The League Against Racism and Anti-Semitism (LICRA) and The Union of Jewish Students (UEJF) filed their appeal on Tuesday in the Ninth Circuit Court of Appeals. These groups won their original case against Yahoo! in France but were then sued by Yahoo! in the US, resulting in a declaratory judgment on 7th November to the effect that the French order was not enforceable in the US.
“The district court judge in San Jose acknowledged that his decision was unprecedented,” said Ronald Katz, the attorney in the US case for the French organisations. “Therefore, it is important that we get this decision to a higher court as soon as possible. My clients are willing to go to the United States Supreme Court, if necessary, because they feel strongly that Yahoo! does not have the right to facilitate sales of Nazi memorabilia, which are illegal in France for French citizens in France.”
Stephane Lilti, the lawyer for UEJF in France, said:
“Although the First Amendment may permit extremist views to be expressed in the US, that is not the case in France. We do not believe that Yahoo! should be an exception to this law solely because it communicates via the World Wide Web. US law should not apply in French cyberspace.”
Shortly after bringing the lawsuit in the US last December, Yahoo! voluntarily changed its policy and now prohibits the sale of Nazi memorabilia on its auction site. “This change is acceptable to LICRA,” said its attorney in France, Mark Levy, “but Yahoo! is not willing to commit to making this change permanent. We think that would be a reasonable settlement of the case, but apparently Yahoo! wants to circumvent the French tribunal by litigating in the USA.”
Fourteen organisations supporting the First Amendment filed friend-of-the-court briefs in favour of Yahoo!, but Katz contends that, “The case is not about the First Amendment. The First Amendment questions are obvious,” he said. He concluded:
“It is obvious that one can sell Nazi memorabilia in the US if one wishes and it is also obvious that there is no First Amendment protecting such activity in France. So far we have had the French parties winning in France and the United States parties winning in the US, which is a sterile exercise. What is really needed here is an international treaty.”
Briefing of the appeal will begin in a few weeks. A decision is expected sometime next year.