[1] See Robert D. Lamb, Industry Urges Caution in Talks on Jurisdictional Treaty, Nat’l J. Tech. Daily, June 5, 2001, at 1 (commenting on the next meeting of the Hague Conference to further negotiate the terms of the Draft Convention).

[2] See Hague Conference on Private International Law Member States, at  http://www.hcch.net/e/members/members.html (last updated June 13, 2001) (listing the 51 Hague Conference Member States: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Hashemite Kingdom of Jordan, Republic of Korea, Latvia, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela).

[3] See Statute of the Hague Conference on Private International Law, Art. I, effective July 15, 1955, at http://www.hcch.net/e/conventions/text01e.html [hereinafter Statute of the Hague Conference] (describing the Conference as a volunteer group of nations with a purpose of working “for the progressive unification of the rules of private international law”).

[4] See Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Hague Conference on Private International Law, adopted by the Special Commission Oct. 30, 1999 (last visited June 17, 2001)at  http://www.hcch.net/e/conventions/draft36e.html [hereinafter Draft Convention] (providing the latest draft of the Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters).

[5] See Michael Traynor, An Introductory Framework for Analyzing the Proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters: U.S. and European Perspectives, Ann. Surv. Int’l & Comp. L., Spring 2000, at 1, 5 [hereinafter An Introductory Framework] (outlining the major issues addresses by the Draft Convention and the major responses to each issue); Brenda Sandburg, Vague Hague Treaty Causes a Stir, The Recorder, Feb. 7, 2001, at 1 [hereinafter Vague Hague Treaty] (discussing the implications of the Draft Convention on electronic commerce, intellectual property, and consumer concerns).

See Draft Convention, supra note 4 , at art. 1 (providing that the convention does apply to civil and commercial matters, though not to revenue, customs or administrative matters, and providing that the convention does not apply to:

    a) the status and legal capacity of natural persons;
    b) maintenance obligations;
    c) matrimonial property regimes and other rights and obligations arising out of marriage or similar relationships;
    d) wills and succession;
    e) insolvency, composition or analogous proceedings;
    f) social security;
    g) arbitration and proceedings related thereto; [or]
    h) admiralty or maritime matters.)

Id.  The Draft Convention creates international procedural rules addressing matters such as choice of courts, joinder of parties and claims, lis pendens, enforcement procedure, damages, severability and settlement.  Evaluating the probable success of these rules in the realm of private international litigation is beyond the scope of this Comment.

[7] See Vague Hague Treaty, supra note 5 , at 2 (remarking that in 1992 the United States requested that the Hague Conference on Private International Law develop a treaty addressing enforcement of foreign judgments because American courts usually recognized decisions by foreign courts, but foreign courts usually did not recognize American courts’ decisions); see Impediments to Digital Trade: Hearing Before the House Subcomm. On Commerce, Trade and Consumer Prot. Comm. On Energy and Commerce, 107th Cong. 2 (2001) (statement of Barbara Wellbery, Partner, Morrison and Foerester LLP) [hereinafter Impediments to Digital Trade] (commenting that the United States’ request was the primary reason for creating the Draft Convention).

[8] See Dan Gillmor, Little Known Treaty Could Threaten Rights of All, San Jose Mercury News, May 18, 2001, at 1 (arguing that “[c]yberspace has blurred all borders.  Physical presence is harder to define when anyone, almost anywhere, can view Internet content and do business electronically.”)

[9] See Draft Convention, supra note 4 , at ch. III art. 28 (articulating the public policy exception to the Draft Convention’s international rules).

[10] See Joachim Zekoll, Symposium: “Could a Treaty Trump Supreme Court Jurisdictional Doctrine?”: The Role and Status of American Law in the Hague Judgments Convention Project, 61 Alb. L. Rev. 1283, 1302 (1998) [hereinafter Could a Treaty Trump] (suggesting that ratification of the Draft Convention will depend on inclusion of a public policy exception to be used when legal decisions are contrary to Member States’ public policies).

[11] See Karen E. Minehan, The Public Policy Exception to the Enforcement of Foreign Judgments: Necessary or Nemesis?, 18 Loy. L.A. Int’l & Comp. L. J. 795, 796, 799-808 (1996) [hereinafter The Public Policy Exception] (acknowledging concerns that Member States will abuse the public policy exception and undermine the Draft Convention’s standard rules of procedure).

[12] See infra notes 54 -62 and accompanying text (establishing the public policy’s undermining of the Draft Convention’s standardization goal).

[13] See infra notes 83 -107 and accompanying text (discussing American and European public policies regarding freedom of speech).

[14] See infra notes 20 -62 and accompanying text (examining the Draft Convention’s procedural rules and public policy exception).

[15] See infra notes 83 -119 and accompanying text (discussing the Planned Parenthood v. American Coalition and Union of Jewish Students v. Yahoo! cases).

[16] 244 F.3d 1007 (9th Cir. 2000).

[17] Union des Etudiants Juifs de France and Ligue Contre la Racisme et L’Antisemitisme v. Yahoo! Inc. and Yahoo! France, Tribunaux de grande instance [T.G.I.] [county court of original jurisdiction], Parise, Nov. 20, 2000, at http://www.cdt.org/speech/international/001120yahoofrance.pdf.

