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Silence of the Bluebird

In October 2012, amidst complaints from the French Union of Jewish Students (UEJF) in France, social networking site, Twitter, agreed to remove tweets associated with the anti-Semitic hash tag #unbonjuif.   Although Twitter complied with the group’s request to remove the tweets, the group filed suit against Twitter seeking the identities of the individuals responsible for the offensive tweets.  UEJF claims it requires the names to seek justice for the anti-Semitic tweets which, under French law, is considered hate speech and consequently illegal.

Twitter has refused to disclose the identities of the users claiming that the data is housed on servers in California where French law does not apply.

On February 15, however, a French judge ordered Twitter to hand over to the UEJF any data which it had that could aid in ascertaining the identities of the account holders who had posted the anti-Semitic tweets. However, the US-based company is not compelled to comply with the order of the French court, as the company does not have any offices or personnel in France.  Twitter, in response to the order, maintained that the data was stored on servers in the United States and accordingly, it was not obligated to reveal the identity of its users unless required to by a United States court.

A lawyer for Twitter said the only way the site could be forced to hand over details would be if the French justice system appealed to American judges to push for the data.  While it is not uncommon for a US court to recognize the judicial decision of a foreign country, it is unlikely that the French order will carry much weight with US judges.  Recognition of a foreign judgment will generally be denied if the judgment is substantively incompatible with basic legal principles in the US. 

Unlike France, whose penal code prevents communication that is defamatory or insulting, or which incites discrimination against a group of persons based on origin or ethnicity, the United States provides for absolute protection of free speech subject to certain limited exceptions.  In the US, expressions that are not lewd or obscene, profane, libelous or insulting or tend to incite an immediate breach of the peace are protected by the Bill of Rights.

In 1969 in Brandenburg v Ohio, the US Supreme Court established the ‘imminent danger’ test to determine whether a speaker’s expressions fell outside of the protection of the First Amendment.  According to the Supreme Court, only speech that is "directed to inciting or producing imminent lawless action" and is  "likely to incite or produce such action" will be exempt from First Amendment protection.

Accordingly, it is unlikely that a US court will enforce a French order that was issued on a basis of law that directly conflicts with the US Bill of Rights.

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