Supreme Court Refuses To Hear Case That Threatened CDA 230

from the good-news! dept

As we noted earlier this year, the California Supreme Court wisely sided with Yelp in a legal fight over whether or not the company could be forced to remove reviews based on another legal dispute of which Yelp was not a party. The crux of the case was about Section 230 of the CDA. As we detailed back in 2016, a lower court had initially ordered Yelp to take down a review that the court found to be defamatory (though, it was on default judgment as the defendant in the case decided to not show up in court). The case was brought by a lawyer, Dawn Hassell, who sued a former client, Ava Bird, claiming that Bird had posted a negative review of Hassell's legal work. Bird then ignored the lawsuit, leading to the default judgment -- all of which is fine. But then the court issued an injunction against Yelp, ordering it to take down the review, despite Yelp not even being a party to the lawsuit.

The California Supreme Court properly ruled that the injunction should be thrown out, based on CDA 230, which (as we've discussed over and over again) says that an internet service provider (such as Yelp) cannot be held liable due to the speech of a user (such as Ava Bird). This was a pretty standard and "easy" ruling on CDA 230, and the court had many cases to cite. And thus, it's good news that the US Supreme Court has denied Hassell's cert petition to hear the case -- meaning the California ruling stands. It shouldn't be a surprise that the Supreme Court decided not to hear the case, as there is widespread agreement that this is exactly how CDA 230 is meant to work and it's how basically every circuit that has ruled on this issue has found, sot here's no circuit split to deal with. Having the Supreme Court refuse to hear a case isn't always newsworthy, but it's at least a bit of a relief that the court apparently didn't think this one was an issue worth reconsidering. The internet and the services we all use, remain protected... for now.

Filed Under: ava bird, california, cda 230, dawn hassell, free speech, hassell v bird, intermediary liability, reviews, section 230, supreme court
Companies: yelp


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  • icon
    Gary (profile), 23 Jan 2019 @ 1:45pm

    CDA 230 protecting everyone* since 1996!


    *This post made possible by CDA 230 and all the common law handed down by courts since.

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

  • icon
    Mason Wheeler (profile), 23 Jan 2019 @ 2:17pm

    OK, this is just weird. I'm all for CDA 230 protections, but this specific case takes it way too far and IMO is applying it all wrong.

    Protection from liability means that they can't be sued for this (so *of course* they won't be a party to the lawsuit in question!) and end up having to pay damages if someone writes a defamatory post on their site, which is exactly as it should be, but defamation is still defamation. If it's been found to be defamatory in a court of law and the court ordered it taken down, how does CDA 230 mean that they get to ignore that? That's not intermediary liability protection; that's contempt.

    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, 23 Jan 2019 @ 3:57pm

      Re:

      The Supreme Court will knock Section 230 down once they want to. They're just waiting for the internet to be built out until it does. If they wanted to uphold 230 they would have done so already.

      That the court has not simply affirmed 230 is the key here.

      230 is being used by cybercriminals as a sword rather than a shield. Generally, the rich and powerful pay the judgment-proof or those who can't be sued from other countries to defame their enemies, then they pay others to link to the defamation as if it were all third parties when in fact it's just a big mafia using libel to silence their critics.

      The lawyers also set up people with hot tempers to repeat what is said on these defamatory sites, then the lawyers rush in to defend the people they set up, either draining the bank accounts if they are rich, or crowdfunding the lawsuits in the name of "free speech" if they are poor. It's a racket that the feds are well aware of and are going to take down at some point. When they do, it will be an earthquake in the legal profession.

      The Aspie/4Chan crowd here is deliberately ignoring this but those with real power are not.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 4:21pm

        Re: Re:

        Funny how in your imaginary conspiracy, the rich and powerful are somehow both pulling all the strings but also will be suddenly defeated by the rich and powerful.

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

      • icon
        Stephen T. Stone (profile), 23 Jan 2019 @ 4:41pm

        Re: Re:

        230 is being used by cybercriminals as a sword rather than a shield.

        Provide one example — with proper citations — of a “cybercriminal” using Section 230 in the way you describe.

        The Aspie … crowd

        Yeah, uh…flinging around accusations of people having autism as an insult, thinly veiled though it may be, does nothing to aid your argument. Even if someone is autistic, if they make a good point of argument and back it up with a solid premise based on facts, that they are autistic is irrelevant. Go back to 4chan if you want to get away with that bullshit, son.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 6:27pm

        Re: Re:

        You really are starting to sound like Dr Claw from Inspector Gadget. Though since he was a cyborg detective it does fit your dirty dirty cyber-lawyer fantasy.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 6:33pm

        Re: Re:

        Remember when you said this website was wrong on every single law and had no influence?

