International Speech Codes and the Internet

To say that the Germans have had a history of problems with Nazis and the fascist worldview ranks as a colossal understatement. Surely, there is no country with a greater justifiable reason to separate itself from this dangerous and ugly part of its past. Despite American free speech sensibilities, it is difficult to criticize the efforts of modern Germany to use the law to suppress, within their own borders, Nazi symbols and sentiment.

Nonetheless, a recent action by the Bundesgerichtshof, the highest German civil court, should concern those who view the Internet as an important medium for free and unfettered speech. The German court recently convicted Frederick Toben of publicly denying the historical reality of the Holocaust. Of course, Toben's claim is despicable and false, but it also came from Toben's web site in Australia not in Germany. The German court claimed jurisdiction over web sites outside its borders so long as Germans had access to the site.

Perhaps this should not concern us too much since Toben is being prosecuted in Germany. If you don't like German laws, just do not visit Germany. Then what should be done about Yahoo's predicament? Yahoo is a multinational company. They have spun off web enterprises in different countries. There is a Yahoo France, Yahoo Italy, and even a Yahoo Argentina that use French, Italian, and Spanish as their base languages, respectfully. These locally-based divisions are ready to comply with local law and avoid tweaking local sensibilities.

French law prohibits the sale of Nazi memorabilia. The International League Against Racism and the Union of French Students successfully persuaded French Judge Jean-Jacques Gomez to enjoin Yahoo against the auctioning of such material at its web site. Yahoo's French division was already in compliance with the French law in this regard. The United States-based Yahoo had not yet implemented such restrictions in its auction area. In essence, the French arm of the law was reaching across the Atlantic to enforce its regulations on a US-based web site. It was attempting to enforce a law that would, if issued by a United States jurisdiction, violate the First Amendment.

The US Yahoo has since disallowed the sale of Nazi memorabilia on its auction site as a matter of company policy. It has also asked a US federal judge to issue a declaratory judgment to render the French Judge Gomez's verdict unenforceable in the United States. If French speech codes are enforceable against United States web sites, US citizens no longer have the choice to simply not visit France to avoid French law. French law could constrain American web sites.

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