its claim that the injunctive order, as written, cannot

be enforced in the United States without infringing the company’s First Amendment rights, thereby relieving it of the

coercive threat hanging over its website and the operation of

its business. By denying adjudication, the majority abdicates

our proper role in protecting Yahoo!’s constitutional rights. 

In so doing, it leaves in place a foreign country’s vague and

overbroad judgment mandating a U.S. company to bar access

to prohibited content by Internet users from that country. This

504 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME
astonishing result is itself the strongest argument for finding

Yahoo!’s claims ripe for adjudication. Are we to assume that

U.S.-based Internet service providers are now the policing

agencies for whatever content another country wants to keep

from those within its territorial borders — such as, for example, controversial views on democracy, religion or the status

of women? If the majority’s application of the First Amendment in the global Internet context in this case is to become

the standard — whether as a matter of constitutional law or

comity — then it should be adopted (or not) after full consideration of the constitutional merits, not as a justification for

avoiding the issue altogether as not ripe for adjudication.

III. Conclusion

Without doubt, the hateful speech the defendants in this

case seek to suppress is to be condemned. But censoring

speech we find repugnant does not comport with our cherished First Amendment. It is well-settled that a hate speech

code which “prohibits otherwise permitted speech solely on

the basis of the subjects the speech addresses” is “facially

unconstitutional.” R. A. V., 505 U.S. at 381. Under the majority’s reasoning, a party targeted for enforcement of a foreign

judgment restricting its speech in the United States will have

no recourse but to appeal to the foreign court, which does not

recognize the First Amendment, to try to escape the strictures

of the decree — or to demonstrate compliance, either through

voluntary action or by submitting to its terms. Only after

enduring the decree’s chilling effects while this process plays

out, and then faced with whatever sanction the foreign court

may impose for noncompliance, may the doors of the United

States District Court be opened. 

We should not allow a foreign court order to be used as

leverage to quash constitutionally protected speech by denying the United States-based target an adjudication of its constitutional rights in federal court. By invoking the doctrine of

prudential ripeness — notwithstanding having found both perYAHOO! INC. v. LA LIGUE CONTRE LE RACISME 505
sonal jurisdiction over the two foreign defendants and a constitutional case or controversy — the majority does just that,

denying Yahoo! the only forum in which it can free itself of

a facially unconstitutional injunction. Moreover, in doing so

the majority creates a new and troubling precedent for U.S.-

based Internet service providers who may be confronted with

foreign court orders that require them to police the content

accessible to Internet users from another country. We therefore respectfully dissent from the majority’s ripeness decision.

506 YAHOO! INC. v. LA LIGUE CONTRE LE RACISME