[18] See infra notes 120 -137 and accompanying text (offering recommendations for improving the Draft Convention’s public policy exception).

[19] See infra notes 126 -137 and accompanying text (recommending that the Hague Conference better define public policy and create an international body to settle public policy disputes).

[20] See Impediments to Digital Trade, supra note 7 , at 5 (emphasizing the need for continuing American involvement in the creation of the Draft Convention, even if the country does not become a signatory, because application of international procedural rules by nations that do implement the Draft Convention will greatly impact American businesses with assets abroad); Tied up in Knots, Economist, June 9, 2001, at 2 [hereinafter Tied up in Knots] (stressing that the Draft Convention may stifle Internet commerce when service and content providers choose to block whole countries’ access to information, rather than make themselves subject to foreign speech laws).

[21] See Draft Convention, supra note 4 , at ch. I art. 2 (declaring that the Draft Convention’s Chapter II rules of jurisdiction apply in all the courts of Member States and its Chapter III rules of foreign judgment enforcement apply in all Member States).  But see Draft Convention, supra note 4 , at ch. I art. 4 (confirming that no part of the Draft Convention disturbs the privileges and immunities of Member States, entities of Member States, or international organizations).

[22] See Draft Convention, supra note 4 , at ch. II (providing rules for establishing jurisdiction over civil and commercial international disputes).

[23] See id. at ch. III (establishing rules for enforcing and recognizing foreign judgments regarding international disputes).

[24] See id. at ch. III art. 28(1)(f) (creating a public policy exception to the Draft Convention’s international procedural rules).

[25] See An Introductory Framework, supra note 5 , at 3 (highlighting the difference between the Draft Convention and the American approaches to establishment of jurisdiction in a particular forum).  American common law courts establish jurisdiction when a defendant maintains minimum contacts with a forum and when a due process inquiry determines that exercising jurisdiction over the defendant would be fair and just. Id.  European civil law courts establish jurisdiction whenever circumstances meet a set of general rules. Id.  International Shoe Co. v. Washington, 326 U.S. 310 (1945).

[26] See Draft Convention, supra note 4 , at ch. II arts. 3, 4, & 18 (providing that: (1) defendants must submit themselves to the courts of any Member State where they habitually reside; (2) all parties to a dispute must submit themselves to the courts of any Member State to which they agree to grant jurisdiction; and (3) the jurisdiction of any Member State may not be based only on: 

(a) the presence or the seizure in that State of property belonging to the defendant, except where the dispute is directly related to that property; (b) the nationality of the plaintiff; (c) the nationality of the defendant; (d) the domicile, habitual or temporary residence, or presence of the plaintiff in that State; (e) the carrying on of commercial or other activities by the defendant in that State, except where the dispute is directly related to those activities; (f) the service of a write upon the defendant in that State; (g) the unilateral designation of the forum by the plaintiff; (h) proceedings in that State for declaration of enforceability or registration or for the enforcement of a judgment, except where the dispute is directly related to such proceedings; (i) the temporary residence or presence of the defendant in that State; (j) the signing in that State of the contract from which the dispute arises.

Id.

[27] See id. at ch. II art. 3; An Introductory Framework, supra note 5 , at 7 (asserting that the rules approach to jurisdiction follows the European examples of the Brussels and Lugano Conventions, rather than the American example of minimum contacts, fair play, and substantial justice).  The Brussels and Lugano Conventions establish rules of jurisdiction for the European Court of Justice based on factual determinations of domicile. See id. at 4.  See also Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1972 O.J. (L 299) 32, reprinted in 8 I.L.M. 229 (1969), as amended by 1990 O.J. (L 189) 1, reprinted as amended in 29 I.L.M. 1413 (1990); Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988 O.J. (L 319) 9, reprinted in 28 I.L.M. 620 (1989). 

[28] See Draft Convention, supra note 4 , at ch. II. arts. 6-8 (asserting that consumers may bring commercial contract suits in the courts of Member States in which they are habitually resident, and that employees and employers may raise contract disputes only in the courts of Member States in which the employee habitually resides or works).  See also William New, Global Negotiators Try to Break Online Dispute; Barriers, Nat’l J. Tech. Daily, Feb. 26, 2001, at 1-2 (describing the work of consumer groups to retain rules establishing consumers’ rights to sue foreign business in the consumers’ home courts).

[29] See Draft Convention, supra note 4 , at ch. II art. 4 (stating that Draft Convention signatories may agree upon courts in which to try their particular disputes).

[30] See Thomas Vanderbloemen, Assessing the Potential Impact of the Proposed Hague Jurisdiction and Judgments Convention on Human Rights Litigation in the United States, 50 Duke L.J. 917, 932-34 (2000) [hereinafter Assessing the Potential] (describing the simple, pure double, and mixed double formats for international conventions).  A simple convention lists, for example, only acceptable bases of jurisdiction. Id.  The pure double format lists both acceptable and unacceptable bases of jurisdiction. Id.  A mixed double convention lists acceptable, unacceptable, and discretionary bases of jurisdiction. Id.

[31] See Draft Convention, supra note 4 , at ch. II art. 18(2)(a) (barring the establishment of jurisdiction over a matter on the seizure of unrelated property).

[32] See id. at ch. II art. 18(2)(b) & (c) (prohibiting the establishment of jurisdiction over a matter on the nationalities of parties involved).

