Dozen Amicus Briefs Oppose the Worst Section 230 Ruling of 2016 (and One Supports It)–Hassell v. Bird

You surely recall the Hassell v. Bird ruling from last year. A lawyer was unhappy with a Yelp review about her. The lawyer sued the putative author (with dubious service of process), got a default ruling that the review was defamatory along with a removal injunction, and then delivered the injunction to Yelp and demanded removal. Yelp refused to remove the review. In a shocking turn of events, the California appeals court held that Yelp was required to remove the review. That ruling accomplished a rare trifecta. It screwed up not one, not two, but THREE cherished American legal principles: the First Amendment, Due Process, and Section 230. If it survives, the consequences of the appellate court’s ruling could be severe: it would create a giant workaround to Section 230, and it would create a synthetic right to be forgotten in the US. Fortunately, the California Supreme Court granted a petition to review. This blog post will summarize what’s happened since then.

Filings by the Litigants

In November 2016, Yelp filed its Opening Brief. Yelp focused on the due process and Section 230 issues. It framed the issues:

This case is only one of many different attempts to misuse the court system in the hope of stifling speech on the Internet. The court of appeal’s decision threatens to undermine the validity and efficacy of the information available to consumers, and online speech generally.

Yelp is represented by Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, plus Yelp in-house counsel Aaron Schur.

In January, Hassell filed her Answering Brief. The brief is fundamentally premised on the incontestibility of the lower court’s default judgment that Bird’s post was defamatory (remember, the court process that Yelp didn’t and couldn’t participate in). For example, the brief says:

Yelp invokes the First Amendment, the Due Process clause, and the federal Communications Decency Act. None of these law allows Yelp to ignore a court order preventing the republication of libel….Yelp has no First Amendment right to distribute defamatory speech any more than the speaker has to create the speech in the first instance. Thus, to the extent that Yelp believes that it has a right to perpetuate defamation because it has a separate First Amendment right to distribute speech, it is entirely mistaken. There is no constitutional purpose in protecting the publication of proven lies….The CDA was never intended to permit freewheeling defamation on the internet. Simply put, the CDA does not grant Yelp license to republish judicially determined libel in perpetuity

The Section 230 “analysis” is as painful and garbled as you’d expect. Here’s a sample:

Here, the removal order simply prohibits Yelp from continuing to be the conduit through which Bird violates her injunction – an uncontroversial way for a court to enforce its orders….In the current case, Yelp is neither ‘cast in the same position as the party who originally posted the offensive messages,’ nor sought to be held accountable for its own editorial decisions of “whether to publish, withdraw, postpone or alter [such] content.’… if a court must reach out to Yelp for enforcement, then it must respond to that order just as any party would be required to do – publisher or not.

Hassell is represented by Monique Olivier and Erik Heath of Duckworth Peters.

Yelp’s Reply Brief from March:

Yelp is not challenging the ruling against Bird that the speech is defamatory, nor must it to assert its rights as a publisher. Yelp is advocating its own First Amendment rights, independent of any judgment entered against Bird in a proceeding to which Yelp was not a party.

From a footnote:

while 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—this almost never occurs, as Yelp users have the ability to remove their reviews at any time

Amicus Briefs

In the last week, 13 amicus briefs were filed. 12 supported Yelp. 1 supported Hassell. As expected, many of the briefs overlap with each other and with the litigants’ briefs. For example, several of the briefs flag all three primary issues in the case (First Amendment, Due Process, Section 230). I’ll list all of the briefs and highlight some of the more noteworthy aspects of certain briefs:

* Amicus Brief: ACLU-NC, ACLU of San Diego/Imperial Counties, ACLU-SC, Avvo, California Anti-SLAPP Project, EFF, First Amendment Coalition and Public Participation Project. Disclosure note: I am a board member of the PPP. By Jeremy Rosen, Scott Dixler and Matthew Samet at Horwitz & Levy.

* Amicus Brief: Airbnb, Automattic, Craigslist, Facebook, IAC, Reddit, Snap, Pinterest, Thumbtack, Twitter and Yahoo. By Pat Carome, Mark Flanagan and Ari Holtzblatt of Wilmer Hale. Among other things, the brief encourages the court to address the Section 230 questions explicitly: “Merely reversing the Court of Appeal’s due process holding, while upholding (or even not addressing) the Court of Appeal’s Section 230 ruling, could unleash precisely the flood of litigation Section 230 is intended to avoid. Each time a default judgment is entered against a user of an interactive computer service provider’s services, the provider would face a Hobson’s choice: either remove user-generated content, even prior to the crucible of adversarial litigation, or “face death by ten thousand duck-bites, fighting off claims” in scores upon scores of due process hearings.”

