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

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 crea