[33] See id. at ch. II art. 18(2)(d) & (i) (banning the establishment of jurisdiction over a matter on the presence, no matter how long, of a plaintiff or a defendant in a particular Member State).

[34] See id. at ch. II art. 18(2)(e) (preventing the establishment of jurisdiction over a matter on the commission of any activity in a forum that is unrelated to the dispute being litigated).

[35] See id. at ch. II art. 18(2)(f) & (g) (proscribing the establishment of jurisdiction over a matter on the issuance of a writ or unilateral decision by a defendant or a plaintiff).

[36] See Draft Convention, supra note 4 , at ch. II art. 18(2)(h) (barring the establishment of jurisdiction over a matter on the existence of an enforcement proceeding in a forum).

[37] See id. at ch. II art. 18(j) (prohibiting the establishment of jurisdiction over a matter on the signing of a contract in the Member State where a dispute occurs).

[38] See supra notes 27 -29 and accompanying text (listing the acceptable bases for establishing jurisdiction over disputes between parties of Member States).

[39] See An Introductory Framework, supra note 5 , at 8 (illustrating the current debate regarding addition of a discretional list of jurisdictional bases to the Convention that embraces circumstances such as frequent business contacts with a forum and co-defendant status in a suit where the court has established jurisdiction over other defendants).

[40] See Assessing the Potential, supra note 30 , at 933 (reasoning that a convention in the mixed double format, one that includes a gray list of discretional bases of jurisdiction, enjoys more flexibility because signatories cannot violate the convention by either exercising or failing to exercise jurisdiction on any of the gray list bases).

[41] See Draft Convention, supra note 4 at ch. III arts. 25, 26, 28, 29, 30 (outlining the procedure through which a party may seek enforcement of a foreign judgment).

[42] See An Introductory Framework, supra note 5 , at 8 (explaining that only judgments that lacked proper jurisdiction, were obtained by fraud or otherwise conflicted with procedural or substantive standards in their original courts are unenforceable in other courts).

[43] See Draft Convention, supra note 4 , at ch. III art. 29(1) (asserting that a party seeking recognition or enforcement of a foreign judgment must provide: (1) a certified copy of the judgment; (2) the document used to begin the proceeding, if the judgment was rendered by default; (3) documents proving that the judgment is recognized or enforced in its court of origin; and (4) any necessary translations).

[44] See id. at ch. III art. 18, 26 (observing that a court may refuse to recognize or enforce a judgment that lacks jurisdictional grounds compatible with Chapter II of the Draft Convention).

[45] See id. at ch. III art. 21, 28(1)(a) (stating that a court may refuse to recognize or enforce a judgment when a proceeding involving the same parties and addressing the same issues is pending before another of the Member State’s courts).

[46] See id. at ch. III art. 28(1)(b) (affirming that a court may refuse an otherwise enforceable or recognizable judgment that it finds inconsistent with another judgment of its own or another Member State’s courts).

[47] See id. at ch. III art. 28(1)(c) (providing that a court may refuse to recognize or enforce a judgment that clashes with the values articulated by its procedural rules).  The Draft Convention’s language suggests that a court may refuse to enforce a judgment that conflicts with the fundamental right to be heard embodied in the court’s procedural rules. Id.

[48] See Draft Convention, supra note 4 , at ch. III art. 28(1)(d) (maintaining that a court may refuse to enforce or recognize a judgment rendered on a proceeding in which the defendant was not allowed sufficient time to prepare a defense).

[49] See id. at ch. III art. 28(1)(e) (claiming that a court may refuse to recognize or enforce a judgment obtained by fraudulent application of procedural rules).

[50] See id. at ch. III art. 33 (addressing foreign enforcement of damages awards).

[51] See id. at ch. III art. 33(1) & (2) (confirming the enforcement of judgments by foreign courts only to the degree that such judgments might have been rendered by those same courts, and allowing foreign courts discretion to reduce damage awards that they deem excessive).

[52] See Vague Hague Treaty, supra note 5 , at 3 (arguing that American plaintiffs seeking enforcement of judgments in foreign courts will not receive all of the damages to which they are entitled, according to American courts, because foreign countries will apply their higher thresholds for damage awards).  The critics fear that American plaintiffs will not receive the full actual, economic, and punitive damages originally awarded to them by American courts, because European courts do not normally award such damages to their own countries’ plaintiffs. Id.

[53] See id. at 3 (noting that in European countries, governments, rather than defendants, often pay plaintiffs’ medical expenses).

[54] See Could a Treaty Trump, supra note 10 , at 1300 (asserting that American critics continue to debate the public policy exception because they believe that foreign countries too frequently cite public policy concerns in denying enforcement or recognition of American judgments).  But see The Public Policy Exception, supra note 11 , at 815 (emphasizing that the European Court of Justice invokes the public policy exception to rules of the Brussels Convention very infrequently).

[55] See Draft Convention, supra note 4 , at ch. III art. 28(1) (listing the six separate grounds for refusal of judgment recognition or enforcement by a foreign court).  See also notes 44 - 49 and accompanying text (describing the first five grounds for refusal of judgment recognition or enforcement).

[56] See id. at ch. III art. 28(1)(f) (establishing the public policy exception to the Draft Convention’s international procedural rules).

