France wins; Yahoo! rolls over.

Great Debates
81

I forgot this part. It’s a feable slippery hole argument. After all, can you advocate for killing the jews, for instance, in your country? If you can’t legally, don’t you think it’s dangerous since nobody knows what could be banned next?

Why do you believe that a democratic government would forbid books which include ideas it considers remotely dangerous just because a book which his considered by the overwhelming majority of the citizens as actually offensive and dangerous? If the government intend to go that way, it means that you aren’t anymore living in a democratic country anyway. And forbidding books won’t be a cause but a consequence.

I’m going to give you an example : I suppose pornographic material depicting childrens is forbidden in the US. Very dangerous…Perhaps tomorrow all remotely erotic material will be forbidden (like a picture where you can see the ankle or the face of a woman). And later anything which could be deemeed offensive by some church. Or could contain ideas that are dangerous for the stability of the nation. Like critics about the government policies? Especially in the current period. It happens that several websites have been closed because they were advocating for terrorist activities…Isn’t it a dangerous precedent? What could happen next?

But you could imagine whatever else : the supreme court deciding to interpret the constitution in the most silly ways, without any consideration for its actual content or the will of the people. Most politicians waking up tomorrow and changing the constitution, transforming the governors in hereditary kings under the rule of the emperor Bush I°. The army organizing a military coup, whatever…

Why do you think that these scenarii are highly unlikely? Probably for the same reason I think that forbidding “Mein Kampf” and books about painting svastikas on the synagogues doesn’t carry the risk that any book containing any idea that could be considered as remotely dangerous will be forbidden too…

On the other hand, if you’re ready to advocate for child pornography, libels, death threats, calls for insurrection, calling “bitch” your female colleagues,etc…being allowed in the name of “freedom of speech”, it’s another story…And I’m quite serious, here, when comparing forbidding “Mein Kampf” and forbidding these other “speechs”.

Also, there’s quite a difference between something which might lead to bad acts and something which obviously has led to terrible acts in the past from which many people suffered and still suffer, and still lead currently, on a regular basis, to bad acts…

And the example you gave about printing a flyer advising to paint svastikas on synagogues isn’t a mere idea which might lead to bad acts. It’s an actual call to commit an unlawful (and really offensive) act.

Finally, printing and distributing a book stating that some race is inferior isn’t a mere opinion. It’s an insult (and in some cases a threat) at the face of hundreds of thousands of people. If you can’t insult someone publically without being sued, why could you insult millions without any consequences?

82

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I suppose mainly because :

1)Many people in western Europe have suffered from the nazis. Not that much experienced the goulags.

2)I know that this point has been debatted a lot on other threads, but I clearly have, like most other french people, the feeling that the nazi regime was much worse than the communist ones. To sum up (ands caricaturize) the idea (I don’t want to begin this debate again), nazism had “evil” goals implying the destruction of part of mankind. And the implementation was even worse. While at least communism had a “positive” goal. And with the nazis, you would be killed just because you were born. Even under Staline, you had to be least considered as some kind of potential interior ennemy. Nazism is an idelogy of hate. Plain and simple. It makes it very different from other political ideologies.

3)There has been (and there still are) many neo-nazis groups whose members commited criminal acts. No such issue with communists.

  1. In some european countries (namely France and Italy), the communist party was politically very important, and received a lot of votes. There was no way sovietic symbols could be forbidden in this situation. Anyway, the Soviet Union has not been “demonized” in Europe like it has been in the US.
    Also (but i’m not really sure), I believe that in Germany there has been some laws, at some point, against the communist parties. But I’m not sure, and I don’t remember any specifics.
    Anyway, I think it falls down basically to the fact that nazism stands out amongst any other ideology as the evil personnified, the “beast” that more or less nobody wants to see around, even in a symbolic form. Merely displaying these symbols is perceived (and often with good reasons) as a direct threat and message of hate.
    And of course, the more the nazism ideology/symbols are rejected, singled out, forbidden, etc…The more you can be sure than anyone owning or displaying them, for instance, isn’t merely a collector/immature loser/whatever but someone you really wouldn’t want to meet in a dark alley. Seriously, wearing merely a cross of iron, which would be exceptionnally frowned upon (read : accepted nowhere), really means something here. And something that nobody likes (like neo-nazi group, para-military training, beatings [or worse]of random immigrants, etc…).
83

Ah, my old friend Beagle. Resorting to tiresome barbs to make your point, yet again.

If I called someone a paedophile, would that person be offended? Why? Isn’t it just that they are offended? That’s your argument, isn’t it?