* Amicus Brief: Ava Bird. By Ken White (the well-known “Popehat”) and Evelina Gentry of Brown White & Osborn. This is an unusual brief. Ava Bird did not appear in the underlying lawsuit, but now she filed an amicus brief in the subsequent proceedings involving non-party Yelp. I’m sure something like this has happened before, but I can’t recall it. Ms. Bird explains that she never was served with the lawsuit and she did not write the review by “J.D.” that the court also required to be removed. She also explains how Yelp, as an independent online publisher, advances her free speech interests:

Yelp.com’s position also protects consumers like Ms. Bird. The free speech rights of consumers like Ms. Bird depend upon the rights of online platforms like Yelp.com. Yelp.com’s right to fight injunctions against it – and Section 230’s prohibition of injunctions like the one below – serve to protect consumers’ ability to publish their views free from censorship by ruinously expensive litigation. The rule below, which allows litigants like Ms. Hassell to use default judgments to silence online speech without any input by service providers, encourages vexatious and censorious litigation, and permits abuse of a strained legal system.

The brief also explains how a Yelp author’s lack of money can lead to injustice:

under the rule articulated by the courts below, every aggrieved target of online criticism has a strong incentive to pay a lawyer to sue. They can anticipate that many – if not most – consumers who use sites like Yelp.com cannot afford the cost of defending a defamation case. They therefore have an incentive to sue in order to obtain a default and silence speech without any meaningful evaluation of whether the speech is actually defamatory. They have an incentive to employ sloppy or dishonest methods of service to promote a default judgment, since a default judgment is effective in silencing speech. They have an incentive to speculate about the identity of anonymous commenters and seek defaults based on that speculation, since doing so will be effective in depriving those commenters of notice or an opportunity to be heard. In short, the ruling below is a roadmap for vexatious litigation and abuse.

Now that she has appeared in the case, it makes me wonder if Ms. Bird will initiate further proceedings to redress the underlying case against her. I’m not sure what procedural options are remaining to her.

* Amicus Brief: Change.org, Engine, GitHub, Medium, Patreon, SiteJabber and Wikimedia. By Jason Schultz of the NYU Technology Law & Policy Clinic.

While a legal rule that diminishes the established protections of § 230 in this way threatens all Internet and technology organizations, its effects would fall particularly hard on SCPs [“small collaborative platforms”]. Modern technology enables even platforms with little human or financial capital to reach thousands if not millions of people. This asymmetry means that these companies and organizations especially cannot afford to be embroiled in the conflicts that will inevitably arise among innumerable third parties. Without § 230 immunity from court orders arising out of user content, if faced with a binding removal order after a default judgment against a third party, SCPs would face an impossible choice.

* Amicus Brief: Chemerinsky et al (painfully, his name is misspelled in the brief caption). By Douglas Mirell, Charles Harder, and Dilan Esper of Harder, Mirell and Abrams. Charles Harder is well-known for recent defamation lawsuits, including the lawsuits funded by Peter Thiel that shut down Gawker and the pending suit against Techdirt in the “who invented email?” lawsuit. Erwin Chemerinsky is dean of UC Irvine Law School and a well-known First Amendment scholar and public commentator. It’s hard for me to wrap my head around the idea that a First Amendment scholar thinks the appellate court ruling was appropriate.

This is the only brief in favor of Hassell. I was not impressed by it. The brief says:

– “What Yelp has not done is make any showing that any of the defamatory statements here were protected by the First Amendment.” DUH. Yelp isn’t a party to the case, so it’s never had the chance to adjudicate that question. THAT’S THE PROBLEM.

– “In the event that a court erroneously enjoins protected speech and extends such a ruling to website operators such as Yelp, the website operator may have legal standing to collaterally attack the judgment and assert its own First Amendment rights.” “MAY”? That’s comforting. And how can the online publisher make this collateral attack? By committing contempt and then contesting the order’s legitimacy in a contempt proceeding? See the Change.org et al brief for the perspectives of publishers who can’t afford to run to court to protect their users’ speech.

– “Under the rule of law urged by Yelp, the big winners will be online tortfeasors. Assuming they can be located and subjected to the court’s jurisdiction, such tortfeasors will perhaps owe a monetary judgment that they may be unable to pay – presuming it even made economic sense for the victim to have sued them in the first instance. But their statements, even if entirely constitutionally unprotected, will remain on the Internet, injuring victims in perpetuity (or at least so long as publishers such as Yelp decide to make them available).” It doesn’t sound like Ms. Bird views herself as a “big winner,” especially now that she has a half-million judgment hanging over her head. And given that Ms. Bird has the power to remove her review from Yelp, why does the brief assume that tortious content will remain online? Hassell never pursued enforcement of the injunction against Bird to get her to remove it. Furthermore, many publishers will *voluntarily” remove defamatory content with or without a court order. So the passage’s factual assumptions are highly questionable.

– “The premise of Section 230 is that providers of certain sorts of interactive services on the Internet should not face lawsuits and the threat of monetary damages merely for acting as a conduit for the speech of others.” Please show me where the phrase “mere conduit” appears in the statute or in the many appellate rulings upholding Section 230’s applicability to defendants. And the language carefully excludes Section 230’s applicability to requests for injunctive relief, though many cases have found it applies there too.

– “Yelp has not been ordered to pay damages, nor has it been required to defend a lawsuit. Respondents have respected Yelp’s claimed statutory immunity….Yelp has not been held liable for anything, and has not been forced to defend a lawsuit.” I’m feeling gaslighted.