[57] See The Public Policy Exception, supra note 11 , at 817 (describing the elucidation of a similar public policy exception to the international Convention on the Recognition and Enforcement of Arbitral Awards by common law courts); New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38.

[58] See An Introductory Framework, supra note 5 , at 10-12 (considering the American Law Institute’s development of American implementing legislation that attempts to define some of the Draft Convention’s ambiguous terms).

[59] See supra note 7 and accompanying text (relating the purpose for developing the Draft Convention).

[60] See An Introductory Framework, supra note 5 , at 9 (suggesting that, given the ambiguity of the public policy exception, Member States may refuse to enforce or recognize foreign judgments not because they are against public policy principles found in a constitution or national legislation, but because they simply conflict with some abstract notion of custom).  The author quotes Justice Cardozo’s explanation that public policy may be like “some deep-rooted traditional of the common weal.” Id. (quoting Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1988)).

[61] See Boris Grondahl, Your Court or Mine?, Industry Standard, June 25, 2001 [hereinafter Your Court or Mine?] (asserting that because individuals can access businesses involved in electronic commerce from anywhere in the world, the Draft Convention also exposes such businesses to lawsuits filed anywhere in the world).  Such exposure will stunt the growth of electronic commerce and foster mistrust in the global online community. Id.   See also Tied up in Knots, supra note 20 , at 2 (citing an authority’s opinion that exposing Internet content providers to the regulations of each of the countries where their content is accessible will prevent the providers from posting anything but the most bland content).

[62] See infra notes 108 -117 and accompanying text (recounting the litigation of an international dispute regarding online access to banned materials).

[63] See Caroline Uyttendaele & Joseph Dumortier, Free Speech on the Information Superhighway: European Perspectives, 16 J. Marshall J. Computer & Info. L. 905, 912 (1998) [hereinafter Free Speech] (suggesting that the United States and European countries adhere to different interpretations of freedom of speech and speech rights).

[64] See id. (explaining that Americans enjoy a right to be free from interference with exercise of their speech rights, while Europeans enjoy a right to have some speech standards enforced in order to foster greater dialog).

[65] See Todd G. Hartman, The Marketplace v. the Ideas: The First Amendment Challenges to Internet Commerce, 12 Harv. J.L. & Tech. 419, 429 (1999) [hereinafter The Marketplace] (observing that the United States Supreme Court decides whether to regulate incidents of speech by balancing the interests in expression against the opposing interests in preventing expression); see Free Speech, supra note 63 , at 923-924 (providing that European courts restrict speech that conflicts with the mores of democratic society, including hate speech).  The United States Supreme Court’s balancing of speech interests is not as contradictory to the goals of the Marketplace Theory as some commentators contend.  In the single instance when anti-expression interests may automatically outweigh interests in expression, when the speech at issue is in the form of pornography, the Supreme Court has not singularly condemned the speech as against the values of society, but has rather returned the decision to the states.

[66] U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . .”).

[67] See The Marketplace, supra note 65 , at 427-31 (discussing the Marketplace of Ideas theory of speech regulation).

[68] See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (declaring “that the ultimate good is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . .”).

[69] See id. (explaining that regulation prevents some of even the strongest ideas from being appreciated).

[70] Id. (noting the capability of the stronger ideas to rise above the weaker ideas when all ideas are expressed).

[71] See The Marketplace, supra note 65 , at 428 (explaining that the Marketplace Theory of free speech compels an aversion to any limitation that would result in a lesser amount of expression).

[72] See Free Speech, supra note 63 , at 912 (contrasting the United States’ negative freedom of speech right, a right to be free from restrictive regulation of communication so that all may speak, with the European positive freedom of speech right, a right to have communication proactively regulated so that all may speak).

[73] See id. (asserting that the United States’ conception of freedom of speech focuses on prohibiting state interference with personal expression while the European conception of freedom of speech centers on prohibiting domination of the avenues of expression by any single entity).

[74] See The Marketplace, supra note 65 , at 430 (detailing national security, child welfare and commerce as the public interests that have historically been able to outweigh speech interests).

[75] See Free Speech, supra note 63 , at 923 (suggesting that freedom of speech in European countries rests on a notion that the exchange of ideas furthers democratic goals and that speech that conforms to societal values should be encouraged); Philip S. Cook, Liberty of Expression, at 5-6 (1990) (maintaining that the value of freedom of speech in France lies in its ability to promote democracy, not in its ability to expose the truth, as Americans would contend).

[76] See Free Speech, supra note 63 , at 917 (describing how European governments, including the Council of Europe, encourage speech that contributes to the debate and cooperative decision making of democracy); Fr. Const. (1958) tit. 16 (Transitional Provisions), arts. 10 & 11 (incorporating into the French Constitution Article II of the 1789 Declaration of the Rights of Man and of the Citizen, which guarantees that no French citizen “may be troubled on account of his opinions or religion, provided that their expression does not infringe public policy as established by [law],” and guarantees that every French “citizen may speak, write, and publish freely, save that he must answer for any abuse of such freedom in cases specified by [law]”).

[77] See Free Speech, supra note 63 , at 919-20 (identifying how the European Union embraced the European Convention for the Protection of Human Rights and Fundamental Freedoms as the premiere legal instrument protecting Europeans’ freedom of speech).  The Convention ensures that Europeans may freely communicate using any media, as long as they adhere to all conditions applicable for preservation of democracy. Id.

