Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'antisemitisme

FISHER, Circuit Judge,

with whom HAWKINS, PAEZ, CLIFTON and BEA, Circuit Judges, join, concurring in part and dissenting in part: 1

I. Overview

Stated simply, the issue before us is whether a United States Internet service *1234 provider, whose published content has been restricted by a foreign court injunction, may look to the United States federal courts to determine the enforceability of those restrictions under the United States Constitution’s First Amendment. The French injunctive orders — backed by substantial, retroactive monetary penalties for noneompliance — require Yahoo! to block access from French territory to Nazi-related material on its website. 2 Some prohibited content is readily identifiable, such as Nazi artifacts or copies of Mein Kampf Much, however, is not. The orders impose the following sweeping mandate:

We order the Company YAHOO! Inc. to take all necessary measures to dissuade and render impossible any access via Yahoo.com to the Nazi artifact auction service and to any other site or service that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes.

(Emphasis added.) In traditional First Amendment terms, this injunctive mandate is a prior restraint on what Yahoo! may post (or control access to) on its U.S.located server — imposed under principles of French law and in such facially vague and overbroad terms that even the majority does not know “whether further restrictions on access by French, and possibly American, users are required” to comply with the French orders. (Op. at 1223.) Yahoo! can either hope to comply with what the French court (and the defendants here) deems to be inappropriate content by attempting to block access to material Yahoo! thinks the orders cover or by simply removing any questionable content altogether. Or Yahoo! can ignore the French court’s mandate in whole or in part and accept the risk of substantial accruing fines. The majority, however, is unmoved. For it, Yahool’s proper recourse is to take its case back to France. We cannot agree.

As the district court readily concluded in its thoughtful opinion, “[a] United States court constitutionally could not make such an order.” Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1189 (N.D.Cal.2001) (hereinafter “Yahoo II”). It specifically found that the orders are “far too general and imprecise to survive the strict scrutiny required by the First Amendment,” and that “[pjhrases such as ‘all necessary measures’ and ‘render impossible’ instruct Yahoo! to undertake efforts that will impermissibly chill and perhaps even censor protected speech.” Yahoo II, 169 F.Supp.2d at 1189 -90 (citing Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 , 107 S.Ct. 2568 , 96 L.Ed.2d 500 (1987); and Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972)). The district court emphasized that “ ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Id. at 1190 (quoting Elrod v. Burns, 427 U.S. 347, 373 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971))).

The issue is not whether the French defendants who obtained the injunctive orders, or the French court that issued them, are justified in trying to suppress hateful speech. We of course recognize the horrors of the Holocaust and the scourge of anti-Semitism, and France’s understandable interest in protecting its citizens from those who would defend or glorify either. Nor is the issue one of extraterritorial application of the First Amendment; if anything, it is the extra-territorial application of French law to the United *1235 States. We do not question the validity of the French orders on French soil, and Yahoo! has complied with the orders as they relate to its <fr.yahoo.com> website. Rather the question we face in this federal lawsuit is whether our own country’s fundamental constitutional guarantee of freedom of speech protects Yahoo! (and, derivatively, at least its users in the United States) against some or all of the restraints the French defendants have deliberately imposed upon it within the United States. “ ‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’ ” Tory v. Cochran, —U.S.-,-, 125 S.Ct. 2108, 2111 , 161 L.Ed.2d 1042 (2005) (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976)).

The majority, after properly opening the door to the federal courthouse by upholding personal jurisdiction, nonetheless turns a blind eye to the constitutional free speech interests of Yahoo!, throwing it out of court because those interests are not “ripe” for adjudication. The majority’s thesis rests on the contention that the French “orders do not by their terms limit access by users outside France in any way.” (Op. at 1216.) But as the majority recognizes elsewhere in its opinion (Op. at 1216 -1218), the crux of this case is not in the words of the order alone, but in their application. And to assess the effects of the orders, one cannot simply disregard the “what” of the orders and focus only on their “who.”

As we shall explain later, we disagree with the majority’s conclusion that uncertainties about whether Yahoo! can technologically isolate the effects of the orders only to France-based users compel us to withdraw the case from the district court. Even assuming such uncertainties exist and are material, the district court is fully capable of exercising its factfinding role to resolve them. But there is no uncertainty that the mandate imposed on Yahoo! is also content based, and the orders identify that content in terms that on their face are overbroad and vague. They require Yahoo! to guess what has to be censored on its Internet services here in the United States, under threat of monetary sanction if it guesses wrong. In that respect, the orders are facially unconstitutional.

By their terms, the orders reach “any other site or service [in addition to the auction service] that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes.” (Emphasis added.) As the district court rightly understood, this is the crux of YahooFs facial overbreadth and vagueness concern:

Yahoo! seeks protection for its actions in the United States, specifically the ways in which it configures and operates its auction and Yahoo.com sites. Moreover, the French order requires Yahoo! not only to render it impossible for French citizens to access the proscribed content but also to interpret an impermissibly overbroad and vague definition of the content that is proscribed.... In light of the Court’s conclusion that enforcement of the French order by a United States court would be inconsistent with the First Amendment, the factual question of whether Yahoo! possesses the technology to comply with the order is immaterial. Even assuming for purposes of the present motion that Yahoo! does possess such technology, compliance still would involve an impermissible restriction on speech....

Yahoo II, 169 F.Supp.2d at 1193-94 (emphasis added).

Surely the majority is not suggesting that Yahoo! has no First Amendment protection from being sanctioned when it could not guess or it guessed wrong as to what it was supposed to censor on its *1236 domestic servers' — even if limited to France-based users. (And if not so limited, so much the worse.) Yet the majority faults Yahoo! because — like Yahoo! itself— we do not know whether its current activities are permitted by the orders. (Op. at 1216.) This is to apply First Amendment precedents exactly backwards. As the majority admits, “[t]he boundary line between what is permitted and not permitted is somewhat uncertain for users in France.” (Op. at 1222.) Under such circumstances, we blame the law, not the speaker.

Instead, the majority effectively imposes an exhaustion requirement on Yahoo! to litigate this issue in France, confirm that it is still is not in compliance with the orders (just as it was not on May 22 and November 20, 2000) and obtain a “final” adverse judgment before the majority will consider this case ripe. In doing so, the majority imposes a heightened standard on a U.S. plaintiff seeking to vindicate its First Amendment rights when that plaintiff is challenging a foreign prior restraint. Principles of ripeness (or comity) do not require this result. The extraordinary hurdles the majority creates are inconsistent with our established jurisprudence protecting this country’s tradition of free expression. See, e.g., City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 , 108 S.Ct. 2138 , 100 L.Ed.2d 771 (1988) (holding that a plaintiff need not have applied and been denied a newspaper rack license before challenging a city ordinance as an unconstitutional prior restraint on speech). To say so is not to deny France’s interests in protecting its own citizens from harmful speech, but only to recognize that federal courts have the duty to adjudicate and uphold the legitimate constitutional rights of litigants who have properly invoked our federal jurisdiction.

In correctly sustaining personal jurisdiction over the defendants and in finding an Article III case or controversy, the majority concedes the central dilemma Yahoo! faces as a result of the French injunction. “[W]hile Yahoo! does not independently wish to take steps to comply more fully with the French court’s orders, it states that it fears that it may be subject to a substantial (and increasing) fine if it does not.” (Op. at 1210.) Acknowledging the obvious chilling effect of the injunction, the majority recognizes that “[e]ven if the French court’s orders are not enforced against Yahoo!, the very existence of those orders may be thought to cast a shadow on the legality of Yahoo!’s current policy.” (Op. at 1210-1211.)