Calling someone a paedophile may offend that person’s cultural sensitivities. They have a legal remedy for it. Displaying a Nazi flag does the same thing in some European countries. They have a legal remedy for it.
PS Hitler won an election in a democracy, and then perverted that democracy. It was a free country, before he got hold of it. I don’t see your point.

84

Okay, so some people in France don’t want the swastika anywhere in their country. They want a complete ban on anything Nazi-related. They have laws to that effect. Holland wants the same thing, and has the same kind of laws, despite the fact that their constitution says this:

Why should I, as an American, care? Well, normally, I wouldn’t. I would rail against it for a while, I would post about it if I had the chance, but I would not actively fight it. How could I anyway?

But by dragging Yahoo!, an American corporation, into it, it becomes an American issue. If France is allowed to dictate law to an American corporation, it sets a precedent. This is not slippery-slope, any more than Brown v. Board of Education of Topeka was slippery-slope. It is precedent, a well-established tradition in the US and, I think, in other English-style Common Law nations. It did threaten to force American corporations to accept the ‘lowest common denominator’ of protections, as referenced here:

That decision proved that legal precedent can be overturned. But that overturn can be overturned, and so on. So the danger to my freedoms is not over.

My freedoms? Yes, my freedoms. If Fogel’s decision is overturned, and I publish content online that the nation of, say, Cuba disagrees with, my rights as a citizen of the sovereign nation of the United States of America will not protect me from the laws of Cuba. If a nation cannot protect its own citizens, what good is it? Absolutely none. I might as well have published my material within a hostile foreign land, for all the protection it will have.

The USA has very broad protections of free speech. The broadest anywhere, I’ve heard. They exist at the suffrance of the people of the USA, not of France, not of China, not of Cuba, not of any country except the USA. A citizen of France is not bound to pay US taxes, serve in the US Armed Services, or threatened by the US penal system. A French citizen does not have suffrage in American elections. Only an American citizen is bound by American duties and, therefore, able to exercise American privileges. Therefore, only an American government, that is, a government chosen by the voting population of the USA, can exercise its will over American citizens. That’s what citizenship means: Being bound to and protected by one specific government.

I am not a French citzen. I have no representation in the French Assembly (I think that’s what it’s called) and no voice in French elections and referendums. So there is no logical reason to expect me to be bound to the whims of the French government. I cannot exercise any of the privileges of a French citizen, so there is no reason I must be bound to the limits the French citizen is bound by. It’s a two-way street: Privileges entail and justify duties and limits. I have no French privileges, so I have none of the duties or limits of the French.

That is why I do not like the French courts, or any courts except American, trying to extend their jurisdiction to American private entities, which I am.

85

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Yes…But we disagree on what constitute fundamental rights. In my opinion, it doesn’t include the right to print that someone belong to an inferior race. And if you disagree, do you believe that every kind of speech, in any situation, should be allowed? Should defamation, libel, any kind of pornography everywhere (say, on some main TV channel at 7 PM), insults, etc…be allowed?

If someone print a book explaining that you’re a disgusting person living a depraved and sinful life and that any real whatever should shot you down for all your awful crimes, do you think this book should be on sale in the bookshops? If you don’t, what’s the difference?

By the way, if you want to know, especially since it’s probably not obvious considering my previous posts, I’m personnally opposed to “Mein Keimpf” being forbidden, since it’s an historical document. I’m unsure about revisionist books, since on one hand it’s annoying that any kind of historical research would be forbidden, and on the other hand the ideology and goals of the people writing them are pretty clear.I’ve no issue with forbidding other racist books and condemning their authors. You can say as much as you want that the earth is flat, since it doesn’t harm anyone, but you definitely can’t say that some race is inferior, since it harms a lot of people.

Once again, you’re confusing a pragmatic law adressing a specific issue with a massive attack against some absolute principle of freedom. But the fact is that this absolute freedom doesn’t exist. Nowhere. In no country. As long as you’ll agree with forbidding any kind of speech, you’ll have no firm ground to stand on.

86

Well…I can’t see what’s your problem. The american court ruled that a french law contradicting an american law/constitutionnal right couldn’t apply on american soil. Which is hardly a surprise. It won’t prevent french courts, I suppose, to condemn Yahoo to whatever penalty applies if they operate on french soil. Or to order to the french ISPs to block access to Yahoo or whatever else is legally and technically possible. Or Yahoo will come to some sort of agreement with the associations which sued it. Ultimately, restricting or not the “freedom of speech” will be Yahoo’s decision, based on its business interets.