        ACTA said hi, it wants to tell you it's saved a seat for you right next to SOPA.

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

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 4:06pm

      Re:

      The takedown was based on a default judgement, rather than an actual finding of defamation. Let the nose of that camel under the tent, and scummy lawyers will ensure that the whole herd follows it in.

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

      • icon
        nasch (profile), 24 Jan 2019 @ 10:31am

        Re: Re:

        The takedown was based on a default judgement, rather than an actual finding of defamation.

        Are default judgments less legally important/binding/whatever than contested ones?

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

    • identicon
      cpt kangarooski, 23 Jan 2019 @ 4:08pm

      Re:

      Well, one factor may be that it wasn’t found to be defamatory on the merits; there was a default judgment where, for lack of any defense, the claims of the plaintiff alleging defamation had to be accepted.

      More importantly though, let’s say that Yelp had been a party to the defamation suit. If so, the ruling would clearly be that they were not liable for it and did not have to do anything about it. Why then would a different result be expected if they’re not a party?

      Remember, aside from the treatment of service providers as non-publishers, one of the key parts of the law is 47 USC 230(e)(3) which prohibits any action under state law against a service provider if it is inconsistent with section 230. That includes injunctive relief such as court orders to take down material. And having service providers ever take anything posted by a third party down other than by the provider’s own choice would be inconsistent with section 230.

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

      • icon
        Davelaw (profile), 23 Jan 2019 @ 7:32pm

        Re: Re:

        Denial of cert was all but inevitable. Medytox v. Investorshub.com was denied cert by the USSC in 2015. Medytox sued for an order for takedown for content that was ostensibly found to be defamatory in a different court in adjudicated proceedings, not a default. The Florida courts held that section 230 precluded the action. That is the outcome Hassell was trying to avoid by not suing Yelp, and that tactic wasn’t lost on the higher courts.

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

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 5:29pm

      Re:

      But a default judgment isn't a finding based on facts, but on procedure. You'd need to prove the claims were fact before it would be just to attack 1st amendment rights.

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

    • icon
      Mike Masnick (profile), 24 Jan 2019 @ 12:12am

      Re:

      Protection from liability means that they can't be sued for this (so of course they won't be a party to the lawsuit in question!) and end up having to pay damages if someone writes a defamatory post on their site, which is exactly as it should be, but defamation is still defamation. If it's been found to be defamatory in a court of law and the court ordered it taken down, how does CDA 230 mean that they get to ignore that?

      Because if they are facing liability for that (i.e., punishment from the court) then they are facing liability due to third party speech, and courts have regularly found that to be precluded by CDA 230.

      Now, there is a point that many have made that once a court has found the work to be defamatory sites should take it down... and, the fact is that most sites WILL do so upon a legitimate court order. And, of course, even that process has now been abused. As we've discussed in the past, people started forging court orders, or suing "fake" defendents who would immediately admit guilt and "settle" the case, just to get a court order that could be sent to a site to remove content.

      Having CDA 230 protect sites from liability over all of this is the only way to prevent widespread use of the courts for censorship. Most reputable sites will still take down content based on a legitimate court order, so the "harms" that people are talking about are quite limited. But taking away CDA 230 protections in such cases would create lots of new harms in the form of takedowns.

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

      • icon
        Mason Wheeler (profile), 24 Jan 2019 @ 7:57am

        Re: Re:

        But taking away CDA 230 protections in such cases would create lots of new harms in the form of takedowns.

        Perhaps, but judicially-mandated takedowns are exactly what we need to fix the far, far greater problem of extrajudicial takedowns.

        I don't think any reasonable person would claim that there does not exist any content that is unworthy of being posted online. There's plenty of room for debate on exactly what it is and how to define bad content, but we can safely take as a given that there is some content that needs to be taken down, and that some standard to define such content should be established.

        The question then becomes, by what mechanism should content be found to offend against this standard and required to be removed? The current system of DMCA takedowns is a massive mess from beginning to end, for reasons I shouldn't need to explain to anyone on this site, yourself least of all! But then what is the alternative?

        The only alternative to a system of extrajudicial takedowns is a system of judicially-mandated takedowns. And before someone inevitably says it, yes, this article is about defamation whereas the DMCA is about copyright, but even raising that objection illustrates the problem: having multiple different mechanisms and rules overcomplicates the system. Better to have one unified system with one unified set of rules.

        As for the other objection:

        As we've discussed in the past, people started forging court orders, or suing "fake" defendents who would immediately admit guilt and "settle" the case, just to get a court order that could be sent to a site to remove content.

