by Paul Alan Levy
In Hassell v. Bird, the California Supreme Court held this morning, by a narrow margin of four votes to three, that section 230 of the Communications Decency Act protects Yelp against an injunction compelling it to comply with an injunction that had previously been issued against a Yelp user who had been found (by a default judgment) to have defamed a lawyer with whose work on her behalf the Yelp user had denounced in an online review.
The plurality opinion by Chief Justice Cantil-Sakauye (which attracted two other votes), as well as a concurring opinion by Justice Kruger, holds that on the facts of this case, the injunction effectively treats Yelp as the publisher of a review authored by another by subjecting it to injunctive relief based on a decision that Yelp had previously made to allow Bird to post her review on Yelp’s local-business-review platform, in violation of section 230 of the Communications Decency Act. Vigorous dissenting opinions complaining that the attorney-plaintiff was unfairly being deprived of an effective remedy against defamation were filed by Justice Liu, who would have affirmed outright, and by Justice Cuéllar (joined by a second member of the panel, a Court of Appeal Justice sitting by designation), who would have vacated the Court of Appeal’s ruling and remanded to allow the trial court to make findings that could have better supported an award of injunctive relief against Yelp,
The case arose out of a Yelp review posted by Ava Bird complaining about alleged inadequacies in the legal services provided by Bay Area lawyer Dawn Hassell. Hassell sued Bird for defamation, and when personal service could not be obtained, Hassell obtained court approval for substitute service and, eventually, secured a default judgment holding Bird liable for defamation and ordering her to remove her review. Hassell deliberately did not join Yelp as a defendant in the defamation suit, recognizing that section 230 made Yelp immune from liability and indeed from suit for the defamation, but at Hassell’s behest the trial court ordered Yelp to comply with the injunction against Bird. Yelp objected to being enjoined, but the trial court held that, once an injunction had been issued against Bird, the platform on which she had posted her review could be ordered to cooperate in the enforcement of that order by taking down the review; the California Court of Appeal affirmed. Yelp’s petition for review was granted, and a plethora of amicus briefs, including one from Public Citizen, and one from Ava Bird herself, supported its appeal.
Our brief argued that the injunction was barred both by section 230 and by Yelp’s First Amendment right to decide whether to host the speech; we also explained the many practical concerns implicated by injunctions against the hosting of reviews by third parties, even assuming that a review had been found defamatory, and the harms that would be caused to the system of online free speech by holding that only damages claims are barred by section 230.
The plurality opinion squarely holds that section 230 forbade the lower courts from extending the default injunction against Bird to Yelp itself, treating Hassell’s litigation tactics as an impermissible end run around section 230's grant of immunity to Internet platforms that allow consumers and others to post critical comment online. In reversing on this ground, the majority cited both practical concerns and burdens implicated by injunction-enforcement proceedings (pages 27 to 28 of its opinion), and Congress’ deliberate decision in the past year alone to maintain section 230's broad grant of immunity while carving out a small exception in cases of child sex trafficking (page 31).
Sensitive to the dissenters’ concerns about the denial of an effective remedy to the defamed lawyer, the plurality opinion emphasized that, because its ruling left standing the injunction issued against Bird, and because Bird had appeared at the Supreme Court level by filing her own amicus brief, Hassell could obtain contempt remedies against Bird should Bird refuse to take advantage of the fact that Yelp allows its users to edit or remove their own reviews. Although Hassell has reportedly stated publicly that Bird is judgment proof (citing this as a justification for injunctive relief), the plurality pointed out that once Bird is held in contempt, she can be subjected to coercive remedies. Indeed, one possible remedy might be to allow Hassell to execute on Bird’s Yelp account, enabling her to step into Bird’s own shoes in managing her Yelp account. (We recently opposed the implementation of similar relief through execution on the user's copyright in his Ripoff Report review). That said, one of the oddities of this case is that, to date, Hassell has taken no steps to enforce her injunction against Bird.