By the way, it’s nothing new that a country (say the US) votes some law which would apply to foreign companies for their activity in foreign territory (is Burton-Helms the correct example, or am I messing up everything?). In this case, at least, the said activity has a consequence on french soil. In the same way that the activity of a company which would offer to ship say Cuban cigars to the US would have.

87

Dave: I know, it is annoying when someone flips an argument. Yes, the Nazis belived in restricting speech for essentially the same reasons being advocated here. Sorry.

It matters that Hitler was elected because an earlier post equated democracy with freedom. I, however, believe that separation of powers, fundamental rights (as in not subject to a vote), and an independent judiciary are equally important if not moreso. Any system can fail, I have no illusions about that. I know everyone hates an independent judiciary when it rules against something they cherish, but it limits the legislative and executive authority very well.

Nobody is saying you can call me a pedophile and not get sued. I am saying the government should not step in and jail you for it. The “State Action Doctrine” applies to constitutional rights. Basically, with some new exceptions regarding - what else - speech, it limits constitutional rights to restricting state action.

Suggestion for clairobscur: search “Stalin’s Purges,” “Khmer Rouge,” “Cultural Revolution,” “Fulda Gap,” “Warsaw Pact,” then tell me about the wonderful goals the communists had. Also, please note 13-15 of the Nazi’s 25 Points - generic socialism. The Nazis were a wolf in sheeps clothing not the “beasts” you make them out to be. I guess you are still upset about that Maginot Line fiasco and the fact that the onerous Treaty of Versailles (Point #2) was one of the main motivating forces behind German aggression against France.

Kiddie porn involves a crime (sex with children) in the making. Only recently has a case involving computer generated kiddie porn come up. Therefore the slippery slope in this area is DOA. If mine was “feable” (sic) yours is prostrate. Kiddie porn is a perfect example of punishing the act. Each film or photo is evidence of an underlying crime. Meanwhile, back at the topic, a swastika is a geometric pattern sometimes used on Roman floors.

A Brave New Farenheit 451 in 1984, France Thinks it Can Perfect Censorship

88

Sorry, I didn’t read attentively enough your post, and didn’t notice that your fear is that the ruling could be overturned.
Apart the fact that I doubt it will be…
Basically, the idea here is “can a US company send to another country something which is illegal in that country”? I know nothing about trade law, so I don’t know what would apply in usual circumstances. But it’s of course complicated here by the fact that the company can’t send a different product in different countries.

Or actually, can they? It was my understanding they couldn’t, but thinking twice I know nothing about the net. Is it possible to select what can be read in the country A, so to make sure that the content considered unlawful in the said country won’t be accessed by its citizens?

89

I’m really not interested in debating with someone who switches topic to introduce some uncalled for,irrelevant, negative and rather ignorant judgement on someone else based on his country of origin (or on all the citizens of the country, not sure what was your intent,anyway, it’s basically the same). So :

1)I won’t bother responding to your posts anymore

2)I’ll consider from now on that your opinions are mainly based on personnal prejudices, likely without any relations with the topic discussed, until proven otherwise.

90

Where were the French when the Germans overran Poland? The Polish allies, Britan and France, wanted to negotiate with, placate, or simply ignore the Nazis. The outrage about the Nazis today seems about 60 years too late. I wish someone had done something when the Nazis actually had control over a nation. Yes, shamefully the U.S. stood by as well. The Germans took land upon land and the French simply hoped it would not happen to them. Now, France is leading the fight against a book and some artifacts. There is a saying, “Armies are always preparing to fight the last war.” This seems applicable to governments and civilians also. The real trick is finding the next brutal despot like Hitler and stopping him. Germany has no monopoly on brutality.

The real lesson the Third Reich should have tought everyone was that a nation of laws, education, pageantry, and advanced technology could descend into authoritarian brutality. They had all the trappings of a civilized nation. Some think that the Germans were an obvious threat because they wore strange crosses and were anti-Semetic. This is convenient blame shifting since rampant anti-Semitism in Europe goes back over two thousand years. The Nazis did not invent anti-Semitism, they exploited it and utilized it to their own ends. The Spanish, Polish, or French flags could be viewed as anti-Semitic symbols also if one goes back into history only a few lifetimes.

If we paid attention to the structure of the Nazi regime and its philosophy - and less on the symbology - we would be in far less danger of following in its footsteps. Demonizing groups, crushing dissent, and violence are the real hallmarks of Nazism. Speech laws are just a little slice of Nazism, not the whole pie. But, it makes me uncomfortable to be goose-stepping in that direction with France as both our nations toy with new forms of censorship.

