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Wherein We Ask The California Supreme Court To Lessen The Damage The Court Of Appeal Caused To Speech

from the nothing-to-see-here dept

A few weeks ago we posted an update on Montagna v. Nunis. This was a case where a plaintiff subpoenaed Yelp for the identity of a user. The trial court originally denied Yelp's attempt to quash the subpoena – and sanctioned it for trying – on the grounds that platforms had no right to stand in for their users to assert their First Amendment rights. We filed an amicus brief in support of Yelp's appeal of that decision, which fortunately the Court of Appeal reversed, joining another Court of Appeal that earlier in the year had also decided that of course it was ok for platforms to try to quash subpoenas seeking to unmask their users.

Unfortunately, that was only part of what this Court of Appeal decided. Even though it agreed that Yelp could TRY to quash a subpoena, it decided that it couldn't quash this particular one. That's unfortunate for the user, who was just unmasked. But what made it unfortunate for everyone is that this decision was fully published, which means it can be cited as precedent by other plaintiffs who want to unmask users. While having the first part of the decision affirming Yelp's right to quash the subpoena is a good thing, the logic that the Court used in the second part is making it a lot easier for plaintiffs to unmask users – even when they really shouldn't be entitled to.

So Yelp asked the California Supreme Court to partially depublish the ruling – or, in other words, make the bad parts of it stop being precedent that subsequent litigants can cite in their unmasking attempts (there are rules that prevent California lawyers from citing unpublished cases in their arguments, except under extremely limited circumstances). And this week we filed our own brief at the California Supreme Court in support of Yelp's request, arguing that the Court of Appeal's analysis was inconsistent with other California policy and precedent protecting speech, and that without its depublication it will lead to protected speech being chilled.

None of this will change the outcome of the earlier decision - the user will remain unmasked. But hopefully it will limit the effect of that Court of Appeal's decision with respect to the unmasking to the facts of that particular case.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 24 Jan 2018 @ 1:41pm

    "which means it can be cited as precedent by other plaintiffs who want to unmask users"

    Just more proof of how corrupt the system is. But be sure to remind Mike if you see him that these guys are the experts.

    If this sets precedent, why are all of the other cases before this one where the decision was different not precedent either? Sounds to me like precedent is becoming a one-sided word where it is only precedent when a citizen is failed by the system, but just called a decision instead of precedent when a citizen prevails despite the system.

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 1:58pm

      Re: "Just more proof of how corrupt" -- lawyers are.

      "Precedent" is just one of the many ways that the medieval monopoly manipulates the playing field out of sight.

      "First, kill all the lawyers". The shame is that we haven't.

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

      • icon
        Stephen T. Stone (profile), 24 Jan 2018 @ 5:40pm

        Re: Re: "Just more proof of how corrupt" -- lawyers are.

        "First, kill all the lawyers". The shame is that we haven't.

        If you want to kill people for no other reason because of their chosen profession, why would you ever start with lawyers? Politicians, financial advisors, and the people who made Adobe Flash are much better first targets.

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

      • identicon
        Dwight Brown, 25 Jan 2018 @ 7:03am

        Re: Re: "Just more proof of how corrupt" -- lawyers are.

        "First, kill all the lawyers". The shame is that we haven't.

        Do I get to be the first one to point out that those words were spoken by a follower of a demagogue, who was seeking to overthrow the government and establish his own dictatorship?

        And that, in context, Shakespeare was suggesting that lawyers and the law are one of the things standing between us and tyrants?

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

    • icon
      Sharur (profile), 24 Jan 2018 @ 2:55pm

      Re:

      The other cases are precedent, but the word doesn't mean what you think it does.

      Precedent is that which has come before; specifically, cases that have been decided on similar issues.

      There are essentially two types of precedent:
      1. Same court rulings: As a legal concept, a court is "supposed to, in ideal fairy land" rule the same way on the same issues, unless their are different relevant facts or the law has changed in the interim. Courts tend rule consistently with their past rulings, but are not required to.