        This is true. But as you have also discussed in the past, people, both website administrators and judges, are beginning to wise up to this tactic. Its days are numbered, especially if people start going to jail for fraud when they do it.

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

        • icon
          Stephen T. Stone (profile), 24 Jan 2019 @ 9:11am

          Re: Re: Re:

          The question then becomes, by what mechanism should content be found to offend against this standard and required to be removed?

          No, the correct question is this: “How do we define this standard in a way that strikes at as narrow a slice of speech and expression so it does not run afoul of the First Amendment?” Define the standard first; only then do you need to worry about how the government will enforce it.

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

          • icon
            Mason Wheeler (profile), 24 Jan 2019 @ 9:15am

            Re: Re: Re: Re:

            Yes, I said this literally right before the part you quoted:

            There's plenty of room for debate on exactly what it is and how to define bad content, but we can safely take as a given that there is some content that needs to be taken down, and that some standard to define such content should be established.

            The question then becomes, by what mechanism should content be found to offend against this standard and required to be removed?

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

            • icon
              Stephen T. Stone (profile), 24 Jan 2019 @ 9:31am

              Yes, I read that. And I will worry about how to enforce the standard after the standard has been set.

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

              • icon
                Mason Wheeler (profile), 24 Jan 2019 @ 9:36am

                Re:

                Which has already happened in our country. I said that as a rhetorical device to lay the groundwork for my point, not as a thing that needs to happen in the future. We have standards about bad content which are largely (if not perfectly) correct. The place where we have a massive problem is in how we deal with it.

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

      • icon
        nasch (profile), 24 Jan 2019 @ 10:35am

        Re: Re:

        So once content has been found defamatory, I assume the speaker can be compelled to remove it if possible. If the platform does not provide a mechanism for the user to delete that content, then there is no recourse to the plaintiff?

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

        • icon
          Mason Wheeler (profile), 24 Jan 2019 @ 10:49am

          Re: Re: Re:

          Exactly. There's an important distinction to draw between legal *liability* (the ability to be punished when something wrong happens) and legal *obligation* (the requirement to comply with the law.) This article, and the court case that prompted it, is a very unfortunate blurring of that distinction.

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

  • identicon
    Anonymous Coward, 23 Jan 2019 @ 3:48pm

    That sound you just heard was Jhonny boy burying into a fresh round of tears.

    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, 23 Jan 2019 @ 4:04pm

      Re:

      The 4Chan/Aspie stalkers are amazing.

      Lots of law firms rely on 230 because they use it to target litigious individuals by paying the judgment-proof or out-of-reach types to defame the targets, then they link anyone who doesn't like the target to the defamation, let nature take its course (the person they set up to be sued repeats the defamation), and then they cash in by defending the stooge who doesn't realize they were being set up.

      Making some4one defenseless against libel has a much greater chilling effect on free speech than the absence of 230 would. Anyone with a logical brain who isn't being paid to ignore this can see that very clearly.

      Some pawns have been fleeced out of six figures or more by this lawyer-driven scam, one which would not be possible without section 230. Some have evevn crossed the line into CHARITY FRAUD, and that will be their likely downfall.

      Like I said, an epic takedown is in the works, both from the feds and from the pawns, some of wwhom are people that smart people would never have attempted to do this to in the first place.

      What is done in the dark will be brought to the light.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 4:22pm

        Re: Re:

        Name a law firm you think does this.

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

      • icon
        Stephen T. Stone (profile), 23 Jan 2019 @ 4:28pm

        Re: Re:

        What is done in the dark will be brought to the light.

        Dude, no one wants to see your self-made masturbation videos.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 4:47pm

        Re: Re:

        Making some4one defenseless against libel has a much greater chilling effect on free speech than the absence of 230 would.

        Explain hoe making third parties responsible for other peoples speech will not result in those third parties vetting every user posting and comment before letting it appear on their site, and how that will not silence the majority of people.

        Making third parties responsible means that they will limit and control speech, destroying the platforms by which users can publish their speech. The result will turn the Internet into a one way broadcast medium, with shopping sites.

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 5:00pm

        Re: Re:

        Charity fraud?

        Holy shit you guys, it's Charles Carreon!

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

      • identicon
        Anonymous Coward, 23 Jan 2019 @ 6:23pm

        Re: Re:

        Oh so we are doing the dirty cyber-lawyer mob fantasy. Goddamnit it my strategically ventilated judges robe is at the cleaners.

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

  • icon
    Stephen T. Stone (profile), 23 Jan 2019 @ 4:28pm

    Oh look, 230 lives. Imagine that.