But unfortunately the majority then stops short, concluding that the “level of harm [suffered by Yahoo!] is not sufficient to overcome the factual uncertainty bearing on the legal question presented and thereby to render this suit ripe.” (Op. at 1221.) With respect, the majority creates its own factual dilemma — and bad First Amendment precedent — in its attempt to find daylight between its holdings on personal jurisdiction and ripeness. We agree that the Calder “effects” test, see Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir.2004) (citing Calder v. Jones, 465 U.S. 783 , 104 S.Ct. 1482 , 79 L.Ed.2d 804 (1984)), need not be satisfied by the same degree of harm as ripeness (Op. at 1218), but the majority’s rationale for finding the harm sufficient in one instance and deficient in the other is seriously flawed.

By peremptorily terminating Yahool’s access to federal court, the majority establishes a new and burdensome standard for vindicating First Amendment rights in the Internet context, threatening the Internet’s vitality as a medium for robust, open debate. It also bypasses the factfinding role of the district court — failing to credit much of what the district court found on *1237 the record as litigated below, and removing the district court from the process of resolving the factual issues the majority now finds so vital to Yahool’s First Amendment claims. Accordingly, although we concur in that part of the majority’s opinion upholding personal and Article III jurisdiction, we respectfully dissent from its ultimate holding that this case is not ripe for adjudication.

II. Prudential Ripeness

The majority invokes prudential ripeness because it finds Yahool’s circumstances suffer from “prematurity and abstractness” that preclude our reaching Yahool’s claim that the French injunction on its face violates the First Amendment. (Op. at 1211-1212.) As did the district court, we conclude otherwise.

A. Fitness of the issues for judicial resolution

1. A “purely legal” question

The majority holds this case unfit for judicial resolution by suggesting that it does not involve a “purely legal” question, Abbott Laboratories v. Gardner, 387 U.S. 136, 149 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967), but instead requires us to sort through factual uncertainties, which ultimately make adjudication inappropriate. (Op. at 1212.) Yet even if the majority were correct that Yahooi’s case suffers from a lack of factual development, it does not follow that the suit is therefore rendered unripe. When a dispositive fact is missing from the district court record, we usually remand for further factfinding. We do not peremptorily throw litigants out of court and expect them to petition a foreign court for relief.

To begin with, this case fundamentally involves a straight-forward legal question: whether the French injunction as ordered against Yahoo! runs afoul of the First Amendment. The answer calls for a legal application of free speech doctrine to final orders that on their face are vague and overbroad. True, the defendants must take steps in the French court to initiate actual enforcement, but Yahoo! is subject to the orders and to a retrospective financial penalty for noncompliance. The majority’s argument that we should give weight to the label “interim” because it indicates that “the French court contemplated that it might enter later orders” is a make-weight. (Op. at 1215.) A court may contemplate issuing subsequent orders whether or not a prior order on the subject is called “interim” or “final.” We need not be distracted by the label “interim,” because, as the district court found, “there is no dispute that the French order is valid under French law and that the French Court may fix a penalty retroactive to the date of the order.” Yahoo II, 169 F.Supp.2d at 1190 .

Cases involving far less definitive or targeted mandates — not yet enforced against the complaining party — have been treated as final actions ripe for adjudication. In Abbott Laboratories , one of the majority’s lynchpin cases, drug manufacturers challenged the Food and Drug Commissioner’s regulation requiring that their products’ labels show both a drug’s generic and its brand name. The Supreme Court, addressing the “purely legal” issue presented, held that the regulation was a final agency action, even though it was a statement of general applicability and violations of the new rule could be enforced only by the Attorney General authorizing criminal and seizure actions. 387 U.S. at 151-52 , 87 S.Ct. 1507 . The Court held the case ripe for pre-enforcement review because the Commissioner’s labeling order placed “petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.” Id. at 152 , 87 S.Ct. 1507 . The Court cited the district court’s finding that petitioners either “ ‘must com *1238 ply [with the label changeovers] ... or they must follow their present course and risk prosecution’ ” and concluded that the latter “course would risk serious criminal and civil penalties for the unlawful distribution of ‘misbranded’ drugs.” Id. at 152-53 , 87 S.Ct. 1507 . See also Frozen Food Express v. United States, 351 U.S. 40, 43-44 , 76 S.Ct. 569 , 100 L.Ed. 910 (1956) (holding justiciable a challenge to an Interstate Commerce Commission rule because violations could be punished by criminal sanctions and the rule itself would cause companies to conform their behavior to the regulation); cf. United States v. Storer Broadcasting Co., 351 U.S. 192, 198 , 76 S.Ct. 763 , 100 L.Ed. 1081 (1956) (finding standing to challenge a Federal Communications Commission rule limiting radio licenses even though the broadcaster had not yet received an unfavorable decision). 3

The final, targeted injunction before us presents the same kind of purely legal issue — with Yahoo! confronting the dilemma of whether or not to stand by its United States constitutional rights or constrain its speech and that of its users to avoid a French-imposed penalty. Legions of cases permit First Amendment challenges to governmental actions or decrees that on their face are vague, overbroad and threaten to chill protected speech. Indeed, the sweeping injunction here presents just such a paradigmatic case. See, e.g., Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th Cir.1996) (rejecting a ripeness defense to a facial attack on blanket travel restrictions to Cuba under the First and Fifth Amendments, even though the plaintiff group had never applied for a license, because the case presented purely legal questions); see also Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129-30 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992) (addressing a facial First Amendment challenge to a licensing scheme even though the plaintiff had never applied for a permit, citing numerous First Amendment cases involving facial claims); Steffel v. Thompson, 415 U.S. 452, 459 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974) (concluding that petitioner had established an actual controversy based on his threatened criminal trespass arrest by state police for distributing political handbills and holding that he did not need to “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”). Yahoo! seeks nothing more than for a United States court to resolve its legal claim that the French court injunction by its very nature — in whole or in part — threatens Ya- *1239 hoofs protected speech. See NAACP, W. Region v. City of Richmond, 743 F.2d 1346 , 1352, 1358 (9th Cir.1984) (upholding standing to bring facial challenge to “substantially overbroad” city parade ordinance).

2. Comity and the repugnance of unconstitutional injunctions

We do not agree with the majority’s professed uncertainties as to whether a California court, under principles of comity, would be inclined to enforce a foreign court order that infringes upon a U.S. corporation’s First Amendment rights. The “repugnancy” standard the majority invokes is easily satisfied here. California’s ease law and its federal underpinnings tell us to honor foreign court judgments unless they “prejudice the rights of United States citizens or violate domestic public policy.” In re Stephanie M., 7 Cal.4th 295 , 27 Cal.Rptr.2d 595 , 867 P.2d 706 , 716 (1994) (citing Hilton v. Guyot, 159 U.S. 113, 202-03 , 16 S.Ct. 139 , 40 L.Ed. 95 (1895); and Victrix S.S. Co. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987)). The French orders on their face— and by putting Yahoo! at risk of substantial penalties — violate the First Amendment and are plainly contrary to one of America’s, and by extension California’s, most cherished public policies. 4 In short, they constitute a foreign judgment that is “repugnant to public policy.” (Op. at 1215.)

