CA Supreme Court Agrees To Review Appeals Court's Bludgeoning Of Section 230 And First Amendment

from the needs-to-be-at-least-50%-less-obtuse dept

Hopefully some good news will follow the bad news handed out by the California Appeals Court earlier this year. In a ruling that did some serious damage to Section 230 protections and the First Amendment, the court decided to enforce an injunction against Yelp for a defamatory review — despite Yelp not being an actual party to the lawsuit.

Dawn Hassell sued a former client over a defamatory review she allegedly posted on Yelp. The defendant, Ava Bird, never bothered to show up in court. Hassell secured a default judgment against Bird. All well and good, except for the fact that Hassell and the court brought Yelp into the equation, without ever giving the site a chance to respond to the proposed injunction.

This drive-by injunction opens the door for abuse by aggrieved parties. It allows plaintiffs to sue parties they’re pretty sure won’t show up in court, obtain default judgments, and use those judgments to force third parties to remove negative reviews, articles, etc. This eliminates any form of due process for third-party websites — services that should be covered by Section 230 whether or not they voluntarily remove reviews. Yelp was never given a chance to respond to Hassell’s allegations nor was it allowed to challenge the injunction she obtained.

Why the Appeals Court failed to see the potential for abuse or the due process issues raised is unclear. The good news is that the state’s Supreme Court has agreed to review the decision. Eugene Volokh and a host of other free speech advocates and lawyers have filed a brief ahead of the Supreme Court’s hearing, pointing out the host of negative consequences created by the lower court’s misguided decision.

[T]he decision below offers plaintiffs a roadmap for violating these speakers’ rights. Say a business dislikes some comment in a newspaper’s online discussion section. The business can then sue the commenter, who might not have the money or expertise to fight the lawsuit. It can get a consent judgment (perhaps by threatening the commenter with the prospect of massive liability) or a default judgment. And it can then get a court to order the newspaper to delete the comment, even though the newspaper had no opportunity to challenge the claim, and may not have even heard about the claim until after the judgment was entered. This is directly analogous to what plaintiff Hassell did in this very case.

It’s not as though shady reputation management outfits or thin-skinned entities need any encouragement to abuse the legal process to make criticism disappear. We’ve already seen abuse of both the DMCA process and the court system to push Google towards delisting reviews no court has actually found to be defamatory. The Appeals Court decision does nothing more than legitimize another shady tactic: suing someone who likely won’t appear in court, but enforcing the judgment against a deeper-pocketed party who definitely would have made an appearance… if only they’d actually been named in the lawsuit.

The brief goes on to point out that orders like this — predicated on arguments one party never had a chance to respond to — are unconstitutional and cannot be enforced.

Yelp, Amazon, and other such sites cannot be ordered to remove an allegedly libelous post, without an opportunity to themselves dispute this restriction on their own speech rights. The Court of Appeal erred in treating Yelp as essentially lacking First Amendment rights here. See Pet. for Review 22 (copy of Court of Appeal opinion) (“Yelp’s factual position in this case is unlike that of the . . . appellants [in Marcus v. Search Warrants, 367 U.S. 717 (1961)], who personally engaged in protected speech activities by selling books, magazines and newspapers.”). A site such as Yelp or Amazon is, if anything, even more engaged in protected speech than a bookstore, and more like a magazine creator than just a magazine seller: It creates a coherent speech product—a Web page that aggregates readers’ comments—and distributes it to readers. That 47 U.S.C. § 230 immunizes Yelp from tort liability as a publisher for the material that it reproduces does not strip Yelp of its First Amendment rights as a creator and distributor of the speech aggregating the material.

It’s almost unimaginable that this decision will be allowed to stand. It upends the legal process and creates a hostile environment for third-party content hosts in California. But it’s impossible to claim this definitely will be overturned, what with the state’s courts displaying an unfortunate amount of schizophrenia when handling Section 230-related cases. At stake here is the First Amendment, more than Section 230 protections, but both are definitely under attack. The Appeals Court has given plaintiffs a way to route around Section 230 and stifle speech hosted by services they’ll never have to face off with in court.

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Companies: yelp

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Comments on “CA Supreme Court Agrees To Review Appeals Court's Bludgeoning Of Section 230 And First Amendment”

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Anonymous Coward says:

ROFL! Sending in the TD B-Team to discuss a complicated point of law. I guess finding people with even a minimal background in the issue discussed is too much for the TD “give it away for free/let the comments correct our ridiculous and numerous mistakes” biz model.

Stupid is as stupid does, Mike. Egg’s on yo’ face, my friend. Many dozens.

Anonymous Coward says:

Re: Re:

“B-Team to discuss a complicated point of law.”

