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Another Day, Another Horrible Ruling That Undermines The First Amendment And Section 230

Bad break for Yelp.

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ConstitutionNot sure what’s going on in California, but it’s been suddenly issuing a bunch of really bad rulings concerning Section 230 of the CDA (the most important law on the internet). As we’ve explained many times, Section 230 says that online services cannot be held liable for actions of their users (and also, importantly, that if those platforms do decide to moderate content in any way, that doesn’t impact their protections from liability). This is massively important for protecting free speech online, because it means that platforms don’t have to proactively monitor user behavior out of fear of legal liability and they don’t feel the need to over-aggressively take down content to avoid being sued.

Over and over again the courts have interpreted Section 230 quite broadly to protect internet platforms. This has been good for free speech and good for the internet overall (and, yes, good for online companies, which is why some are so against Section 230). But, as we’ve been noting, Section 230 has been under attack in the past year or so, and all of a sudden courts seem to be chipping away at the protections of Section 230. Last week we wrote about a bad appeals court ruling that said Section 230 did not protect a website from being sued over failing to warn users of potential harm that could come from some users on the site. Then, earlier this week, we wrote about an even worse ruling in San Mateo Superior Court (just a block away from my office…) exempting publicity rights from Section 230.

And now, Eric Goldman points our attention to an even worse ruling coming out of California state’s appeals court for the First Appellate district. In this ruling, the court determines that Yelp can be forced to delete reviews that the court found defamatory (though entirely based on a default judgment, where the defendant didn’t show up in court). In previous cases most courts have found that even if content is found to be defamatory, a third party website cannot be forced to delete it, because of the pesky First Amendment.

In this case, the court doesn’t care. The background of the case involves a lawyer, Dawn Hassell, who sued a former client, Ava Bird, who allegedly posted negative reviews of Hassell’s work. Hassell sued, Bird ignored, and the court ruled for Hassell as a default judgment. As part of this it also ordered Yelp to remove the reviews. Yelp protested. The court then twists itself into all kinds of questionable knots to ignore both Section 230 and the First Amendment. The court first questions whether or not Yelp can even make the First Amendment argument, seeing as it’s also claiming that it’s not the author of the content in question. Of course, that totally misses the point: it’s not necessarily just about the content in the review, but also Yelp’s First Amendment rights in presenting content on its website.

In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.

But, uh, the administrator of a forum still has separate First Amendment rights in determining how they present things in their forum. That’s kind of how it works. As Eric Goldman notes:

What the hell is an “administrator of the forum,” and what legal consequences attach to that status? We’re not talking about the free speech rights of a janitor with a mop. This case involves a curator of speech–and even if the curator is just “administrating,” telling a curator how to administrate raises significant speech interests that deserve more respect than this court gave it.

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The court then suggests that the First Amendment doesn’t apply because Yelp has no right to question a court.

To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgmentwhich establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.

Yikes! That of course, ignores the actual issue at play — especially the fact that the finding of defamation was on default, rather than through an actual adversarial process.

But the really scary part is how the court gets around Section 230. Goldman refers to it as “jujitsu” and that’s a pretty apt analogy:

Yelp argues the authority summarized above establishes that the removal order is void. We disagree. The removal order does not violate section 230 because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.

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Okay… but then it’s ordering Yelp to remove the reviews, despite being a non-party. And if Yelp does not remove the reviews, then it’s in contempt of court, which means that yes, the court is absolutely applying liability. But, no, says the court, because [reasons].

If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court.

Got that. It’s not liability because it’s “a different type of liability.” WHAT?!? Where in the law does it say that “a different type of liability” (with no clear definition) is allowed? The court clarifies by muddying the waters some more:

In our opinion, sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.

This makes no sense at all.

Separately, the court keeps relying on the fact that Yelp itself was not sued by Hassell, and that all other cases involved service providers that were parties to the case. But that leads to ridiculous results:

As we have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird’s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site.

But under that standard, the court has just offered up a huge hole to avoid Section 230: just don’t name the service provider, and then you can force the service provider to take down the content. If that stands, very bad things will happen as a result. As Goldman points out in response to this, the court is simply wrong:

So the court is flat-out wrong. While I believe it’s correct that none of the cases were posed as contempt proceedings, the actions in both Blockowicz and Giordano also came after lower court findings of defamation. And in any case, WTF? Is the court saying that Section 230 preempts a direct lawsuit against a UGC site seeking injunctive relief, but it’s totally OK to reach the same result by not naming the UGC site in the lawsuit and then enforcing an injunction via contempt proceedings?

Goldman goes on to note how this ruling will create all kinds of mischief opportunities:

Step 1: sue the content poster for defamation in California state court. Do not sue the UGC site because (a) they are immune under Section 230, or (b) they might decide to fight substantively.

Step 2: take advantage of loose service of process rules and or otherwise hope the poster doesn’t appear in the case. For example, non-California residents aren’t likely to fight in a California court even if they get notice.

Step 3: get a default judgment finding defamation. If the user does make an appearance, a stipulated judgment with the user could reach the same result.

Step 4: seek an injunction requiring removal by the UGC site. Once the judge accepts the service of process and concludes the defendant didn’t show, the judge will probably do just about whatever the plaintiff asks. With the default judgment, the plaintiff can then use the coercive effect of contempt to force the UGC site to remove the content so long as the UGC site is under California’s jurisdictional reach–which most UGC sites are.

Voila! A right to be forgotten in the US, despite the First Amendment and Section 230.

As an added bonus, in the same lawsuit, the plaintiff can target multiple items of unwanted content by claiming it’s also written by the defendant or someone working in concert with the defendant. For example, I don’t believe it was ever confirmed that Birdzeye and JD are the same person, but consistent with the less-stringent approach deployed by judges when faced with default proceedings, the court treats both reviews as if the author(s) of the opinions was in court. If, in fact, JD is a different person, then Hassell successfully scrubbed JD’s content without ever suing the actual author or serving proper notice on the author. As you can see, there’s a great collateral damage potential here.

Goldman also warns that this ruling may not be easy to overturn. Yelp can (and should) appeal to the state Supreme Court, but there’s no guarantee it will take the case. There are legislative solutions, but those are unlikely as well. But for the time being, this ruling is a ticking time bomb. It can and will be abused. We see so many attempts to censor content by abusing copyright law, and now California has given people a playbook for how to abuse defamation law to do the same thing.

Another Day, Another Horrible Ruling That Undermines The First Amendment And Section 230

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