[78] See Free Speech, supra note 63 , at 924 (commenting that undemocratic speech such as hate speech is often punished by European countries); Ronald P. Sokol, Freedom of Expression in France:  The Mitterrand-Dr. Gubler Affair, 7 Tul. J. Int’l. & Comp. L. 5, 6 (1999) [hereinafter Freedom of Expression in France] (explaining that French authorities charged a cybercafe owner with copyright infringement when he made available online a book that the government had banned because it accused former French President Francois Mitterand of having hidden his cancer diagnosis from the citizenry).

[79] See Free Speech, supra note 63 , at 923-24 (listing “offen[s]es against public decency, insults to the head of state,  revealing national or military secrets . . . . slanderous or libelous speech [and] . . . hate speech in general . .  .” as examples of regulable European speech).

[80] See id. at 912 (defining a positive speech right as a citizen’s right to be protected from speech to which he or she would not desire to be exposed).  A citizen enjoys a negative speech right when he or she may communicate without government intervention. Id.  But see Freedom of Expression in France, supra note 78, at 6 (observing that French citizens bought some 40,000 copies a banned book concerning former President Mitterand’s bout with cancer while it was available online).  This may indicate the French government’s inability to reliably predict what types of expression the public wants to be protected from through its positive speech right.

[81] See Free Speech, supra note 63 , at 912-13 (asserting that European governments have both a positive and a negative duty in allowing expression that fits with societal values and limiting expression that goes against them); Jean-Marie Guehenno, Legal and Constitutional Protections of Freedom of Speech in France, in Liberty of Expression 65, 66 (Philip S. Cook ed., 1990) [hereinafter Legal and Constitutional Protections] (describing the simultaneous duties of the French government to both protect speech from wrongful regulation by the state and organize the proper protection of speech by the state).

[82] See Free Speech, supra note 63 , at 923 (noting that “when forms of speech strike at the heart of values deeply cherished in a free and democratic society, doctrinal space for regulation opens up.”)

[83] The concept of public policy discussed here is somewhat like the common law concept of precedent.  A country’s legal discourse on a particular right, taking the forms of decisions, dicta, written documents or expressions of public sentiment, progresses to a point when some unifying principle emerges.  This principle, a measure of what values are attached to a particular right, guides lawmakers in preserving the right as understood by the populace. 

[84] See Sionaidh Douglas-Scott, The Hatefulness of Protected Speech:  A Comparison of the American and European Approaches, 7 Wm. & Mary Bill Rts. J. 305, 309, 315 (1999) [hereinafter The Hatefulness of Protected Speech] (explaining that American First Amendment protection extends even to controversial types of speech such as hate speech and pornography, and suggesting that restrictions on traditionally non-protected speech such as pornography are being continuously lightened).

[85] Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 224 F.3d 1007 (9th Cir. 2000); Union des Etudiants Juifs de France, T.G.I., Paris, Nov. 22, 2000, at http://www.cdt.org/speech/international/001120yahoofrance.pdf.

[86] Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 224 F.3d 1007 (9th Cir. 2000).

[87] See Jason Schlosberg, Article: Judgment on “Nuremberg”: An Analysis of Free Speech and Anti-Abortion Threats Made on the Internet, 7 B.U.J. Sci. & Tech. L. 52, 63-65 (2001) [hereinafter Judgment on “Nuremberg”] (observing that, despite its violent context and the anxiety it produced in its readers, the anti-abortion website did not constitute a true threat, a type of regulable expression); see James C. Goodale, Planned Parenthood and ACLU Lose Bid to Silence Media, New York L. J. Apr. 6, 2001, at 5 (stating that, although the website may have scared those people whose names it listed, it made no true threat of violence, and so its content deserved the same First Amendment protection enjoyed by print publications).

[88] See Planned Parenthood, 224 F.3d at 1012-13 (detailing the publication of the posters and online material in a related magazine, Life Advocate, and at several Roe v. Wade decision anniversary and other organizational events); Ashbel S. Green, Judge Won’t Pull Abortion Web Site Off Internet, Oregonian, Feb. 5, 1999 at A1 [hereinafter Judge Won’t Pull] (describing a portion of the website as having the title “Third Trimester Butchers,” and being animated to look as if the blood dripped down the screen; Jules Crittenden, Jury Clamps Down on Anti-Abort Web Site, B. Herald, Feb. 3, 1999 at 1-2 [hereinafter Jury Clamps Down] (detailing that the website listed the names of abortion providers, abortion rights activists, and liberal judges and politicians).

[89] See Planned Parenthood, 224 F.3d at 1012 (describing the unveiling of the first poster at a 1995 Roe v. Wade anniversary event and noting the $5,000 reward offered); Lauren Dodge, Abortion Foes Told to Pay $107 Million, Advocate, Feb. 3, 1999, at 1-A (detailing the collection of information identifying the doctors so that they might be tried in the future as war criminals like some former Nazi party members were in Nuremberg, Germany).