The district court considered the role of comity but ultimately found that it was outweighed by U.S. constitutional freedoms. “Although France has the sovereign right to regulate what speech is permissible in France, this Court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.” Yahoo II, 169 F.Supp.2d at 1192 . This finding does not mean that every foreign court judgment implicating speech in the United States would be deemed repugnant to American public policy and therefore unenforceable, but this particular judgment is so vague and overbroad that it fails the repugnancy analysis. Significantly, the defendants do not argue to us that the French injunction comports with the First Amendment. Indeed, they did not even appeal the district court’s ultimate finding that the orders are unconstitutional.

The majority goes to great lengths to avoid labeling a prior restraint on speech — overbroad and vague by its terms — as “repugnant to public policy” and is content to leave in place foreign *1240 court orders that so obviously violate the First Amendment. (Op. at 1215.) In reaching this result, the majority has succumbed to an error of logic. It has conflated foreign orders that are somewhat inconsistent with U.S. law with those that violate U.S. law. It is one thing for U.S. courts to pass on foreign attorney’s fees larger than what domestic laws would award, see In re Hashim, 213 F.3d 1169 , 1172 (9th Cir.2000), or to recognize a judgment pursuant to a foreign statute of limitations longer than that of its domestic analogue, see Milhoux v. Linder, 902 P.2d 856, 861-62 (Colo.Ct.App.1995). It is quite another to imply, as the majority does, that a violation of the U.S. Constitution is no different from any other “[ijnconsistency with American law,” which the majority claims “is not necessarily enough to prevent recognition and enforcement of a foreign judgment in the United States.” (Op. at 1215.)

Neither In re Hashim nor Milhoux implicated federal or state constitutional rights. Indeed, both cases held that the foreign judgments being challenged were not repugnant to the public policy of either Arizona or Colorado, respectively. Where a foreign judgment was held to be repugnant to California’s public policy, the repugnancy was based on the violation of California’s Uniform Child Custody Jurisdiction Act that would have resulted had the foreign order been enforced. See In re Stephanie M., 27 Cal.Rptr.2d 595 , 867 P.2d at 716 . The majority provides no explanation why the California courts would refuse to enforce a foreign judgment that violated a state statute, yet be willing to enforce a foreign judgment that violates the federal (and perhaps the state) Constitution.

The majority’s dictum implying that foreign judgments that would be unconstitutional if entered by a U.S. court may nonetheless be enforceable is troubling. Under the principles articulated today, a foreign party can use a foreign court decree to censor free speech here in the United States on any range of subjects it finds objectionable — religion, democracy, gender equality — in the name of enforcing its own country’s laws. The good intentions of even sympathetic foreign parties such as LICRA and UEJF in this case are not the standard. How could a California court honor the French defendants’ good intentions in proscribing pro-Nazi speech when the City of St. Paul’s good intentions did not cure its anti-hate speech code of viewpoint discrimination and constitutional infirmity even when directed at cross-burnings? See R.A.V. v. City of St. Paul, 505 U.S. 377, 392 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 (1992) (“St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”); see also Collin v. Smith, 578 F.2d 1197, 1201 (7th Cir.), cert. denied, 439 U.S. 916 , 99 S.Ct. 291 , 58 L.Ed.2d 264 (1978) (striking down on First Amendment grounds several Skokie, Illinois ordinances prohibiting the National Socialist Party of America from marching through the town: “First Amendment rights are truly precious and fundamental to our national life.... It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.”)

People in the United States and France should abhor anti-Semitism and the horrors perpetrated by the Nazi Party. Nonetheless, our constitutional law differs from French jurisprudence in our approach to hate speech. Our law reflects deeply held political beliefs about freedom of expression in this country. Borrowing Justice Brandeis’s formulation, “the remedy to be applied [to expose falsehood and fallacies] is more speech, not enforced si *1241 lence.” Whitney v. California, 274 U.S. 357, 377 , 47 S.Ct. 641 , 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).

3. The alleged lack of factual development

Even accepting the majority’s assumption that this case does not turn on purely legal issues, the concerns the majority invokes as reasons to withhold judicial resolution are either unconvincing or at most reasons for remand. For instance, the majority seems to call into question whether the French court’s injunction is sufficiently final because the orders are labeled “interim,” notwithstanding their unconditional and mandatory language. (Op. at 1215.) In considering whether the injunction survives U.S. laws, we must take the orders issued by the French court as final actions, reflecting that court’s view of Ya-hooFs conduct and current obligations under French law. There is no reason for us to assume that the French court intends something different from the words of its own mandatory orders — just as we would not assume that a U.S. federal or state court would not stand by an injunctive order it has issued.

Moreover, by insisting on withholding judicial resolution, the majority disregards the district court’s factual determinations, and its role in resolving factual disputes. First, with respect to the content at issue, the majority minimizes the district court findings that Yahoo! hosts content violating the specific terms of the orders. As the district court found, Yahoo! “continues to offer at least some Third Reich memorabilia as well as Mein Kampf on its auction site and permits access to numerous web pages with Nazi-related and anti-Semitic content.” Yahoo II, 169 F.Supp.2d at 1189 . The district court took judicial notice from its own search of the site (in October 2001) that using the keyword “Nazi” called up 69 Nazi-related items posted for sale, such as stamps, coins and a copy of Mein Kampf Id. at 1185 n. 3. The district court also conducted keyword searches on YahooFs general website, finding thousands of sites referring to “Jewish conspiracy,” promoting modern-day Nazism or suggesting the Holocaust did not happen. Id. at n. 4. 5

Clouding the majority’s view of the facts are the defendants’ assertions before us and in the district court that they “have no present intention of taking legal action against Yahoo! in the United States” because they consider Yahoo! to be in “substantial compliance with the French order.” Yahoo II, 169 F.Supp.2d at 1188 . But the French court has never made such a determination of YahooFs alleged compliance. Instead, the majority speculates that because Yahoo! France has “complied [in France] in large measure with the spirit and letter” of the May 22 French order, “compliance ‘in large measure’ by Yahoo! is very likely to be satisfactory to the French court.” (Op. at 1215-1216.) But Yahoo! is not Yahoo! France, and the French court did not' explain the factual basis for its finding of compliance.

Nor have the defendants ever taken any steps to stipulate in a legal forum that Yahoo! is in compliance with the injunction. Thus the district court properly gave no weight to the defendants’ professions of YahooFs substantial compliance. The court pointedly observed that the defendants “have not taken steps available to *1242 them under French law to seek withdrawal of the orders or to petition the French court to absolve Yahoo! from any penalty,” Yahoo II, 169 F.Supp.2d at 1188 , and they gave no indication they would pursue such measures when pressed on the subject. Id. at 1189 n. 7.

During oral argument before us, defense counsel conceded that the defendants did not want to foreclose their options by agreeing to such a stipulation. As the majority recognizes (Op. at 1204), should Yahoo! alter its content in a way that the defendants disapprove of, they want the judicial authority to seek relief and mandate YahooPs compliance. (Oral Arg. 1:02.) The majority in large part hinges its analysis on the defendants’ litigation position of saying that they have no problem now with YahooPs conduct but declining to take any steps to eliminate the speech injunction or accruing financial penalties. See Abbott Laboratories, 387 U.S. at 154 , 87 S.Ct. 1507 (concluding that the “subsequent representation of the Department of Justice” that it was likely to impose only civil sanctions for violations, thus mitigating the harm to the plaintiff, “should not suffice to defeat” the claim); see also Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.1999) (disregarding attorney general’s claim that she lacked authority to carry out specific threat of prosecution in holding that a real controversy existed for purposes of Article III).

