California Appeals Court Issues A Ruling That Manages To Both Protect And Undermine Online Speech

from the good-news-bad-news dept

Earlier this year I wrote about Yelp's appeal in Montagna v. Nunis. This was a case where a plaintiff had subpoenaed Yelp to unmask one of its users and Yelp tried to resist the subpoena. In that case, not only had the lower court refused to quash the subpoena, but it sanctioned Yelp for having tried to quash it. Per the court, Yelp had no right to try to assert the First Amendment rights of its users as a basis for resisting a subpoena. As we said in the amicus brief I filed for the Copia Institute in Yelp's appeal of the ruling, if the lower court were right it would be bad news for anonymous speakers, because if platforms could not resist unfounded subpoenas then users would lose an important line of defense against all the unfounded subpoenas seeking to unmask them for no legitimate reason.

Fortunately, a California appeals court just agreed it would be problematic if platforms could not push back against these subpoenas. Not only has this decision avoided creating inconsistent law in California (earlier this year a different California appeals court had reached a similar conclusion), but now there is even more language on the books affirming that platforms are able to try to stand up for their users' First Amendment rights, including their right to speak anonymously. As we noted, platforms can't always push back against these discovery demands, but it is often in their interests to try protect the user communities that provide the content that make their platforms valuable. If they never could, it would seriously undermine those user communities and all the content these platforms enable.

The other bit of good news from the decision is that the appeals court overturned the sanction award against Yelp. It would have significantly chilled platforms if they had to think twice before standing up for their users because of how much it could cost them financially for trying to do so.

But any celebration of this decision needs to be tempered by the fact that the appeals court also decided to uphold the subpoena in question. While it didn't fault Yelp for having tried to defend its users, and, importantly, it found that it had the legal ability to, it gave short shrift to that defense.

The test that California uses to decide whether to uphold or quash a subpoena is a test from a case called Krinsky, which asks whether the plaintiff has made a "prima facie" case. In other words, we don't know if the plaintiff necessarily would win, but we want to ensure that it's at least possible for plaintiffs to prevail on their claims before we strip speakers of their anonymity for no good reason. That's all well and good, but thanks to the appeals court's extraordinarily generous read of the statements at issue in this case, one that went out of its way to infer the possibility of falsity in what were at their essence statements of opinion (which is ordinarily protected by the First Amendment), the appeals court decided that the test had been satisfied.

This outcome is not only unfortunate for the user whose identity will now be revealed to the plaintiff but for all future speakers now that there is an appellate decision on the books running through the "prima facie" balancing test in a way that so casually dismisses the protections speech normally has. It at least would have been better if the question considering whether the subpoena should be quashed had been remanded to the lower court, where, even if that court still reached a decision too easily-puncturing of the First Amendment protection for online speech it would have posed less of a risk to other speech in the future.


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  • icon
    MyNameHere (profile), 14 Nov 2017 @ 12:26pm

    Balanced?

    It seems this ruling lands about where it should.

    Yelp gets a "win" in the sense that they (and over site owners) have standing to complain about a warrant.

    Anonymous posters get a win because posting your opinion, providing it isn't found to be actionable speech, will be protected - and your anonymous standing will be protected as well.

    Everyone else gets a win because truly outrageous speech, which under any other circumstance would be actionable, now has a route by which that action can happen. Websites cannot use section 230 as a complete wall to stop any and all actions, those actions which appear to make the case get easily over the wall.

    I think it's win, win, win.

    reply to this | link to this | view in chronology ]

    • identicon
      911DidNotChangeTheConstitution, 14 Nov 2017 @ 3:02pm

      Fascist..

      Any speech, including "truly outrageous" is protected speech.

      The amendment does not say "Unless it offends someone, or pisses someone off, your speech is protected".

      It says that "You have the right to freedom of speech".

      It doesn't have any leeway whatsoever. No wiggle room, no exceptions.

      Anyone who thinks it does is a fascist traitor to the constitution.

      reply to this | link to this | view in chronology ]

      • icon
        Dan (profile), 14 Nov 2017 @ 4:00pm

        Re: Fascist..