91

To bring this one back to the OP: the laws in Germany are much the same as in the Netherlands, you can’t promote Nazi-ism, no goose-stepping, no Hitler salutes, no copies of Mein Kampf on your bedside table and many other restrictions dealing with the Theird Reich. I can’t speak for the Dutch, but the Germans have these laws because the Nazis were so destructive, so vile, so obscene that most Germans don’t want anything to do with them. They don’t stick their heads in the sand about it, but they certainly don’t want it to be a part of their lives anymore. That is why they want that form of expression banned.

The English don’t feel that way about the matter and haven’t banned that form of expression, the Americans haven’t banned it and many other countries haven’t banned it either, bully for them. But Germany and the Netherlands were right in the middle of it, from the beginning to the end, and it has left its scars on the people, people who weren’t even alive during the war, everybody lives with it, knowing that their country was responsible for one of the most horrific things the world has ever seen. They have weighed up a theoretical freedom of expression in one specific instance, and all the consequences of what taking it away might entail, against a very real horror, and decided that they would rather do without that theoretical freedom than look that nightmare in the face every day. Sure we can all wring our hands about where it might lead, but in reality it hasn’t had any consequences for freedom of expression at all so where is the problem?

92

So demanding the impossible (that Yahoo! be certain that nobody from France even sees the Nazi materials) absolves the French court from the responsibilities of what actually happened (the only effective way to comply with the French court’s demands)?

Nice try.

As a point of fact, it was not the place of the French courts to make the demands to begin with (ref. my definition of citizen). The French people are free to erect a firewall around their nation, prosecute their people for having Nazi materials on their hard drives, and any other remedy that would only affect the citizens of France.

As a point of fact, Yahoo! could not have complied with the demands of the French court. The French would not back down and recognize Yahoo! as a citizen of a different sovereign nation. Yahoo! could not comply with the French ruling, a ruling that should not have affected them legally at all. But because it could, the French were able to impose their censorship on an American citizen.

So saying that the French courts did not specifically demand Yahoo! remove the materials completely falls on its face on two points: First, it was an impossible demand. A determined French citizen would have been able to access it anyway; Second, the jurisdiction of a French court does not extend to America.

93

Derleth

Huh? What is unusual about that?

By way of comparison, one of Jesse Helms’ pieces of legislation (the so-called Bacardi Act) prohibits me (as a non-US citizen or corporation) from doing business with Cuba, because if I do business with Cuba and do business with a US company, that US company suffers penalties. So, the US government impinges on my freedom to trade, not just with Americans, but with Cubans. What’s the difference?

94

You guys don’t have criminal defamation laws?

The French government might gaol Yahoo! personnel for breach of the injunction, its true, but if you breach a court order in the US you’d get gaoled for contempt (if you repeated the defamation, for example, despite a court order nto to do so).

95

Yes it does and can, in practice - world wide injunctions are granted regularly by other courts.

But this misses the point: the text “broadcast” if you like by Yahoo!'s server shows up on French soil on a Frenchman’s or Frenchwoman’s computer screen..

Where is cyberspace? Its in America, for sure - but its also everywhere else, and especially where the text appears on a screen.

So an American company can disobey a French law by making accessible the opportunity to purchase Nazi stuff, because that opportunity appears on French sovereign soil, and so falls under French jurisdiction.

Its a complicated issue. A recent case in the US had a painting in London, a server in Canada, and the infringer of copyright in the painting in the US. Should the person whose copyright be infringed sue in England, the US or Canada? The infrined party sued in the US, as it turns out, and a superior court in the US decided it should apply English law. Academics lambasted the decision, and before anyone could appeal, the court took the amazing step of withdrawing its own decision, and re-issuing a new one, saying US law applied. If its complicated enough for a senior US judge, how do we mere mortals cope?

While you are busy accusing the French court of acting outside of the realm of French sovereignty, betcha good money (without knowing for a fact) the US has a law which prevents people from offering shares for sale over the internet to US citizens, as an infringement of US securities laws. By your argument, I should be aghast that the US government is infringing upon my rights as a resident of Hong Kong not to allow US citizens the opportunity to invest in my excellent pyramid scheme, which I guarantee will make investors millions! Most Western countries have these rules.

I mentioned balkanisation of the internet before as a real risk, and this is why.

96

[QUOTE]
*Originally posted by Derleth *
**

Err…I never wrote that…So, why does it appear as a quotation from me??? Anyway…Yahoo may insist on a point, but I would like to know if they actually can do it or not (limit access to certain regions)?