The majority claims that “we do not know whether the French court would hold that Yahoo! is now violating its two interim orders.” (Op at 1215.) Ironically, the majority thereby highlights the very threat Yahoo! faces. Uncertainty about whether the sword of Damocles might fall is precisely the reason Yahoo! seeks a determination of its First Amendment rights in federal court. See Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 , 265 n. 13, 111 S.Ct. 2298 , 115 L.Ed.2d 236 (1991); Chang v. United States, 327 F.3d 911 , 921 (9th Cir.2003) (recognizing that this court does not require “Damocles’s sword to fall” before it will'adjudicate a case).

In sum, the uncertainties Yahoo! faces are not reasons to delay adjudication. Rather, they provide a compelling basis for a federal court to hear YahooPs First Amendment challenge at this time, as the district court did.

The fact that Yahoo! does not know whether its efforts to date have met the French Court’s mandate is the precise harm against which the Declaratory Judgment Act is designed to protect. The Declaratory Judgment Act was designed to relieve potential defendants from the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating suit at his leisure or never.

Yahoo II, 169 F.Supp.2d at 1189 (emphasis added). 6 Instead, the majority turns Ya *1243 hoo!’s uncertainties against it — relegating it to the French courts for clarification and absolution.

B. Substantial hardship of withholding judicial consideration

Even more perplexing is the majority’s conclusion that Yahoo! does not face “substantial hardship” because of our unwillingness to adjudicate its First Amendment claim. The majority attempts to avoid the obvious chilling effect of an overbroad and vague injunction in two creative and troubling ways. First, the majority opines “with some confidence” that Yahoo! need not fear the enforcement of a fine because “it is exceedingly unlikely that the sword [of Damocles] will ever fall” (Op. at 1218) — another speculative assessment, we submit. It also faults Yahoo! for failing to proffer examples of “anything that it is now not doing but would do if permitted by the orders” (Op. at 1220) and thereby imposes a new, higher burden on a First Amendment plaintiff to establish a chilling effect.

1. The French orders chill speech

First, the majority overlooks YahooPs claim that it faces actual abridgment of its current speech' — -not just a chilling effect on its ever-changing Web content. As the majority does acknowledge, Yahoo! hosts content on its auction site, including the sale of Mein Kampf that is specifically prohibited by the terms, of the injunction. The district court’s findings of impermissible material still present on the auction' site demonstrate that Yahoo! is currently engaged in speech that the French orders — by their terms — compel it to foreclose to some users or forgo entirely. Yahoo! opts not to accede to the injunction, thereby incurring daily accumulating fines should its current or future behavior displease LICRA or UEJF. Certainly Yahoo! should not have to abstain from conduct it believes is constitutionally protected solely for us to find its claim ripe. Cf. City of Auburn, 260 F.3d at 1173 (9th Cir.2001) (noting that finding case unripe would require party to comply with “costly and cumbersome” franchise requirements, only for the party to then raise “exactly the same argument that it makes here”).

More importantly, the majority largely ignores the broad and diffuse scope of the French injunction — which extends well beyond YahooPs auction site and clearly raises the question whether it is substantively possible for Yahoo! to comply. Apart from entirely obvious cases, how can one determine with any certainty whether something “may be construed as constituting an apology for Nazism or a contesting of Nazi crimes”? The majority makes the rather startling assertion that “[b]efore the district court can engage in useful factfinding, it must know whether (or to what extent) Yahoo! has already sufficiently complied with the French court’s interim orders.” (Op. at 1222.) Of course, this is precisely the crux of YahooPs predicament — and *1244 highlights the vagueness and overbreadth of the orders. We know the actions Yahoo! has taken and not taken with respect to Nazi paraphernalia appearing on its site. The only reason we cannot determine “whether (or to what extent) Yahoo! has already sufficiently complied” with the French orders is because we cannot assess the scope of the orders themselves. 7 It is this very kind , of uncertainty that epitomizes a purely legal question of facial infringement of First Amendment rights and the harms routinely associated with such an infringement.

In plain terms, if no one but the French court can decipher the meaning of its injunction aimed at YahooPs speech, how can Yahoo! comply? Yahoo! has to know what content it has to screen from France-based users. The French orders contain no meaningful instructions for Yahoo! to winnow permitted speech from unpermitted speech. It is the absence of a discernible line between the permitted and the unpermitted that makes the orders facially unconstitutional. As the district court concluded, and as discussed previously', “compliance would still involve an impermissible restriction on speech” because it would require Yahoo! to interpret the vague and overbroad injunction as to what content is prohibited and which users should be denied access, on pain of substantial penalty should it guess wrong. See Yahoo II, 169 F.Supp.2d at 1193-94 .

Ultimately, the majority’s parsimonious treatment of the free speech issues here culminates with its reducing YahooPs argument to an interest in merely “allowing access by users in France” to Nazi materials. (Op. at 1221.) Yahoo! is allegedly seeking “a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others.” 8 (Op. at 1221.) Notably, even the defendants have not construed Ya-hooPs First Amendment argument in such crabbed terms.

But ■ suppose Yahoo! really were concerned only with not having to act in the United States as an enforcer of France’s restrictions on Internet access by France-based users. That would not make the constitutional implications of the effects on YahooPs United States operations go away. Yahoo! cannot merely act in France to restrict access by users located in France; the French orders require Yahoo! to make changes to its servers and protocols in the United States. That Yahoo! seeks First Amendment protection from having to compromise its domestic operations to comply with a foreign injunction *1245 does not translate into its seeking the right simply to violate French law. This case is not about the extra-territorial application of the First Amendment; it is about the extra-territorial application of France’s anti-Holocaust denial speech codes and the extent to which compliance may infringe YahooFs rights of free speech here in the United States.'

The majority, however, views the French orders as concerning “speech accessible solely by those outside the United States.” (Op. at 1217.) Additionally, it accepts that Yahoo! can screen out access to any prohibited materials by “most”— estimated to be 70-90% — of France-based users. (Op. at 1216.) This reasoning is flawed in several respects.

First, Yahoo! does not target specific users by initiating content directed solely at them. Rather, anyone who logs on to, including users in France, gains access to material on YahooFs méssage boards, search engines, auction sites and other services. It is the accessing of vaguely and overbroadly described content — by anyone in French territory — that the orders prohibit and hold Yahoo! responsible for preventing. Thus, even if one could readily and reliably limit the universe of Internet users whose access must be censored — an assumption the record before us does not justify- — -Yahoo! would still be at a loss to define the universe of content it must censor.

Second, the factual question of whether it is technologically feasible for Yahoo! to monitor the postings and filter the millions of users accessing the website — assuming such technology actually bears on YahooFs First Amendment claims — is an unresolved issue that should be returned to the district court. The parties have not addressed the specifics of technical feasibility issue on this appeal, nor the validity of the experts’ report. Thus the 70% and 90% figures the majority adopts from that report depend solely on the majority’s reading of a translated technical and ambiguous document, the scientific merits of which have not been addressed even in the district court. LICRA and UEJF did raise the issue of feasibility below, but the district court denied them discovery regarding technological feasibility of screening France-based users because it deemed the issue immaterial to the court’s First Amendment ruling. See Yahoo II, 169 F.Supp.2d at 1194 . The defendants have not appealed either the district court’s First Amendment decision or its discovery ruling. To the extent that the technological feasibility issue has been argued at all on appeal, Yahoo! has said that it “could not monitor the content of these millions of postings and listings to its U.S.-based Internet services” and that it essentially faces a binary choice between self-censorship and paying the French fines.