      2. Higher court rulings are considered "binding" on lower courts (i.e. the higher court has shown which way it has ruled in the past,(see point#1), and will likely rule on appeal. Successful appeals are generally considered a BAD THING, i.e. someone has messed up and we're fixing the issue. Its good that its now fixed, but it shouldn't have been broken in the first place.)

      The issue is that this is the CA Supreme Court, so its binding on all other courts in California. The only appeal is to the US Supreme Court, who only take a fraction of the cases that request their review.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 24 Jan 2018 @ 1:55pm

    "ok for platforms to try to quash subpoenas" -- ONLY IF DO IT EVERY CASE! Else is just another way for a "platform" to disadvantage certain speech.

    I can see the argument, but a "platform" isn't a platform if defends only CERTAIN users and not ALL: it then becomes a PARTISAN with hidden way to discriminate against speech it doesn't like.

    So yes, let's add providing first line of defense attorneys to corporate DUTIES, and make it an ENTITLEMENT of "natural" persons in exchange for us letting the useful fictions and advantages of the corporation exist.

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 3:36pm

      Re: "ok for platforms to try to quash subpoenas" -- ONLY IF DO IT EVERY CASE! Else is just another way for a "platform" to disadvantage certain speech.

      “Natural persons” lol

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 3:59pm

      Re: "ok for platforms to try to quash subpoenas" -- ONLY IF DO IT EVERY CASE! Else is just another way for a "platform" to disadvantage certain speech.

      You have no idea what you're talking about, part 500.

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

    • identicon
      Anonymous Coward, 24 Jan 2018 @ 5:24pm

      Re: "ok for platforms to try to quash subpoenas" -- ONLY IF DO IT EVERY CASE! Else is just another way for a "platform" to disadvantage certain speech.

      > bitches about corporations
      > argues for useful fictions and advantages of the corporation

      This, ladies and gentlemen, is what it looks like to have your head stuck so far up your ass, your lungs start filtering indole and skatole into your bloodstream instead of oxygen.

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

    • icon
      Stephen T. Stone (profile), 24 Jan 2018 @ 5:44pm

      Re: "ok for platforms to try to quash subpoenas" -- ONLY IF DO IT EVERY CASE! Else is just another way for a "platform" to disadvantage certain speech.

      a "platform" isn't a platform if defends only CERTAIN users and not ALL

      Laws that allow for the self-moderation of platforms say otherwise.

      it then becomes a PARTISAN with hidden way to discriminate against speech it doesn't like

      Go tell a White supremacist forum that they must defend a user who posts “Black Lives Matter” to remain a platform, see how well that works out for you.

      let's add providing first line of defense attorneys to corporate DUTIES, and make it an ENTITLEMENT of "natural" persons in exchange for us letting the useful fictions and advantages of the corporation exist.

      Oh lord, you’re Mr. SovCit. From one person to another: When you travel, do you drive without a license?

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

  • identicon
    Anonymous Coward, 24 Jan 2018 @ 4:05pm

    Precedent and Equal Protection

    … make the bad parts of it stop being precedent…

    In other words, you want the California courts to treat the next person who shows up with similar circumstances differently than they treated the last person in those circumstances.

    That's actually rather problematic.

    Amendment XIV, Section 1

    No state shall  . . .  deny to any person within its jurisdiction the equal protection of the laws.

    When the courts follow the precedents established by previous decisions, they ensure that people in similar circumstances enjoy equal protecion under law.

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

  • identicon
    Anonymous Coward, 24 Jan 2018 @ 6:45pm

    Equal protection under the law? What's in your wallet? Or perhaps you know the hooker frequented by the magistrate.

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

  • icon
    ysth (profile), 24 Jan 2018 @ 7:38pm

    what we?

    The text of the article should mention the Copia Institute at least once.

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

  • identicon
    oliver, 24 Jan 2018 @ 11:33pm

    Hi TD..
    horse.... meet barn..... say hi to open door!
    If , as you assert, that opinion is already published, how come to try to unpublish it?
    Is this like trying to push the toothpaste back into the tube?
    What gives?

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


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