Mark, thanks for the comment! I’m no expert on the First Amendment issues presented by the case, but my post tries to suggest that leaving aside any comity concerns, it’s not clear that there was a First Amendment violation in the first place. In other words, it’s not really clear that the case would have come out differently if the main litigation had taken place here rather than in Japan. So I am not sure that the case really presents the issue you raise, namely, comity and deference to foreign judgments overriding US public policy. In any event, for the reasons I explain, it seems to me that any challenge to the constitutionality of a foreign judgment—which is what this case was—is doomed to fail on state action grounds. Maybe Yasuma would have done better by challenging the California statute as applied.

The cases in Viewfinder and Bachchan announce different, and in my opinion, lower standards for Freedom of Speech and Press cases. Freedom of speech, press and religion are enumerated and fundamental rights guaranteed by the U.S. Constitution. Shouldn’t the court have extended the same standard in Viewfinder and Bachchan to Ohno requiring in fundamental right cases the foreign jurisdiction have the same or substantially similar protections? Perhaps we are placing “comity” over fundamental rights. Your opinion?