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

  • identicon
    Anonymous SuperHero, 23 Jan 2019 @ 6:23pm

    so

    So, if they cant be held liable for speech of a user then they should not also be allowed ot ban people based on speech they use...

    ya something needs to get addressed....

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

    • icon
      Gary (profile), 23 Jan 2019 @ 6:37pm

      Re: so fake

      So nice fake out. 230 explicitly allows providers to moderate. Before 230, *any* moderation meant 100% liability for others speech so posting boards like this were either unmoderated cesspools of ads, or just a lawsuit waiting to happen.

      TD is providing a service - allowing us to post. TD pays to keep this place open so you can whine about how moderation is unjust. (Or, er, against imaginary law.) And TD doesn't ban unregistered users who do nothing but complain and post lies.
      So keep complaining about how this offends you.

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

      • identicon
        cpt kangarooski, 23 Jan 2019 @ 9:50pm

        Re: Re: so fake

        I don’t think there were boards like this when the law was enacted. The relevant part of the bill was added in 1995, and the bill itself became law in early 1996.

        My recollection is that if you wanted to converse with people, you did it in chat or on Usenet. Slashdot was the first thing I remember in this format, and it didn’t take off until late 1997.

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

        • icon
          Stephen T. Stone (profile), 23 Jan 2019 @ 11:35pm

          Re: Re: Re: so fake

          I don’t think there were boards like this when the law was enacted.

          Maybe not exactly like this one, but forms of them were. Forums and messageboards were around when I was a teenager, and that was 127 years ago¹.

          ¹ - This may not be accurate.

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

        • icon
          PaulT (profile), 24 Jan 2019 @ 1:00am

          Re: Re: Re: so fake

          "My recollection"

          "first thing I remember in this format"

          Your personal recollection may not include everything, just so you know.

          Even ignoring the fact that there's little real difference between BBS/usenet and this type of forum in terms of the law (presenting the conversation in a different format does not and should not change liability), Slashdot was not the first to do such a thing and there are precursors all the way back to the 1970s.

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

          • identicon
            cpt kangarooski, 24 Jan 2019 @ 5:18am

            Re: Re: Re: Re: so fake

            I didn’t say there was a legal difference, and I do know there were numerous ways that people communicated with one another over computers going way back.

            I was saying that I did not recall any web sites from the 1995-1996 time period (when formatting pages using tables was still a new and cool idea) that worked like Techdirt does, with a story to which users could post threaded comments.

            You’re right that my personal experience isn’t exhaustive. Maybe there was one — do you know of any?

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

            • identicon
              Anonymous Coward, 24 Jan 2019 @ 8:32am

              Re: Re: Re: Re: Re: so fake

              Compuserve, AOL, etc. all had some form of ability to respond to posts and have "conversations" electronically. And, as mentioned previously, BBSs before that.

              Why you seem to find a distinction with it being a "web site" seems arbitrary and almost a non sequitur. The salient qualities are the ability to converse, not the user interface.

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

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 7:28pm

      Re: so

      Local restaurant sign says; No Shirt, No Shoes - No Service.
      Are they responsible for whatever some patron has to say simply because they sold a meal?

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

    • identicon
      Anonymous Coward, 23 Jan 2019 @ 7:50pm

      Re: so

      Yes it does. Namely the large hole in your head where your brain appears to have escaped from some time ago.

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

    • icon
      PaulT (profile), 24 Jan 2019 @ 12:55am

      Re: so

      "ya something needs to get addressed...."

      Your understanding of the words you use? Your refusal to address reality?

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

  • identicon
    Anonymous Coward, 24 Jan 2019 @ 3:03am

    There are numerous blogs where legal professionals detail the machinations of lawyers-behaving-badly--naming names, tracking and analyzing cases from first threat letters to disbarment hearings. I followed groklaw for most of its life; popehat writes with authority, style, and grace (even when its writers fail to agree with my opinions). As the most notorious offenders (like Prenda Law) spiral into the crapper, even the mainstream press has begun to notice.

    And, partly due to techdirt but also in other blogs, there is documentation of cases involving suppression-of-speech legal abuse, where lawyers make false accusations of libel (or copyright infringement, or trademark abuse) to frighten innocent victims into silence, or to coerce corporations into kicking innocent victims off their virtual-printing-press.

    I am one of those many people who'd love to read about cases involving other kinds of legal abuse; so, rather than tantalizing people with allegations of legal abuse--point us to the authoritative lawblogs that expose these cases, please!

    I am also currently in Missouri, so--you gotta show me: the names, the evidence, the details.

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


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