Justice Kruger’s concurring opinion is somewhat more nuanced about section 230, but it begins with a state law issue which, she said, should have been addressed first, making it unnecessary to decide how to apply section 230. The injunction against Bird, she would have held, cannot be enforced against Yelp, which was not acting in concert with or on behalf of Bird in violating the injunction; rather, Yelp’s conduct was entirely independent of Bird. But, she would have held, it should remain open to Hassell to advance arguments about whether Yelp has some legal obligation to remove Bird’s reviews from its web site, a subject on which she expressed no opinion; rather, she said, judgment should be reserved pending the making of such arguments, in a proceeding where Yelp would have to be given an opportunity to respond.
Turning to the section 230 issue, Justice Kruger addressed the issue only because the plurality opinion had done so. In that regard, she said that section 230 bars extension of the injunction to Yelp “solely because of its past decision to allow Bird to post her reviews.” she refused, however, to express any judgment about how section 230 might apply in the event a take-down oder were based on different justifications, and indicated that, so far as she could see, the plurality opinion left such possible future orders up in the air as well. “at least when it comes to addressing new questions about the scope of section 230 immunity, we should proceed cautiously, lest we inadvertently forbid an even broader swath of legal action than Congress could reasonably have intended.”
There were two separate dissents. Justice Liu was prepared to affirm outright, holding that it was sufficient, as a matter of state law, that Bird's review had been published using Yelp’s platform, making it a third party whose services were being used by Bird to violate the injunction against her, and that the extension of the injunction to Yelp did not treat it as publisher or speaker of Bird’s speech in violation of section 230. Curiously, however, although Justice Liu was prepare to affirm the issuance of an injunction against Yelp, he was willing to postpone consideration of the question of “[w]hether Yelp could claim section 230 immunity in a contempt proceeding on the ground that its continued refusal to remove Bird’s reviews is a matter of editorial judgment, notwithstanding a state court judgment finding the reviews defamatory." (page 9)
The final opinion in the case, although labeled a dissent, did not argue for outright affirmance; rather, Justice Cuéllar (and one concurring Justice) contended that the judgment of the Court of Appeal upholding the injunction should be vacated, and indeed that the trial court injunction against Yelp should itself be vacated, and the case remanded to the Superior Court for further proceedings to decide whether extending the injunction to Yelp was justified. Justice Cuéllar stoutly rejected Yelp’s argument that section 230 protects it against being ordered to comply with court orders enjoining its users to remove allegedly content adjudicated defamatory, on the ground that only such relief gives the successful defamation plaintiff an effective remedy, and held as well that Yelp had been given an adequate chance to respond to Hassell’s efforts to enjoin it to meet the obligations for due process. He was also ready to hold that a nonparty internet platform could, in appropriate cases, be subjected to injunctive relief on the theory that it “aided, abetted, acted in collusion with or in assertion of the enjoined defendant’s rights, or otherwise acted in concert with or support of the enjoined defendant to violate the injunction.” (opinion at 32).
Despite his resounding policy and statutory rulings not only rejecting but denouncing Yelp’s arguments, Justice Cuéllar shied away from affirming outright because, he said, the Court of Appeal declined to address the trial court’s determination that Yelp had aided and abetted Bird’s violation of the injunction. Moreover, Justice Cuéllar found the trial court’s explanation for its “aiding and abetting” ruling insufficient. However, he discussed “a range of evidence and interactions [that] could support such a finding.” (pages 34-39), and broadly indicated that a properly articulated ruling would be upheld on appeal.
Although Justice Cuéllar somewhat overstated that matter in saying that that the issue in this case is one of first impression in the California Supreme Court “or any other,” the cases have been few and far between so far, and each of the cases has come out the same way: the Blockowicz decision in the Seventh Circuit and Giordano v. Romeo in Florida both held, as did the California Supreme Court in Hassell, that injunctions against defamatory users could not be extended to the hosting platforms. Thus, United States Supreme Court review is highly unlikely at this juncture. But coupled with the other dissenting opinion as well as the equivocal nature of Justice Kruger’s concurrence, as well as Dawn Hassell’s evident commitment to obtaining injunctive relief, it seems apparent that the proceedings in this case are not close to being concluded.