[Eugene Volokh] Court orders Yelp to take down defendant’s post, though Yelp wasn’t even a party to the lawsuit

Here’s a different twist on how legal procedures are used in online libel claims: California lawyer Dawn Hassell claimed that Ava Bird defamed her in a Yelp review. Hassell sued Bird; Bird, unsurprisingly, failed to appear in the case, since that would have required a lot of money to hire a lawyer, or a lot of time and legal knowledge for Bird to defend the case herself. Hassell thus got a default judgment, including an injunction ordering the removal of the libelous material. (Such permanent injunctions against speech that has been adjudicated as defamatory are generally available under California law, see Balboa Island Village Inn, Inc. v. Lemen (Cal. 2007).)

Now many site operators, including Yelp, will often take down posts when they see such an injunction against a user. (Yelp’s reply brief in the case, for instance, says that “it is Yelp’s general practice to remove content adjudicated defamatory against third parties — assuming any appeals have been exhausted and a plausible showing of defamation has been made — [though] this rarely occurs, as users have the ability to remove their own reviews under such circumstances.”) I think such operators’ view is generally that they don’t want to distribute libel, and if a statement was found libelous, then, sure, why not take it down, absent some reason to doubt the soundness of the decision?

But here Hassell got an injunction ordering Yelp to take down the post — even though Yelp wasn’t a party to the earlier lawsuit, wasn’t served with the complaint, and thus had no opportunity to challenge the injunction. It’s precisely as if someone got a default judgment against one of our commenters, on the theory that the comment was defamatory or invaded privacy or some such, and the judgment ordered me to take down the comment. That can’t be right, I think: I have my own First Amendment right to distribute user comments (indeed, that is Yelp’s primary mission, and one aspect of my mission), and I should have my own opportunity to argue that a particular comment fell within one of the First Amendment exceptions.

In any event, Yelp has asked the California Supreme Court to agree to hear the case, and I filed a short letter brief supporting that petition, through the Scott & Cyan Banister First Amendment Clinic, on behalf of David Ardia (UNC), Jane Bambauer (Arizona), Dan Burk (UC Irvine), A. Michael Froomkin (Miami), Shubha Ghosh (Syracuse), Eric Goldman (Santa Clara), James Grimmelmann (Cornell), Edward Lee (IIT), Lyrissa Lidsky (Florida), Lisa Ramsey (University of San Diego Law School), Jorge Roig (Charleston), David Sorkin (John Marshall), and myself:

Based on our experience as law professors who are knowledgeable about the application of the First Amendment to Internet law, we urge you (pursuant to Rule 8.500(g)) to accept the Petition for Review in this case.

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The Court of Appeal’s decision jeopardizes a vast range of online speech. Many speakers are in precisely the same position as Yelp, because they exercise their own First Amendment rights by displaying others’ work for the world to see. Newspapers encourage user comments. Group weblogs let many bloggers submit their contributions. Chatroom operators solicit user posts.

Though these speakers may not be treated as “publishers” of the user contributions for purposes of civil liability (given 47 U.S.C. § 230), their distribution of the aggregate of user posts is protected by the First Amendment. Like the parade organizers in Hurley v. Irish American Gay, Lesbian, & Bisexual Group, 515 U.S. 557 (1995), the speakers create speech by inviting others to contribute to the speech—and have their own First Amendment rights to distribute this aggregate speech.

Yet the 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.

The U.S. Supreme Court has already recognized the danger posed by ex parte restrictions on speech. In Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175 (1968), the Court held that such restrictions were almost always impermissible, except perhaps in rare cases of looming violence. Even “temporary restraining orders of short duration,” the Court stressed, are unconstitutional if they operate “within the area