The Internet Rallies Against A Terrible Section 230 Ruling–Hassell v. Bird

2016 has been a tough year for Section 230 jurisprudence, and the nadir (so far) was the appellate court ruling in Hassell v. Bird. As you recall, the case involves some negative Yelp reviews about an attorney, Hassell. Hassell sued the putative author and got a default judgment, including an order requiring Yelp to remove the reviews. Yelp refused to honor the court order. The appellate court held that Yelp could not challenge the legitimacy of the trial court’s defamation “finding” but still had to remove the review despite the First Amendment and Section 230. Among other problems, the ruling provides a roadmap for plaintiffs to scrub unwanted negative reviews, and it trampled on Yelp’s rights to manage its database’s integrity.

Yelp has appealed the case to the California Supreme Court, which has the discretion to hear the case. In support of Yelp’s request, amici submitted 14 letters representing over 40 organizations and over a dozen law professors. Basically, the entire Internet community has rallied around Yelp on this matter–including key players such Google, Facebook, Wikimedia, Twitter (and many others and numerous public interest groups. The volume and gravitas of the letters, plus the obvious and stupid mistakes in the appellate court opinion, should give Yelp’s request a good chance of being granted. The California Supreme Court will announce its decision in the next week or two.
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The parties’ filings:

* Yelp’s Petition for Review. Authored by Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine. The petition presents two questions: (1) can Yelp be bound by an injunction from the lawsuit against the review author when Yelp wasn’t a party to that suit and didn’t get notice or an opportunity to be heard?, and (2) Can a court require a web publisher to remove user content despite Section 230?

* Hassell’s Response, authored by Monique Olivier and J. Erik Heath of Duckworth Peters, and Yelp’s Reply. Hassell’s response says “there are no important questions for this court to resolve” regarding due process (really?), “this case raises no First Amendment issues for review” (REALLY?), and the appeals court made a “straightforward application” of Section 230 (just no). Hassell’s response stresses its trial court default judgment “win”: “Yelp continually glosses over the dispositive fact demonstrating why review is unnecessary: this case arises in the rare context where a party has a court judgment finding the statements in issue to be defamatory.” This leads to a sanctimonious proclamation:

Decades of constitutional jurisprudence confirm that defamatory speech does not enjoy First Amendment protection. What public policies promote Yelp’s intransigence in refusing to remove adjudged defamatory content from its website, particularly where its own terms of service state it will do so? It is hard to envision how “consumers will suffer” from an inability to access defamatory content, and Yelp simply cannot articulate any public policies, let alone principles of law, that are advanced by continued distribution of adjudged defamatory statements because there is none. While Yelp wants to frame this case as implicating important constitutional protections, that framing falls apart when the actual, narrow record is considered: three adjudged defamatory postings that Yelp was ordered to remove.

Yelp’s reply points out “Yelp was not a party to the action that found the speech to be defamatory after an uncontested hearing. The lower court gave Yelp no opportunity to litigate the question of whether the speech is defamatory, and thus its resulting decision is not binding on Yelp….Under [the plaintiff’s] reasoning, any judicial finding that speech is defamatory—even one entered following questionable service (A00026) and an uncontested default hearing (A00211)—would bind third parties, although they had no ability to oppose that finding. Plaintiffs could get uncontested judgments around the country and use them to deny California citizens their own First Amendment rights––all because a court somewhere entered a default judgment finding the speech to be defamatory.”

Separately, Hassell’s response says: “Yelp fails to explain how requiring an internet service provider to comply with a specific court order about a user’s liability for defamation could chill any speech or impose any undue burden that could affect the robust expression of ideas on the internet.” Yelp replies: “Plaintiffs’ argument—that only those who create speech have a First Amendment right in that speech—is simply wrong.”

The parties also debate the possibility that plaintiffs may abuse default judgments to scrub online content. Hassell’s response says: “Nor are there any grounds to assume that countless internet users will use this case as a vehicle to procure fraudulent judgments (after prove-up or other contested hearings) simply to remove unsavory content from websites.”

I agree we don’t need to make any assumptions about the potential abuse of default judgments. We have *substantial proof* that plaintiffs are indeed abusing default judgments. A few examples:

* Techdirt: Bogus Defamation Suits From Bogus Companies Against Bogus Defendants
* Paul Levy: Georgia Dentist Mitul Patel Takes Phony Litigation Scheme to New Extremes Trying to Suppress Criticism
* Cindy Cohn/EFF: One injunction to censor them all: Doe injunctions threaten speech online

Plus, several of the amicus letters (highlighted below) mention potential or actual abuse of default judgments, including Glassdoor, Google and Xcentric/Ripoff Report. As Yelp’s reply says, “the appellate decision has found its way into threats by plaintiffs across the country (and even outside our borders), who are eager to evade Section 230 and take action directly against website providers like Yelp.”

Finally, Hassell’s response makes this intriguing assertion: “Plaintiffs’ research has revealed that only in extremely rare cases do websites or internet service providers refuse to remove content that a court had already found unlawful.” The response doesn’t provide any more detail or a citation. I emailed the plaintiff’s counsel about this assertion but didn’t get a response. I would like to see the backup because it doesn’t jive with my understanding. Because of increasing abuses of default court judgments, I think intermediaries are increasingly scrutinizing court orders more closely rather than automatically complying with them.
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The amicus letters filed with the California Supreme Court, with some selected highlights. As you’ll see, many Internet Law all-stars are now involved in this case.

* ACLU/EFF/Public Participation Project Letter. Authored by Michael Risher of ACLU.

[UPDATE:] * Airbnb Letter. Authored by Jonathan Blavin of Munger Tolles.