[90] See Planned Parenthood, 224 F.3d at 1012-13 (noting that dossiers were created of doctors, women’s health clinic employees, politicians, judges and other abortion rights supporters); Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 23 F.Supp. 2d 1182, 1186 (D. Or. 1998) (commenting that names, addresses and phone numbers were collected for each of the Dirty Dozen physicians); Jury Clamps Down, supra note 88, at 1 (establishing that the doctors’ license plate numbers and children’s names were also collected); Ashbel S. Green, Anti-Abortion Nuremberg Site Back Online – Owner Vows to put Web Cameras at Women’s Health Clinics, Seattle Times, Feb. 25, 1999, at A11 (confirming the Nuremberg files website’s location, www.christiangallery.com/atrocity, before it was removed by its Internet service provider for violating an appropriate-use policy).

[91] See Ashbel S. Green, Web Site Against Abortion Returns, Oregonian, Feb. 24, 1999, at D1 (naming computer programmer Neal Horsley as the owner of the Nuremberg files website).

[92] See Planned Parenthood, 23 F.Supp. 2d at 1186; Judge Won’t Pull, supra note 88, at A1 (describing Horsley’s drawing of a line through the name of abortion provider Barnett Slepian within hours of his assassination in 1998, and the drawing of lines through the names of other deceased providers).

[93] See Judge Won’t Pull, supra note 88, at A1. (reporting the shading in gray of the names of abortion rights supporters who received injuries in attacks on women’s health clinics).

[94] Planned Parenthood of the Columbia/Willamette, Inc. et al., v. American Coalition of Life Activists et al., 41 F.Supp. 2d 1130, 1155-156 (1999) (enjoining permanently the anti-abortion activists from threatening the pro-choice plaintiffs, publishing or reproducing the posters, and disseminating personal information about the plaintiffs to anyone intending to make threats).

[95] See Planned Parenthood, 244 F.3d at 1007, 1017-19 (vacating the earlier judgment upon concluding that the jury could find the anti-abortion activists liable only if their statements were understood by the abortion providers to express true intentions to assault the providers, and concluding that the jury could not find the activists liable if their activists’ statements were simply understood by the providers to mean that the assaults were more likely).

[96] See Judgment on “Nuremberg”, supra note 87, at 55 (observing that the plaintiff abortion rights supporters asserted that the Nuremberg Files was an anti-abortion activist hit list, pointing to the fact that Doctor Barnett Slepian was crossed off the online list following his murder).

[97] See David Kravets, Court Tosses $109 Million Verdict Against Anti-Abortionists, Chattanooga Times, Mar. 29, 2001 at A4 (noting that doctors whose names appeared on the website began wearing disguises and bulletproof vests, hiring bodyguards, and advising their children to take cover in a bathroom if they heard gunfire at home).

[98] See Planned Parenthood, 224 F.3d at 1019-20 (likening the Planned Parenthood case to NAACP v. Claiborne Hardware Co., 458 U.S. 886, in which a freedom of speech claim was upheld because the speaker’s threats, though uttered in a violent context, were political speech, speech prone to exaggeration).

[99] See Judgment on “Nuremberg”, supra note 87, at 64 (remarking that seven lives had been ended in anti-abortion attacks on abortion rights supporters during the five years prior to the Planned Parenthood decision); Outrage Over Court-Protected Domestic Terrorism; Statement of Feminist Majority Foundation President Eleanor Smeal, U.S. Newswire, Mar. 28, 2001, at 1-2 (emphasizing that, according to the foundation’s eight annual National Clinic Violence Survey, twenty percent of the nation’s women’s health clinics experienced severe violence or threats in 2000); O. Lee Reed, The State is Strong but I am Weak:  Why the “Imminent Lawless Action” Standard Should Not Apply to Targeted Speech that Threatens Individuals with Violence, 38 Am. Bus. L. J. 177, 178 [hereinafter The State is Strong] (detailing the occurrence of fifteen attempted murders, ninety-nine acid attacks, 154 arsons, and thirty-nine bombings affecting abortion provision in the last two decades).

[100] Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. 248 (1994) (protecting the safety of abortion rights supporters and abortion seekers in and around women’s health clinics); see Statement by Plaintiffs’ Counsel, Paul Weiss, in Planned Parenthood of Columbia/Willamette, et al. v. American Coalition of Life Activists, et al., Business Wire, Apr. 13, 2001, at 1 (announcing the filing of a petition for the Ninth Circuit to rehear the Planned Parenthood case en banc, because the first decision did not comport with the congressional intent of the FACE Act to defend abortion providers from violence and threats of violence).

[101] See Planned Parenthood, 224 F.3d at 1016, 1019-20 (concluding that First Amendment freedom absolutely protects the website’s statements because the anti-abortion activists neither planned nor advocated acts of violence against the health care providers).  But see The State is Strong, supra note 99, at 180 (contending that the Ninth Circuit erred in applying the imminent lawless action standard to the activists’ speech, because it was directed toward specific individuals and it took place in a violent context).  The imminent lawless action standard, a contemporary version of the clear and present danger standard, applies in circumstances where speech threatens individuals personally. Id.  The reasonable person standard applies in circumstances where individuals direct their speech at the state, an entity much better equipped than an individual person to tolerate threats. Id.

[102] Planned Parenthood, 224 F.3d at 1014.