        So any legal consequences for defamation are unconstitutional?

        reply to this | link to this | view in chronology ]

        • identicon
          911DidNotChangeTheConstitution, 15 Nov 2017 @ 7:39am

          Re: Re: Fascist..

          Saying something outrageous is not, in and of itself, actionable.

          It is only when actions are taken either because of the statement or following through with the statement, where said action(s) causes harm to another, that the statement(s) become actionable.

          Yelling fire in a crowded theater, if nobody panics and nobody is injured, isn't legally actionable.

          It's stupid, it's dumb, but it isn't in and of itself actionable.

          If people panic, and someone gets injured, then it becomes actionable.

          If we argue and you make me angry, and I yell "I'm going to kick your ass!" in the heat of the moment, is not actionable unless I actually follow through or attempt to follow through with the statement.

          Our fascist government would love to say otherwise so that they can arrest and imprison anyone that doesn't agree with them, but they can't as long as we uphold the Constitution.

          I'll even go one step further, in that if someone, when angry yells "I'm going to kill you!", yet does not make any attempt at following through, is not actionable.

          It is only when there is evidence of someone preparing to follow through with statements like that, that they then become actionable.

          Millions of people say that to millions of others every day. If everyone was arrested because they shot their mouth off, but did nothing else, our entire population would be in prison, with nobody left to be judge, jury or prison guard.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Nov 2017 @ 1:28pm

            Re: Re: Re: Fascist..

            You can't threaten agents of the government with "I'm gonna kick your ass" or worse if you don't want to end up in jail with a bunch of sick sadistic jail employees looking at your penis through the scanner making salacious comments to each other.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2017 @ 10:30am

          Re: Re: Fascist..

          So any legal consequences for defamation are unconstitutional?

          Obviously, based on the text. (Just as obvious that courts aren't going to agree.)

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 12:50pm

    Anonymous posters get a win because posting your opinion, providing it isn't found to be actionable speech, will be protected

    Not on Yelp though. Try to even look at Yelp over Tor and you'll see how much they "value" anonymity.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 4:35pm

    Are They Truly Anonymous?

    I don't know the US laws perfectly and maybe I'm not business savvy so feel more than welcome to correct me but...

    If Yelp keeps any records worth subpoena-ing, are the commentators truly anonymous?

    If Yelp is willing to resist the subpoena, they must keep identifying information. If they keep identifying information then that means they intend to provide that information to someone at some point. If they're willing to provide that information for any purpose then they are not providing an anonymous platform.

    As I write this comment I accept that TechDirt has the ability to log my IP, location, User-Agent data, anything I've typed in above fields, time stamps, and more. I also accept that their advertising partners can both access and leave cookies in my browser files for better targeted advertising. These are the things I can think of, there are probably a lot more pieces of traceable data. Techdirt will display my name as "An Anonymous Coward" but they and I both know my data can be provided to another party for any reason they see fit.

    Essentially we can call allowing subpoenas on social platforms a hindrance to free speech, but that assumes we were anonymous to begin with. If companies store identifying information that can be provided at any time based on their discretion then a subpoena being easier to grant means nothing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 5:37am

      Re: Are They Truly Anonymous?

      If Yelp is willing to resist the subpoena, they must keep identifying information.

      Probably. As noted above, they block users who are actually trying to stay anonymous (Tor users can't even view the site.) A company might resist a subpoena on principle even if they have no responsive information, but then why would they be blocking users they can't identify?

      Techdirt will display my name as "An Anonymous Coward" but they and I both know my data can be provided to another party for any reason they see fit.

      I post over Tor, but I hope they'd fight subpoenas against me even if that's all the information they have. (BTW, it seems foolhardy to browse without any "protection" these days. Even people who don't care much about anonymity should do something to avoid the ISP/advertiser/NSA panopticon.)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 1:17pm

    America has a real enemy chisling away at the US Constitution. Who are the judges that sit postured to deliver blow after blow decisions that consistantly rule in new world order's abilities to render protections meaningless and more what is their motivations for doing so?

    reply to this | link to this | view in chronology ]


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