It's good news that the 9th Circuit has granted [pdf] en banc review of the Yahoo! decision.

A little review.  Back in November 2001, the federal district court in the Northern District of California decided [pdf] that enforcement of a French order (requiring Yahoo! to block access by French citizens to particular material) was violative of the First Amendmentl.  "A United States court constitutionally could not make such an order," the court said.

The Ninth Circuit then said that US courts didn't have jurisdiction over the French plaintiff in the original French case.  Translated:  "Yahoo!, you have to wait until the French plaintiff actually comes here to the US to enforce the order they obtained in France.  Until they do that, we can't say anything about the constitutionality of the order." 

But the problem with that standard is that it has the effect of enforcing an unconstitutional order.  Here's why:  If Yahoo! (or another online publisher) has to operate in fear of foreign courts suddenly ordering them to block particular things, and can't ask a local court to clear the air ("that order can't possibly work here -- it's unconstitutional"), they'll prudently take down the risky material entirely.  It just won't be worth it to run the risk that daily damages will continue to mount up while the online site waits for the foreign judgment to arrive on its local shores.  CDT and others filed [pdf] an amicus brief making this point (much more elegantly) before the 9th Circuit, and asking for the entire panel of 9th Circuit judges to reconsider this very important case.

It's very good that the 9th Circuit is taking this on.  The only rational rule that will keep the internet ticking along is to make sure that sovereigns only get to boss around those sites over which they have legitimate power.  (Because the French plaintiff took several acts in the US directed towards Yahoo!, the US courts have legitimate power to issue an order about the constitutionality of the judgment.)

France shouldn't be able to use the threat of an unenforceable judgment to silence a company over which it has no legitimate control (that doesn't "touch down" in France in some significant, intentional way).  Similarly, the US shouldn't be able to use the threat of unenforceable judgments to silence offshore companies over which it has no legitimate sway (like, say, gambling sites).  Bravo to Yahoo! for pushing forward with this case -- it's important for all shapes, sizes, and persuasions of online sites.