On the record before us — lacking expert testimony and cross-examination, much less district court findings of fact — we do not believe we as appellate judges can or should accept as a given that Yahoo! can readily and reliably identify 70% of the users it must censor, “irrespective of whether a Yahoo! user sought access to an auction site, or to a site denying the existence of the Holocaust or constituting an apology for Nazism.” (Op. at 1203 -1204.)

This is particularly true given that the experts’ report is replete with hearsay, technological assumptions and disclaimers. Most importantly, the experts explicitly limited their analysis to how an Internet “surfer” in France could be prevented from accessing prohibited content only on YahooFs auction site, not all such content that might find its way onto generally. As the experts emphasized — echoing YahooFs own concern about the imprecision of the orders:

The decisions of the [French] court and the demands made are precisely direct *1246 ed against the auctions site. No grievance against any other Yahoo! sites or services is formulated with sufficient precision to enable the consultants to propose suitable and effective technical solutions. In these circumstances, the consultants will therefore confine their answers to the matter of the auctions site.... 9

(Emphasis added.) The experts also emT phasized, “[t]he measures to be taken depend upon the particular case in point. They cannot be generalised to all sites and services on the Internet. In this case, the site in question is pages.auctions.yahoo.com.” (Emphasis added.)

Of course, the French orders do not solely prohibit content on Yahool’s auction site but, by their terms, encompass content on all of Yahool’s services. Yahool’s services extend far beyond its auction site and include its search engine, e-mail, classified listings, personal Web pages, shopping, message boards, chat rooms and news stories.

The majority — like the French court itself — seems to credit two of the three experts who estimated as many as 90% of France-based users of Yahoo’s auction site could be identified and screened. The methodology underlying this estimate, however, further illustrates the uncertainty of predicting Internet identification and screening, compounded by the vague and overbroad mandate of the court orders. Assuming that “70% of the IP addresses assigned to French surfers can be matched with certainty to a service provider located in France, and can be filtered,” all three experts agreed that “no filtering method is capablé of identifying all French surfers or surfers connecting from French territo.ry.” 10 To reach 90%, two experts relied on a voluntary “sworn declaration of nationality” by a French surfer that “could be made when a first connection is made to a disputed site, in this case the Yahoo auctions site .... ” (Emphasis added.) 11 They suggested asking for the declaration of nationality at “the home page of the auctions site” or “in the context of a search for Nazi objects if the word ‘Nazi’ is included in the user’s request....” In short, the experts’ 90% figure depends on the ability to link users to a specific Yahoo! site and to specific content on that site.

The third expert, Vinton Cerf, a 1997 recipient of the United States National Medal of Technology for co-designing the architecture of the Internet, 12 disavowed relying on users’ self-identification at all, concluding that “it does not appear to be *1247 very feasible to rely on discovering the geographic locations of users for purposes of imposing filtering of the kind described in the [French] Court Order.”

Given the orders’ broad language, none of the experts could devise a system for screening out France-based users that went beyond the auction site. Therefore, even if were true that Yahoo! can identify up to 70% of all of its France-based users, irrespective of the site or service they are accessing, the evidence is clear that geo-, graphical identification alone would not enable Yahoo! to prohibit such users from accessing 100% of the content proscribed by the French orders — indeed, Yahoo! could not even come close on that side of the compliance equation.

There are other serious questions about the experts’ report that should be part of an evidentiary hearing in the district court. For example, the 70% IP-address screening figure was derived in part from information provided by a French Internet association regarding how many of its access providers can identify whether their users are located in France. Such anecdotal data do not demonstrate conclusively that Yahoo! itself has the capability to identify the location of its users.

Indeed, the method the experts proposed for Yahoo! to identify users is imprecise. The experts noted that for a number of reasons the “real world” location of a user may not be readily identifiable. For instance, a French citizen who uses AOL for Internet service may be shown as having an IP address from Virginia, where AOL’s network is located. In other instances, users may choose to mask the geographical origin of their Internet address.

Thus we cannot assume, as does the majority, that this case is about Yahoo! restricting access only by French users, 70-90% of whom are readily identifiable regardless of what content they may seek out on. The validity of these percentage assumptions not only drives the majority’s definition of whose access is restricted, but also its apparent willingness to assume that even if Yahoo! can identify only 70% of the prohibited universe of users, that would be good enough. If technical feasibility is to be the lynchpin on which Ya-hooFs day in federal court depends, then let the parties return to the district court for proper factfinding. Instead, the majority preempts the district court’s fact-finding function, interpreting the French experts’ report as conclusive evidence in order to deny Yahoo! access to the court altogether.

Lastly, there is the issue of cost of compliance. There can be no dispute that the very nature of the French orders puts Yahoo! to the choice of incurring the costs to develop and implement mechanisms to filter .out individual users based on location or removing content from its service altogether. This type of immediate financial burden clearly suffices to make a case ripe for adjudication, even if we accept the majority’s proposition that the threat of enforcement is remote. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 197-98 , 103 S.Ct. 1713 , 75 L.Ed.2d 752 (1983) (holding ripe for review a preemption challenge to a regulation imposing a moratorium on new nuclear plants because petitioners would face substantial financial hardship if they built plants while hoping the law would be struck down); City of Auburn v. Qwest Corp., 260 F.3d 1160, 1173 (9th Cir.2001) (noting that finding case unripe would require party to comply with “costly and cumbersome” franchise requirements). 13

*1248 2. The enforceability of foreign penal judgments

Recognizing that the risk of a large monetary penalty must inevitably weigh heavily in YahooPs assessment of its options, the majority tries to neutralize the risk — creating a protective shield by invoking the doctrine that United States courts will not enforce the penal judgments of other countries. It thus assures Yahoo! that “even if the French court were to impose a monetary penalty against Yahoo!, it is exceedingly unlikely that any court in California — or indeed elsewhere in the United States — would enforce it” because it is a penal judgment. (Op. at 1218.)

It is true as Justice Marshall observed that “[t]he courts of no country execute the penal laws of another,” The Antelope, 23 U.S. (10 Wheat.) 66, 123 , 6 L.Ed. 268 (1825). But that begs the question whether the French injunction itself or the accruing fines are truly penal. Although we respect the majority’s scholarship, this issue has not been the focus of the parties’ briefs or arguments, and thus we cannot share the majority’s level of confidence that its dictum is sufficiently accurate — or binding — that we should remove the risk of a substantial, retroactive monetary penalty from the First Amendment or ripeness analysis. As with the French defendants’ assurances that they consider Yahoo! currently in substantial compliance, absent a binding court order actually freeing Yahoo! from the enforcement of the French orders, Yahoo! remains at serious risk if it fails to conform its web content to the dictates of those orders.

“The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual....” Huntington v. Attrill, 146 U.S. 657, 668 , 13 S.Ct. 224 , 36 L.Ed. 1123 (1892). The Court warned against the “danger of being misled by the different shades of meaning allowed to the word ‘penal’ in our language.” Id. at 666 , 13 S.Ct. 224 . 14 Determining whether a sanction is penal or civil in nature is not always a simple task. Cf. F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128 , 1137-38 (9th Cir.2001) (establishing procedural protections due a party based on whether sanctions were criminal or civil in nature).