Yeah, the nerve. Only lawyers are allowed to discuss such things – the little people have no business even attempting to understand the laws to which they must abide. What do you think would happen if everyone started obeying the laws? Armageddon I say! Is that what you want?

That One Guy (profile) says:

Fingers crossed

Hopefully the CA supreme court reverses or nullifies the earlier ruling, as otherwise they might as well toss out 230 entirely, at least as far as CA is concerned. If you can bypass the protections services have against being held accountable for the posts of their users simply by only involving them at the very end, after any chances for them to object have passed then those protections become completely meaningless and trivial to bypass, to the point that they may as well not exist for all the good they do.

While I’m sure there would be many a lawyer and prosecutor just salivating at the massive opportunities that would open up for them the massive chilling effects such a ruling would have on speech far outweighs their interests in personal gain.

Whatever (profile) says:

Due What?

I love this article because it almost entirely misses the point, which is that Yelp should not have a choice in the matter because they are only the host – not the author of or the owner of the comments / review in question.

To give you a real world example, it would be a like a magazine being ordered off the shelves (stolen images, or whatever), and a small news stand saying “you can’t do it, because we didn’t get due process!”. They don’t get that choice. It’s the same manner as the operator of the printing press not getting to second guess the courts and print things even after they are ordered not to. They don’t get a choice in the matter, the ruling is against the author and NOT the website in question.

Using section 230 to keep such reviews / posts up would essentially neuter the courts. A judgment (even a default one) should not suddenly be moot “because 230”. That would essentially make libel online a form of protected speech above and beyond what is allowed in the first amendment. It would leave the choice to private companies rather than to the courts are to what is and what is not acceptable.

I am suspecting a solid ruling in support of the original judgement.

Michael (profile) says:

Re: Due What?

Actually, you have missed the point entirely.

it would be a like a magazine being ordered off the shelves (stolen images, or whatever), and a small news stand saying “you can’t do it, because we didn’t get due process!”

You are correct, it is EXACTLY like this, except if a publisher was sued for printing something and lost, the PUBLISHER would be ordered to pull the publication and they would have to go retrieve the magazines from the store shelves. If a store decided to fight this action, they could then file a motion with the court.

If the Yelp reviews had been ordered taken down by the users that posted them, there would be no story here. They would have to go to Yelp and remove the reviews, the court cannot and should not order someone that is not a party to a suit to do anything.

Whatever (profile) says:

Re: Re: Due What?

” the court cannot and should not order someone that is not a party to a suit to do anything.”

In absence of the defendant taking any action (this is a default judgement) the court can be petitioned to take action to stop what it has found to be unacceptable. If the court didn’t take this action, it’s judgement would be meaningless and would have accomplished nothing.

Quiet Lurcker says:

Re: Re: Due What?

Actually, you’re both wrong. Dead wrong.

First, if a person posts a review of a professional visit, that person is posting personal opinion based on a set of facts. That gets wide latitude in the courts.

Second, the only reason there’s a judgment here is because the defendant did not respond to the suit. Absent a particularly poor ruling, had there been even a token defense (including CA anti-SLAPP statute, if you please), the case would likely have gone away.

Third, the web site gets a pass because the author of the web site is is squarely within section 230 of the CDA.

Finally, I would not be surprised to see some enterprising attorney appeal this kind of ruling on 14th amendment grounds some one of these days. A print newspaper or magazine, a radio station, a tv station, would not be forced to face similar situation. There are protections already in place for analagous situations in the real world. Holding web publishers to differing standards than print, tv or radio publishers simply because it’s ON THE WEB(tm) should just not be right.

That One Guy (profile) says:

Re: Due What?

They don’t get a choice in the matter, the ruling is against the author and NOT the website in question.

Like hell it isn’t. It may not technically be against the site, but for all intents and purposes they are being held accountable for the actions of one of their users. They’re being told ‘take down this comment posted by a user of your site or face legal consequences’, something that wouldn’t fly if they were sued directly which is why the one who filed the lawsuit didn’t name them as a defendant and tried to bypass the law granting them protections against that very thing.

If the ruling really isn’t against them then they could ignore it entirely without consequence, just like I could safely ignore a ruling made against someone else because I wasn’t involved, yet I rather doubt that’s the case here.

If the ruling is against the author and not the website then go after the author, not the website. Can’t get ahold of them? Then look harder. They refuse to show? Have the judge issue a bench warrant and/or contempt of court against them.

At no point do you get to say ‘well, finding the actual author and making them take down their post is too difficult, so we’ll just skip that step’.

You don’t get to bypass the protections in the law just because you’re too lazy to do it right, and if at the end of the day you still can’t get ahold of the person? Tough luck, you’re welcome to try your case against the site directly, have fun getting around the law when the site actually has a chance to defend themselves.

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