[103] See id. (asserting that the First Amendment protects all statements as long as they do not “authoriz[e], ratif[y], or directly threaten violence”); Judgment on “Nuremberg”, supra note 87, at 79 (providing that the distances between users of the Internet eliminate the imminence from threatening communications and will therefore hinder efforts to regulate violent online expression).  See also The Marketplace, supra note 65 , at 431-35 (arguing that, beginning with Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), the Supreme Court established that Internet content deserves the full First Amendment protection of written material, and that the Internet most closely achieves the goals of the Marketplace Theory of free speech).

[104] See Judgment on “Nuremberg”, supra note 87, at 64 (stating that the Supreme Court, since the beginning of the Vietnam War, has not regulated speech in violent times and therefore will most likely not regulate threatening speech made in the midst of political debate).

[105] See id. (affirming that regulable political speech must be directly threatening to those to whom the words are targeted); The Hatefulness of Protected Speech, supra note 84, at 314 (claiming that, under the clear and present danger standard, the state may only proscribe political speech that clearly threatens safety).

[106] See Judgment on “Nuremberg”, supra note 87, at 67-68 (explaining that, because accessing information on the Internet and the World Wide Web requires a user to take a series of positive steps from dialing up a service provider to initializing browser software, offensive speech available online does not assault the user’s safe space as would offensive speech available through passive broadcast media); The Marketplace, supra note 65 , at 439-440 (stating that Internet users traditionally resist regulation of online speech so that anyone may say what they wish without facing obstacles).

[107] See Judgment on “Nuremberg”, supra note 87, at 69 (reasoning that the mechanics of accessing information on the Internet makes it an indirect form of communication and therefore less capable of conveying threats).

[108] See Victoria Shannon, Yahoo Faces Deadline to Block Nazi Items; French Court Affirms Auction Sites Ruling, Int’l Herald Trib., Nov. 21, 2000, at 1 [hereinafter Yahoo Faces Deadline] (explaining that a Paris court, after hearing additional testimony, affirmed a May 2000 decision to fine Yahoo! almost $13,000 per day if it failed to, within three months of the order, create a system for verifying the nationality of users accessing the company’s American websites).  E.g., Pierre-Antoine Souchard, Yahoo! Ordered to Bar French Users, Chattanooga Times/Chattanooga Free Press, Nov. 21, 2000, at C2 [hereinafter Yahoo! Ordered to Bar]; Yahoo! Vows to Fight Censorship: Internet Giant Says Putting a Limit on the Contents of Websites is too High a Price to Pay, Guardian (London), Nov. 23, 2000, at 7 [hereinafter Yahoo! Vows to Fight]; French Justice System Forces Yahoo to Filter French Users, Tech Europe, Nov. 24, 2000, at 1 [hereinafter Internet: French Justice System Forces].

[109] See Union des Etudiants Juifs de France and Ligue Contre la Racisme et L’Antisemitisme v. Yahoo! Inc.Yahoo! France, Tribunaux de grande instance [T.G.I.] [county court of original jurisdiction], Paris, Nov. 20, 2000, at  http://www.cdt.org/speech/international/001120yahoofrance.pdf. and

[110] See id. at 18-19 (referring to the Criminal Code that the hate speech groups charged Yahoo! with violating); Kurt A. Wimmer, Internet Jurisdiction, Nat’l L. J., Mar. 26, 2001, at A12 [hereinafter Internet Jurisdiction] (stating that allowing French citizens to access auctions of Nazi articles violated Article R. 645-1 of the French Criminal Code).

[111] See Yahoo! Ordered to Bar, supra note 108, at C2 (concluding that, because many, many French citizens lost their lives to the German campaigns of World War II, the French government employs statutes like Criminal Code Article R.645-1 to stifle racist speech); see Internet Jurisdiction, supra note 110, at A12 (remarking that French Criminal Code Article R.645-1 has been used by the French government to protect citizens from speech that supports Nazi beliefs and racism generally).

[112] Yahoo! Ordered to Bar, supra note 108, at C3 (noting that the anti-Semitism advocacy groups involved in the case were the Union of Jewish Students and the International Anti-racism and Anti-Semitism League).  See French Justice System Forces, supra note 108, at 1 (observing that the French anti-racism organization Mouvement Contre le Racisme et Pour L’Amitie Entre les Peoples also joined in the case).

[113] See Union des Etudiants Juifs de France and Ligue Contre la Racisme et L’Antisemitisme v. Yahoo! Inc.Yahoo! France, Tribunaux de grande instance [T.G.I.] [county court of original jurisdiction], Paris, May 22, 2000, 5-6, at http://www.cdt.org/speech/international/001221yahoocomplaint.pdf; Internet Jurisdiction, supra note 110, at A13 (quoting the court’s Yahoo! case decision); Yahoo! Ordered to Bar supra and note 108, at C2 (naming the French judge who decided the Yahoo! case).

[114] See Union des Etudiants Juifs de France, T.G.I., Paris, Nov. 20, 2000, at 20, at http://www.cdt.org/speech/international/001120yahoofrance.pdf ; Yahoo Faces Deadline, supra note 108, at 1 (describing the two French proceedings and the ultimate decision against Yahoo!). See also Yahoo! Ordered to Bar, supra note 108, at C2; Yahoo! Vows to Fight, supra note 108, at 7; French Justice System Forces, supra note 106 , at 1.