Although LICRA and UEJF’s substantive claims against Yahoo! in French court depended in part upon Yahoo!’s violations of French criminal law, 15 the record sug *1249 gests that the French lawsuits were civil rather than criminal and, more importantly, that the French orders primarily sought to redress a wrong to LICRA and UEJF rather than a wrong to the French public. Of course, we agree with the majority that “the label ‘civil’ does not strip a remedy of its penal nature.” (Op. at 1219.) However, that still begs the question whether or not the French accruing fines were penal. On this point, the majority asserts that there is some language in the November 20 order that supports the characterization of the fines as penal and that in any event the fines are potentially much larger than the nominal damages awarded to UEJF and therefore the “award of one Franc [to UEJF] cannot render the orders primarily remedial rather than punitive in nature.” (Op. at 1220.) The majority cites no authority for the novel arithmetic balancing test it proposes to distinguish penal from non-penal orders, and although we admit there is some language in the orders that supports holding the French orders punitive, there is also significant language that supports the conclusion that the orders sought to redress a wrong done to LICRA and UEJF. The proper test for determining whether the French orders are penal is a purposive one, see Huntington, 146 U.S. at 668 , 13 S.Ct. 224 , and based on the record before us, we do not share the majority’s certainty that the orders are undoubtedly penal in nature.

French law gives standing to public interest, non-governmental organizations dedicated to defending the interests of members of certain victimized groups, in-eluding victims of the Holocaust (de portes), to initiaté enumerated types of civil actions (but not criminal prosecutions) on behalf of such victims. See, e.g., C. Pr. Pen. arts. 2-4 & 2-5; Law of July 29, 1881 (Law on Freedom of the Press) (2004), art. 48-2. Yahool’s challenge to UEJF’s standing under Article 48-2 of the French Law on Freedom of the Press and the French court’s subsequent finding that LI-CRA and UEJF “are dedicated to combating all forms of promotion of Nazism in France” suggest that the French trial was a civil proceeding under one of the specialized French standing statutes. This conclusion is further supported by the French court’s reliance on Article 809 of the New Code of Civil Procedure for its authority to issue orders.

Furthermore, the award of damages to UEJF and other relief “by way of restitution” strongly suggests that the French court orders were predominantly civil and remedial rather than penal. 16 The court based its award of damages and other restitution in its May 22 decision on a finding that the exhibition for sale of Nazi objects “has caused damage to be suffered by LICRA and UEJF.” The French court reiterated this finding ,of direct harm in its November 20 decision: “this display [of Nazi objects] clearly causes damage in France to the plaintiff associations who are justified in demanding the cessation and reparation thereof.” In this context, the additional relief afforded to the French plaintiffs — an injunction ordering Yahoo! to cease its harmful activity in France'— appears to be merely an additional remedy in a civil suit.

*1250 As with the French injunction, the accruing fines are similarly more likely civil than penal in nature. The most natural reading of the French court’s rationale for imposing the accruing fines is that such fines were meant to coerce Yahoo! into compliance with the substance of the French injunction. Rather than assessing the fines retroactively as a court would do when redressing the public wrong Yahoo! had allegedly already committed, the French court made the fines entirely conditional on Yahoo!’s future behavior beginning three months after the date of the second French order.

The U.S. analogue for such a regime of per diem fines is civil contempt. See Sari Louis Feraud Int’l v. Viewfinder Inc., 2005 WL 2420525, at *1, *3 , 2005 U.S. Dist. LEXIS 22242, at *2, *7 (S.D.N.Y. 2005) (characterizing a French court’s judgments and a “fine (‘astreinte ’) of 50,-000 francs per day for each day that Viewfinder failed to comply with each judgment” as “an injunction backed by coercive penalties analogous to a civil contempt fine under American law”). “In contrast [to criminal contempt], civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable ' through obedience.” Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827 , 114 S.Ct. 2552 , 129 L.Ed.2d 642 (1994). See also 17 C.J.S. Contempt § 64 (2005) (“[C]ontempt proceedings brought to vindicate the dignity and authority of the court may be characterized as criminal in nature, whereas those brought to preserve and enforce the rights of private parties are remedial and civil in character.”). Courts have the power to order either imprisonment or the payment of fines when holding a party in civil contempt: “A close analogy to coercive imprisonment is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court order. Like civil imprisonment, such fines exert a constant coercive pressure.” Bagwell, 512 U.S. at 829 , 114 S.Ct. 2552 . See also People v. Gonzalez, 12 Cal.4th 804 , 50 Cal.Rptr.2d 74 , 910 P.2d 1366, 1373 (1996). 17 •

Yahoo! was afforded a three-month safe harbor to allow it to implement the French court’s orders, and only then would any fines be assessed. As with a U.S. civil contempt order, the fines were entirely “avoidable through obedience.” Because the French coercive fines’ aim is enforcement of an underlying injunction that is civil (preventing the continuation of harm the French court found LICRA and UEJF had already suffered) rather than penal (benefiting French public justice or vindi *1251 eating the French court’s dignity and authority), the California rule of comity announced in In re Stephanie M. might well apply, were it not for the orders’ substantive unconstitutionality. 18 See 27 Cal.Rptr.2d 595 , 867 P.2d at 716 .

For these reasons, unlike the majority we cannot take the monetary penalty out of the ripeness analysis and assume that Yahoo! is not harmed by the very threat of the French orders’ possible enforcement. Once again, at the least this is another issue that could and should be remanded to the district court for appropriate briefing and factfinding.

3. A new, higher burden for proving chilling effect

Finally, the majority dismisses the chilling effect of the orders by placing the burden on Yahoo! to identify other speech it wants to engage in but which is foreclosed by the French orders. What more should Yahoo! have to specify about the exact manner in which the objectionable content would appear on its site? Millions of postings and other material flow through Yahoo!’s networks each day. 19 Yahoo! cannot possibly predict when and how specific content prohibited by the French orders will make its way onto its service. For example, a user could decide at any time to post a message or a link to a website containing impermissible content. Because it acts as a platform for other speakers, Yahoo! cannot, as the majority demands, identify the specific speech it wishes to engage in that is prohibited by the injunction.

Nor should it have to. To place such a requirement on an Internet provider — essentially forcing it to speculate as to the particular speech activity its millions of users “might” engage in as senders or recipients — is to afford it no First Amendment protection at all. As the Supreme Court has recognized, “ ‘[t]he Internet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’ ” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 566 , 122 S.Ct. 1700 , 152 L.Ed.2d 771 (2002) (quoting 47 U.S.C. § 230 (a)(3) (1994 ed., Supp. V)); see Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir.2003) (emphasizing that Congress, in insulating Internet service providers from liability for certain content published on their sites, recognized the importance of protecting the “unfettered and unregulated development of free speech on the Internet”). 20

*1252 The majority would impose on Yahoo! far greater burdens and ■ litigation risks than those alleging First Amendment violations by domestic parties would have to bear. Yahoo! is expected to try to persuade the French court to narrow or eliminate the very injunction Yahoo! has unsuccessfully fought against in France from the beginning. Unconstrained by our First Amendment, the French court might well táke the opportunity to sanction Yahoo! for noncompliance — and do nothing to alleviate the sweeping restraint on the content of the website. If the defendants want to narrow the injunction such that it might warrant comity, that burden should fall on them, not Yahoo!.