  1. Yahoo isn’t a citizen, it’s a company.

2)Any court is competent for delicts or crimes committed on his territory, the fact that the offenser (individual or company) is foreign or not, the place where he lives, etc…are totally irrelevant. Or can I go to the US, kill someone, and then say : “I’m french, you can’t arrest me!”. Yahoo offer to sell on the french territory an item which is illegal on the french territory. A french court condemn Yahoo. That’s perfectly legal and usual.

1)Yahoo isn’t a citizen but a company (again)

2)Courts in a given country are always competent for delictuous acts committed in the said country (again)

3)The judgement affect them legally (again) They can avoid the consequences if they don’t operate in France and have no interest there. In the same way I could import illegally cuban cigars in the US and avoid the consequences of the (legal) US judgement by coming back to France where selling cuban cigars isn’t unlawful. But if I’ve a bank account in the US, the US authorities could (legally) seize my money fore the fine I’ve been condemned to pay. Yahoo is exactly in the same situation.

4)The french didn’t impose their censorship on american citizen. Only an american court could force Yahoo, based in the US, to change the content of its sites. And the american court didn’t.But Yahoo can decide to change the content anyway in order to be able to operate in France. That’s a commercial decision.

In the same way, a french company could decide not to work with a given “rogue state” to comply with an american law, in order to not be condemned by an american court. Or it could choose to make business with the said state, but not operate in the US. Same situation exactly for Yahoo. b

Nobody said that the juridiction of a french court extend to the US, in particular not the american court. But it certainly extend to an american company operation on french soil. Since I don’t know what exactly was the demand made , on what basis and by whom, I won’t comment it.

And the fact Yahoo said it’s impossible isn’t a proof for me. I’ve no competence to know if it’s actually technically impossible or not.

97

Just read on another thread about child pornography a statement. By…err…just forgot (JamestheVool, I believe), which IMO illustrate the difference about freedom of speech in the US and France :

"It is definitely illegal for a white supremacist to publish a leaflet saying “we’re gathering at 3:00 this Saturday in the town square. Bring kerosene, guns, and ropes. Then we will proceed to the houses of the following n*****s in quick succession, and kill them in the following fashions…”. It is definitely legal for a white supremacist to publish a leaflet saying “white people should rule this country as is their right, and stand up for those rights, with violence if necessary”.

In France, as opposed to the US (assuming that the poster is right), the second leaflet would definitely be illegal, as “incitment to racial hatred”.

98

Where do we Europeans go with this sort of thing once the European Corpus Juris comes in?

For instance; a five minute walk from my office there is a militaria shop that will sell you just about anything the Nazis ever made (BTW it’s biggest customers are Americans!). THis is perfectly legal in Britain, and in fact not a big deal (we had a very diffrerent war to mainland europe and didn’t have to suffer under the Nazis directly).

So that’s two European states 3 hours by train apart, with two totally contradictory laws. Will the French be able to enforce this law if this shop were to operate a mail order business (which I’m pretty sure it does)?

99

clairobscur:

I can assure you it is impossible. Why? Because the only way a site knows where you are from is by looking at the IP address of the packets it gets from you. You can go through a proxy that takes your packets and repackages them as theirs, with a consequently different IP address. If the proxy is on American soil, or is associated with and American domain name, for all Yahoo! (or anyone else) knows, the packets came from America. There are proxies of varying degrees of cleverness, and proxy-busting methods of varying degrees of cleverness, but AFAIK the Mixmaster type of proxy is very nearly unbreakable, and it is freely available.

Corporations are citizens because they pay taxes just like an individual. In fact, courts have ruled them legal people, just as you are, with protections of free speech (which applies to the campaign contribution debate as well). So, legally, Yahoo! is just as much a citizen as you are.

Ah, but was it on French soil? The images exist on a server on American soil. No physical transferr of those images took place. As far as I’m concerned, that takes the crime out of the French courts entirely.

But Yahoo! effectively operates everywhere, because its images can be accessed (sometimes with a little cleverness) from anywhere. So the French decision to make Yahoo! censor itself to operate in France is effectively making Yahoo! censor itself everywhere, including in America. The French courts would have (and could have) kept up against Yahoo! as long as its images were accessable to anyone, because their images would have been accessable to everyone. The Internet does not discriminate, and it is no respector of international borders. Demanding it cater to France is simply lunacy.

100

Derleth

“Everywhere” includes France. So France gets jurisdiction. And so does the US. And so does Vanuatu. Which one gets priority? None, because they are all equal sovereign nations. So restrictions rule, and you’ll get busted in the country with the restrictions, and not in those without.

If Yahoo wants to do business in France, its got to respect French laws. Which clearly apply. Simple as that.