* Automattic/Pinterest/Reddit Letter. Authored by Jim Snell of Perkins Coie. “In instances where those who disagree with statements online attempt to silence speakers by filing lawsuits, the speakers often do not have the resources to contest defamation claims. Thus, to protect the free speech rights of users, service providers often require that procedural and substantive safeguards to free speech be met before removing content. This practice ensures that complained-of content is actually found unlawful before it is removed, and minimizes the chilling effect on speech that would occur if providers were simply to remove all the content that anyone found objectionable. It is also consistent with the exercise of service providers’ own First Amendment rights to distribute and curate content, and to cultivate the editorial policies that best serve their sites and their communities.”

* Avvo Letter. Authored by Josh King. Calling Section 230 “the law that makes the Internet go.”

* Computer & Communications Industry Association Letter. Authored by Matt Schruers and Ali Sternburg.

* Facebook/Microsoft/Twitter Letter. Authored by Mark Flanagan, Patrick Carome and Ari Holtzblatt of Wilmer Hale.

* GitHub Letter. Authored by Cathy Gellis.

* Glassdoor Letter. Authored by Brad Serwin.

In the past year alone, Glassdoor has received approximately 260 legal demand letters to remove reviews and/or turn over our users’ identities. During this time, our users have been the subject of nearly 50 court cases brought by employers across 14 states. As of June (i.e., when the opinion in Hassell was issued), there were some 14 active legal cases directed at approximately 83 Glassdoor anonymous users in six states. In almost all of these cases, the reviews in question reflect opinions of current or former employees.

Since Hassell was published, we have begun receiving demand letters citing the opinion as grounds for demanding that Glassdoor remove content and reviews deemed objectionable. We are deeply concerned that unscrupulous employers unhappy with honest, negative employee opinions about them in Glassdoor reviews will take guidance from Hassell and seek to gain default judgments and then use the threat of contempt proceedings to force us to remove content in violation of First Amendment rights and Section 230 immunity. Indeed, we observe with deep apprehension the recent appearance of online legal commentaries pointing to Hassell as a road map for using default judgments as a means of attacking and forcing the removal of online reviews not to one’s liking. See “How to Take Down Bad Reviews On Yelp and Win a $500,000 Judgment- Hint: Don’t Sue Yelp.”

* Google Letter. Authored by David Kramer, Brian Witten and Jason Mollick of Wilson Sonsini. “Google routinely receives ex parte court orders like the one issued in this case….Google challenges these orders (which often arise from default judgments) by invoking Section 230 and bedrock principles of due process….The decision is already been used to try to expand the law in dangerous ways. For example, plaintiffs in a pending case in Canada involving Google have cited the decision to try to justify an unprecedented blocking order that would require Google to remove certain search results websites across the entire world.”

* Internet Law Scholars Letter. Authored by Prof. Eugene Volokh of UCLA. I joined this letter.

* Public Citizen Letter. Authored by Paul Levy.

* R Street Letter. Authored by Steven Greenhut and Cameron Smith.

* Reporters Committee for Freedom of the Press Letter, on behalf of itself and 30 other organizations. Authored by Katie Townsend, Bruce Brown, Gregg Leslie and Michael Lambert. Supporting organizations include Los Angeles Times Communications LLC, The New York Times Company, American Society of News Editors, AOL Inc. – The Huffington Post, Association of Alternative Newsmedia, Association of American Publishers, Inc., BuzzFeed, California Newspaper Publishers Association, Californians Aware, The Center for Investigative Reporting, First Amendment Coalition, First Look Media Works, Inc., Fox News Network LLC, Freedom of the Press Foundation, Gannett Co., Inc., International Documentary Assn., Investigative Reporting Workshop at American University, The McClatchy Company, The Media Institute, Media Law Resource Center, MPA – The Association of Magazine Media, National Press Photographers Association, The News Guild – CWA, Newspaper Association of America, Radio Television Digital News Association, and Tully Center for Free Speech.

* Wikimedia Letter. Authored by Michelle Paulson.

* Xcentric Ventures (Ripoff Report) Letter. Authored by David Gingras. “Ripoff Report does not remove reports in response to court orders/injunctions. The goal of this policy is simple—by refusing to remove reports, Ripoff Report creates a permanent record of disputes so the public can view a complete history of complaints, including information showing how the dispute was resolved. This policy furthers the important public purpose of giving consumers the ‘whole picture’ including both truthful complaints and discredited ones.”

The Ripoff Report letter also contains a provocative argument that the Yelp posts referenced in Hassell’s complaint were expressly or implicitly incorporated into her complaint, which became a litigation record, and there is a privilege allowing litigation records to be republished freely. I doubt courts will interpret the law to achieve that outcome because it would mean every plaintiff effectively must acquiesce to the permanent unrestricted republication of the materials they are seeking to redress.

In a footnote, the letter adds “in the short time since Hassell was decided, Xcentric (which is based in Arizona) has received numerous demands from California attorneys citing Hassell and demanding removal of content on that basis.”

Case library:

* Hassell’s answering brief. Yelp’s reply brief.
* Yelp’s Opening Brief to the California Supreme Court and Request for Judicial Notice
*Yelp’s Petition for Review, Hassell’s Response, and Yelp’s Reply. Amicus letters from ACLU/EFF/Public Participation Project, Automattic/Pinterest/Reddit, Avvo, Computer & Communications Industry Association, Facebook/Microsoft/Twitter, GitHub, Glassdoor, Google, Internet Law Scholars, Public Citizen, R Street, Reporters Committee for Freedom of the Press (and 30 other organizations), Wikimedia, and Xcentric Ventures (Ripoff Report).
* Appellate Court Opinion. My blog post about it.
* Yelp’s Appeals Court Brief. Hassell’s Response Brief. Yelp’s Reply.