But even if Yahoo! went to the French court and obtained a ruling that its current auction site policy and Internet services content comply with the orders, that would not resolve YahooFs First Amendment problem unless the sweeping injunction itself were permanently withdrawn or narrowed. All Yahoo! would obtain would be clearance for its current operations; it would remain exposed to the risk of violating the orders and incurring penalties should it deviate from those current practices or should the defendants decide that YahooFs content has become objectionable. The very nature of YahooFs business is inherently mutable — that is the essence of the Internet, because of the sheer number and constantly changing identity of its users and of the content those users may seek or themselves post on. Only a United States court can provide Yahoo! with a legal resolution of its claim that the injunctive order, as written, cannot be enforced in the United States without infringing the company’s First Amendment rights, thereby relieving it of the coercive threat hanging over its website and the operation of its business. By denying adjudication, the majority abdicates our proper role in protecting YahooFs constitutional rights.

In so doing, it leaves in place a foreign country’s vague and overbroad judgment mandating a U.S. company to bar access to prohibited content by Internet users from that country. This astonishing result is itself the strongest argument for finding YahooFs claims ripe for adjudication. Are we to assume that U.S.-based Internet service providers are now the policing agencies for whatever content another country wants to keep from those within its territorial borders — such as, for example, controversial views on democracy, religion or the status of women? If the majority’s application of the First Amendment in the global Internet context in this case is to become the standard — whether as a matter of constitutional law or comity — then it should be adopted (or not) after full consideration of the constitutional merits, not as a justification for avoiding the issue altogether as not ripe for adjudication.

III. Conclusion

Without doubt, the hateful speech the defendants in this case seek to suppress is to be condemned. But censoring speech we find repugnant does not comport with our cherished First Amendment. It is well-settled that a hate speech code which “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses” is “facially unconstitutional.” R.A. V, 505 U.S. at 381, 112 S.Ct. 2538 . Under the majority’s reasoning, a party targeted for enforcement of a foreign judgment restricting its speech in the United States will have no recourse but to *1253 appeal to the foreign court, which does not recognize the First Amendment, to try to escape the strictures of the decree — or to demonstrate compliance, either through voluntary action or by submitting to its terms. Only after enduring the decree’s chilling effects while this process plays out, and then faced with whatever sanction the foreign court may impose for noncompliance, may the doors of the United States District Court be opened.

We should not allow a foreign court order to be used as leverage to quash constitutionally protected speech by denying the United States-based target an adjudication of its constitutional rights in federal court. By invoking the doctrine of prudential ripeness — notwithstanding having found both personal jurisdiction over the two foreign defendants and a constitutional case or controversy — the majority does just that, denying Yahoo! the only forum in which it can free itself of a facially unconstitutional injunction. Moreover, in doing so the majority creates a new and troubling precedent for U.S.-based Internet service providers who may be confronted with foreign court orders that require them to police the content accessible to Internet users from another country. We therefore respectfully dissent from the majority’s ripeness decision.

. Like Judge Tashima, we refer to Judge Fletcher’s opinion as the "majority” or the "majority opinion” because an eight-judge majority of the en banc court joins Part II of the opinion on the issue of personal jurisdiction. As the per curiam and Judge Fletcher's opinions explain, however, Judge Fletcher’s articulated rationale on ripeness in Part III of his opinion represents a three-judge plurality and does not command a majority of the en banc court. Nevertheless, we refer to Judge Fletcher's opinion as the "majority” throughout our dissent for ease of reference.

. As the majority recognizes, any Internet user in France or a French territory — whether or not a French citizen or resident — can gain access to Yahool’s U.S.-based server by typing into her browser or linking through <fr.yahoo.com>. (Op. at 1202.)

. The majority’s citation of Adler v. Bd. of Educ., 342 U.S. 485 , 72 S.Ct. 380 , 96 L.Ed. 517 (1952), as a “noted example” of a debate over ripeness in the context of speech is inapposite. (Op. at 1212.) Adler , a case affirming limits on the speech of teachers in New York public schools during the post-World War II "Red Scare,” not only concerns the constitutionally distinct situation of a state government regulating the speech of its employees (as opposed to a court being asked to enforce a speech-restrictive injunction against a corporation), but also predates important modern free speech precedents establishing the doctrine of facial invalidation. See, e.g., Lakewood, 486 U.S. at 755-56 , 108 S.Ct. 2138 . Furthermore, Justice Frankfurter was the sole dissenter (and the sole Justice) to question the suit's ripeness; Justices Black and Douglas were convinced the suit was ripe and that New York's laws infringed upon public school teachers’ First Amendment rights. See Adler, 342 U.S. at 496-511 , 72 S.Ct. 380 . Because Adler itself would certainly be reasoned, and likely decided, differently today given cases such as Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), sad Pickering v. Bd. of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), which recognized a government employee’s interest in commenting on matters of public concern, Adler’s approach to ripeness is hardly illuminating even within the narrow confines of government employee speech.

. As the majority correctly notes, it is California's public policy (rather than U.S. public policy) that is relevant to a comity analysis in a federal diversity case. (Op. at 1212.) However, although Yahoo! focused its energies on alleging violations of the federal First Amendment rather than violations of the analogous provision of the California Constitution, see art. I, § 2(a), it is certainly not California's public policy to countenance violations of the United States Constitution. Indeed, the California Supreme Court has held California’s free speech clause to be more expansive than the First Amendment. See Golden Gateway Ctr. v. Golden Gateway Tenants Ass’n, 26 Cal.4th 1013 , 111 Cal.Rptr.2d 336 , 29 P.3d 797, 801 (2001) (“Unlike the United States Constitution, which couches the right to free speech as a limit on congressional power, the California Constitution gives ‘[e]very person' an affirmative right to free speech. Accordingly, we have held that our free speech clause is 'more definitive and inclusive than the First Amendment.' ") (internal citations omitted). See also Sarl Louis Feraud Int’l v. Viewfinder Inc., 2005 WL 2420525, *3 , 2005 U.S. Dist. LEXIS 22242, at *19 (S.D.N.Y.2005) (“American courts have recognized that foreign judgments that run afoul of First Amendment values are inconsistent with our notions of what is fair and just, and conflict with the strong public policy of our State [New York].”) (emphasis in original).

. The French defendants initially objected to a far broader array of content than the limited category of items Yahoo! now excludes under its revised auction site policy. UEJF's plea for relief asked the French court to mandate that Yahoo! remove from all browser directories the index heading entitled "negationists” and any link “bringing together, equating or presenting directly or indirectly as equivalent sites categorized under the heading 'Holocaust’ and those indexed as negationist.”

. YahooPs circumstances are readily distinguishable from those found not ripe in Socialist Labor Party v. Gilligan, 406 U.S. 583 , 92 S.Ct. 1716 , 32 L.Ed.2d 317 (1972). There, the principal First Amendment claims the party leveled against Ohio’s election code were mooted by legislative amendments, leaving only a subsidiary challenge to a loyalty oath. The Court found this claim "singularly sparse in its factual allegations," with no suggestion that the Party had ever refused or would refuse in the future to sign the oath, or that it had suffered or would suffer any injury from the existence of the oath requirement. Id. at 586 , 92 S.Ct. 1716 .

Similarly, in American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (9th Cir.1992), members of the Popular Front for the Liberation of Palestine (PFLP) contended that anti-Communist provisions of the McCarran-Walter Act unconstitutionally put them at risk of deportation for engaging in protected First Amendment activities without the opportunity for a fair and impartial hearing before the INS. We held that the plaintiffs *1243 were sufficiently at risk of government prosecution to give them standing; but we found their claims not ripe because there was “a sketchy record ... with many unknown facts,” such as whether the plaintiffs were actually members of the PFLP or what acts the government alleged they had committed, and we emphasized that the INS had not yet interpreted or applied the challenged provisions. Id. at 510-11 .