[115] See Amy Knoll, Any Which Way But Loose: Nations Regulate the Internet, 4 Tul. J. Int’l & Comp. L. 275, 278-9 (1996) [hereinafter Any Which Way] (asserting that the freedom with which Internet users can share information has prompted many countries to enact laws restricting their citizens’ access to materials that offend local standards); see also The Marketplace, supra note 65 , at 905-06 (suggesting that the possibility of ubiquitous, unrestricted online speech has caused many governments to consider new free speech legislation).

[116] See Yahoo! Ordered to Bar, supra note 108, at C2 (explaining that free speech advocates believe that the case may set a precedent for allowing some nations to impose their restrictive speech laws on operators of websites in other nations).  The French Yahoo! case has great implications for the ability of one country to assert jurisdiction over a business based in another country because its services are offered globally.  The Hague Conference began drafting the Jurisdiction and Foreign Judgments Convention to standardize the adjudication of just this type of lawsuit.  The jurisdictional matters involved in the French Yahoo! case are, however, beyond the scope of the discussion of this Comment.

[117] See Yahoo Faces Deadline, supra note 108, at 2 (emphasizing German concerns that American freedom of speech laws frustrate the government’s attempts to prevent the spread of neo-Nazi views on the Internet).  But see Any Which Way, supra note 115, at 290-1 (arguing that another source of the French resistance to the increasing importance Internet mistrust of the Anglophile Internet operator monopoly that threatens to eradicate information on the native French culture).

[118] See The Hatefulness of Protected Speech, supra note 84, at 317-18 (arguing that many European nations accept restrictions on speech that would harm the public by inciting racial hatred); See The Hatefulness of Protected Speech, supra note 84, at 312-13 (explaining how the marketplace of ideas theory, the clear and present danger test, and the ban on content regulation serve have, over time, limited regulable speech to only that which is imminently and inherently evil).

[119] See Sanford Levinson, Freedom of Expression in Contemporary American Constitutional Law, in Liberty of Expression, 45, 47 (Philip S. Cook ed. The Wilson Center Press 1990) (stating that the American public’s mistrust of government action motivates its desire to see the majority of speech left unregulated); see Legal and Constitutional Protections, supra note 79 , at 67 (commenting that the French public expects its government to restrict some types of speech in the interest of protecting individuals’ rights to be free from exposure to some abuses of expression).

[120] Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2000).

[121] See Could a Treaty Trump, supra note 10 , at 1303 (emphasizing the possible misuse of the Draft Convention’s public policy exception, given Member States’ various public policy interests).

[122] See Draft Convention, supra note 4 , at art. 28 (affirming that “recognition or enforcement of a judgment may be refused if . . . f) recognition or enforcement would be manifestly incompatible with the public policy of the State addressed.”).

[123] But see The Public Policy Exception, supra note 11 , at 795, 796, 799-08 (denying that the United States government would abuse the Draft Convention’s public policy exception because it has limited itself though prior decisions to invoking such an exception only in very specific circumstances).  Although a United States Supreme Court statement limits the judiciary to invoking a public policy exception in very specific situations, one of those situations is a case involving libelous speech.  It is precisely the goal of this Comment to argue that in cases involving the constitutional right to freedom of speech, the Draft Convention’s public policy exception to enforcement of foreign judgments will be invoked.

[124] See infra notes 129 -137 and accompanying text (recommending that the Hague Conference better define public policy and create an international body to settle public policy disputes).

[125] See Draft Convention, supra note 4 , at art. 28(1)(f) (omitting a definition of public policy that may conflict with the Draft Convention’s procedural rules).

[126] See Could a Treaty Trump, supra note 10 , at 1305-07 (arguing that invoking recent caselaw trends and regional standards as examples of public policy may prevent uniform enforcement of foreign judgments). 

[127] See id. at 1306 (calling for the creation of national standards for determining when foreign judgment enforcements conflict with Member States’ public policies).  But see The Public Policy Exception, supra note 11 , at 818-19 (asserting that, although Draft Convention signatories may initially invoke public policy exceptions to foreign judgment enforcement quite often, this will end as nations begin to recognize that strict adherence to international rules is the best way to ensure enforcement of their own judgments in other nations).  Although strict adherence to some international procedural rules may be possible, the importance of protecting civil liberties makes strict adherence to some rules, such as those affecting freedom of speech, virtually impossible.  In some instances, enforcement of a foreign judgment involving speech would force a nation to undermine its concept of the fundamental rights and duties of both citizens and government. Seesupra notes 20-41 and accompanying text.

[128] See Could a Treaty Trump, supra note 10 , at 1306 (discussing Telnikoff v. Matusevitch, 702 A.2d 230 (Md. 1997), as an example of a situation in which courts must decide between applying state or federal public policy when invoking an exception to a foreign judgment).

[129] See The Public Policy Exception, supra note 11 , at 818 (arguing that the public policy exception to the Draft Convention is necessary in order to reassure Member States that they have a mechanism for protecting their citizens against unjust judgments).  See also Could a Treaty Trump, supra note 10 , at 1302 (reaffirming that Hague Conference Member States will insist on inclusion of a public policy exception before becoming signatories to the Draft Convention).

[130] See supra notes 6 -7 and accompanying text (establishing the goal of the Draft Convention to standardize rules of international procedure and make outcomes of litigation more reliable).