Книга: Code 2.0

1. Protecting the French

1. Protecting the French

The French don’t like Nazis (and resist your French-bashing urge to add “anymore” to that sentence; remember, but for the French, we likely would not have a nation). French law doesn’t let the Nazis fight back. As in Germany, it is a crime in France to promote the Nazi party and sell Nazi paraphernalia. The French are vigilant that this virus of an ideology not revive itself in Europe.

French law is different from American law in this respect. The First Amendment would block any viewpoint-based limitation on political propaganda. The state could no more block the sale of Nazi paraphernalia than it could block the sale of Republican buttons. Free speech means that the viewpoint of a political relic can’t determine whether the relic is sold.

Yahoo! is an American company. In 1999, Yahoo! opened a French branch, and, at Yahoo! France, Yahoo! opened an auction site.[1] Like eBay, this site permitted individuals to list items for auction. Like eBay, the site ran the auction and helped facilitate the ultimate sale of the items auctioned.

Very soon after the site opened, and contrary to French law, Nazi paraphernalia began to appear on the Yahoo! auction sites available for sale in France. Some in France were not happy. In 2000, a lawsuit was filed against Yahoo!, demanding Yahoo either remove the Nazi paraphernalia from its site or block access to the Nazi paraphernalia.[2]

This in turn made Yahoo! unhappy. This was the Internet, Yahoo! insisted. It is a global medium. There was no way to block French citizens from the Yahoo! sites. And it would be absurd if the rules of one country became the rules of the world. There would be a race to the bottom (or top, depending upon your perspective) if every country could force every website in the world to comply with its own law. France should just accept that in the world of the Internet, the rule of France won’t be absolute. As the Ninth Circuit Court of Appeals summarized Yahoo!’s argument, “Yahoo! wants a decision providing broad First Amendment protection for speech . . . on the Internet that might violate the laws . . . of other countries”.[3]

French Judge Jean-Jacques Gomez didn’t agree with Yahoo! In an opinion issued in May 2000, the judge required Yahoo! either to remove the Nazi paraphernalia or to block French citizens.[4] In a second order issued in November, the French court directed Yahoo! to comply within three months, or pay 100,000 French francs per day of the delay.[5]

The Internet was outraged. Thousands of websites criticized the French Court’s decision, and hundreds of newspapers followed suit. France was destroying “free speech” on the Internet by forcing its rule on anyone who used the Internet anywhere. As the Cato Institute’s Adam Thierer commented,

Thankfully, Americans take free speech a bit more seriously than the Brits, the French, the Germans and rest of the world. And, yes, America could become the guardian of free speech worldwide by offering the protection of the First Amendment over the Net to millions of people who have been denied the right to speak freely in their own countries.[6]

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