In marked contrast to these cases, here the French injunction remains extant and as broadly worded as ever; the defendants have refused to stipulate to YahooPs compliance; and the district court has found actual noncompliance with specific terms as well as an overall risk of noncompliance with fatally undefined terms — thereby subjecting Yahoo! to the risk of substantial monetary fines 'and the chilling effect of the vague and overbroad injunction. Additionally, there is no court or agency — other than this federal court — that can address YahooPs United States constitutional claim.

. It is telling that even the Internet experts relied upon by the French court were unable to recommend a “suitable and effective technical solution” for Yahoo! to screen out France-based users from any of its sites or services, other than the auction site, that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes • because "[n]o grievance against any ... Yahoo! sites or services[other than the auction site] is formulated with sufficient precision.”

. According to the majority, "the French court’s interim orders do not by their terms require Yahoo! to restrict access by Internet users in the United States.” (Op. at 1221.) This is not Yahoo!'s position. The company has asserted that complying with the French orders would compel it to remove prohibited material from its United States-based Internet services and reengineer its servers, also located in the United States, to identify both France-based users and prohibited material that may be posted in the future; therefore, it may not be possible to comply with the French orders without rendering certain content inaccessible to all users, including those in the United States and not just those in France. Nor does Yahoo! appear to be interested in asserting its constitutional rights solely for the sake of violating French law. To comply with the orders as they affect the company’s French services, Yahoo! now removes any posted material it becomes aware of on its <fr.yahoo.com> site that would violate French law.

. Even as to screening content on the auction site, the experts acknowledged that it was not possible for Yahoo! to "exclude a priori items which have not been described by their owner as being of Nazi origin or belonging to the Nazi era.” How then would Yahoo! keep the prohibited material from being accessed? The report suggested that a more "radical solution” might be warranted, essentially prohibiting any search containing the word "Nazi” by an identified French user. How such Nazi paraphernalia which has not been described by its owners with the label "Nazi” could be screened remains a mystery.

. Significantly, the experts were at pains to caution that even the 70% figure based on IP addresses has a short shelf life: "[t]he consultants stress that there is no evidence to suggest that the same will apply in the future. Encapsulation is becoming more widespread, service and access providers are becoming more international, and surfers are increasingly intent on protecting their rights to privacy-”

. Notably, the French orders compel Yahoo! to prohibit access by any users in French territoiy, not just French citizens. Thus a declaration of "nationality” does not seem adequate in any event.

. See Technology Administration, Department of Commerce, The National Medal of Technology Recipients, at http://www.technology.gov/Medal/Recipients.htm.

. The mere possibility of future fines can have very real financial consequences for a publicly held corporation like Yahoo!. To the *1248 extent it is material to a corporation’s financial condition, such companies are required to disclose contingent liabilities in Form 10-Q and 10-K statements filed with the Securities and Exchange Commission. See Securities Exchange Act of 1934, §§ 10(b), 15(d), 15 U.S.C. §§ 78j(b), 78o(d); 17 C.F.R. §§ 240 .10b-5, 240.12b-20; see also Financial Accounting Standards Board Statement of Financial Standards No. 5, available at http:// www.fasb.org/pdfifas5.pdf. Such filings may adversely affect the credit ratings and hence the valuation of shares of such companies. In another context, we have held that financial impacts on a business resulting from legal uncertainty support a finding that a case is ripe. See Chang v. United States, 327 F.3d 911 , 922 (9th Cir.2003).

. The Supreme Court’s warning in Huntington has even greater salience when we are attempting to determine "the different shades of meaning allowed to the word 'penal' " in a language other than our own. (Op. at 1219.)

. LICRA and UEJF's claims are based in part on a French law that criminalizes the public wearing or display of the uniforms, insignias and emblems of any organization declared criminal by the post-World War II International (Nuremberg) Military Tribunal (e.g., the Nazi Party). See C. Pén. R645-1. One of the most serious penalties for violation of (his provision of the penal code is a fine. See id. Their claims also appear to rely on the French Law of July 29, 1881 (Law on Freedom of the Press) (2004), which, among other things, criminalizes Holocaust denial, see art, 24 bis, and the incitement of discrimi *1249 nation, hatred or violence on the basis of belonging to a particular ethnic, national, racial group, see art. 24, ¶ 6. Both crimes carry a penalty of one year imprisonment or a fine of 45,000 Euros or both. See id.

. The French court ordered payment by Yahoo! (jointly and severally with Yahoo! France) of provisional damages of 1 Franc to UEJF. As a means of effecting restitution for the harm suffered, the French court also ordered Yahoo! to pay for the publication of one of the French decisions in "five daily or weekly publications at the choice of [UEJF].”

. Admittedly, the characterization of the fines as coercive yet non-penal may depend on whether Yahoo! "is afforded an opportunity to purge” its liability to pay the fines. Bagwell, 512 U.S. at 829 , 114 S.Ct. 2552 . Alternatively, the fines may be compensatory and therefore non-penal if they are payable to LICRA and UEJF "for losses sustained” rather than to the French government. See id. The majority claims that the "penalties are payable to the government and not designed to compensate the French student groups for losses suffered.” (Op. at 1220.) However, nothing in the record indicates to whom the fines are payable. Furthermore, the majority fails to acknowledge the possibility, indeed the probability, that the fines were not designed to punish Yahoo! for its past behavior, but rather to prevent future harm to LICRA and UEJF. Coercive per diem fines need not be "designed to compensate [plaintiffs] for losses suffered” (Op. at 1220), in order to be non-penal, so long as their purpose is to "preserve and enforce the rights of private parties,” 17 C.J.S. Contempt § 64 (2005). In any event, such uncertainty concerning the nature of the fines merely reinforces the conclusion that further factfinding by the district court is necessary before we can jump to the conclusion that the French fines are penal and unenforceable.

.Even if the exact accruing fines as calculated by the French orders were not directly enforceable under California law, Yahoo! could face the possibility that a California court would enforce a foreign injunction with its own state contempt proceedings under comity doctrine (again, assuming no substantive constitutional defect). Cf. Biewend v. Biewend, 17 Cal.2d 108 , 109 P.2d 701, 704 (1941) ("Upon the basis of comity, however, as distinguished from the requirements of full faith and credit, the California courts have in numerous cases ordered that a foreign decree for future payments of alimony be established as the decree of the California court with the same force and effect as if it had been entered in this state, including punishment for contempt if the defendant fails to comply.”), overruled on other grounds by Worthley v. Worthley, 44 Cal.2d 465 , 283 P.2d 19, 22-23 (1955).

. The record indicates that as of July 2000, Yahoo! and its subsidiaries had 146 million users worldwide. Each month Yahoo! users added or edited more than 15 million Geocities web pages and posted more than 6 million classified advertisements. There were more than 2.5 million active auction items viewable on Yahoo! each day and 200,000 Yahoo! clubs were accessed each day by members who posted messages, uploaded photos or added Internet links.

. Batzel analyzed the rationale for the provisions protecting Internet providers under 47 U.S.C. § 230 , which Yahoo! invoked before the district court as a statutory basis for pre *1252 venting enforcement of the French court orders here.