– “There will be no chilling effect on Yelp’s expression, as Yelp will not be required to defend future lawsuits and need not concern itself with the threat of liability or self-censorship as a result of such a threat. All that is required of Yelp is that it obey a take-down injunction when one is issued by a California court.” More gaslighting. A court-mandated removal of content, under the threat of contempt proceedings, isn’t a “chilling effect on Yelp’s expression”?

– “The rules governing default judgments have been designed to fully protect the rights of defendants to due process, and the rights of plaintiffs to relief.” See the Volokh brief for contrary evidence.

– “If Yelp’s argument were to prevail, the Internet would continue to descend into an uncontrolled and uncontrollable wasteland of defamatory content, threats, harassment, and non-consensually posted private sex videos.” Is that how you perceive the Internet? I thought we got past the “cyber-cesspool” laments about the Internet a decade ago. The Internet has its problems, as do all complex human enterprises. But “wasteland”? Really?

– “Yelp offers no route for any victim to take to obtain the removal of tortious content from its site.” This conflicts with Yelp’s brief, as well as the users’ power to remove their own reviews.

We’ve already seen how litigious defamation plaintiffs can drive legitimate content off the Internet. It’s disconcerting to see that the Harder law firm liked the appellate court ruling. What exactly are defamation lawyers planning to do if they can revive that rule?

* Amicus Brief: Eugene Volokh.

This is an important brief. If you haven’t been closely tracking Eugene’s work in this area, you should read the whole thing. It demonstrates why judgments in default proceedings are, in his words, “far too vulnerable to manipulation to be trustworthy.”

It starts out: “Injunctions aimed at removing or deindexing allegedly libelous material are a big practice area, and big business….But this process appears to be rife with fraud and with other behavior that renders it inaccurate. And this is unsurprising, precisely because many such injunctions are aimed at getting action from third parties (such as Yelp or Google) that did not appear in the original proceedings. The adversarial process usually offers some assurance of accurate factfinding, because the defendant has the opportunity and incentive to point out the plaintiff’s misstatements. But many of the injunctions in such cases are gotten through default judgments or stipulations, with no meaningful adversarial participation.”

The brief documents, in painstaking detail, 7 pathologies with default injunctions (the 7th is redacted):

(1) injunctions gotten in lawsuits brought against apparently fake defendants;
(2) injunctions gotten using fake notarizations;
(3) injunctions gotten in lawsuits brought against defendants who very likely did not author the supposedly defamatory material;
(4) injunctions that seek the deindexing of official and clearly nonlibelous government documents—with no notice to the documents’ authors—often listed in the middle of a long list of website addresses submitted to a judge as part of a default judgment;
(5) injunctions that seek the deindexing of otherwise apparently truthful mainstream articles from websites like CNN, based on defamatory comments that the plaintiffs or the plaintiffs’ agents may have posted themselves, precisely to have an excuse to deindex the article;
(6) injunctions that seek the deindexing of an entire mainstream media article based on a source’s supposedly recanting a quote, with no real determination of whether the source was lying earlier, when the article was written, or is lying now, prompted by the lawsuit

As the brief says:

Online service providers, such as Yelp and Google, that get these orders are the first line of defense against such behavior, so long as they have no legal obligation to comply with such orders issued against third parties. The service providers can exercise their discretion to conclude that some orders appear untrustworthy. They can demand more documentation from people who submit the orders. And if their concerns about their orders are not adequately resolved, they can decline to enforce the orders.

But under Plaintiffs’ view, the service providers would be legally required to deindex or remove any material that has been ruled defamatory, even when they have had no chance to participate in the defamation lawsuit….Google would only be able to protect online speech against such deindexing by formally intervening in the suspicious lawsuit, and trying to reopen the judgment. But this would be practically infeasible. It would at least require spending large sums of money to hire local counsel across the country to litigate such matters. And such reopening might be procedurally unavailable in many places.

The brief summarizes:

This brief has argued that Internet company discretion is the best (albeit imperfect) way of dealing with the epidemic of questionable court orders: Such discretion would leave companies free to investigate such submitted orders, including by requiring submitters to provide more information. Indeed, taking away this discretion would only worsen the epidemic, by giving unscrupulous reputation management companies an especially strong incentive to do whatever it takes to get such an order.

* Amicus Brief: Glassdoor and TripAdvisor. By Ian Ballon and Lori Chang of Greenberg Traurig.

* Amicus Brief: Google. By David Kramer, Shelby Pasarell Tsai, Brian Willen and Jason Mollick of Wilson Sonsini. “This Court should…make clear that online intermediaries cannot be enjoined as nonparties merely for hosting, publishing, or linking to third-party content and, similarly, that they do not act “in concert” with their users simply by declining to remove material that a court has found to be defamatory or otherwise unlawful.”

Also:

On a regular basis, Google is presented with injunctions and other court orders like the one issued against Yelp here. Those orders, which come from state and federal courts around the country, as well as from foreign jurisdictions, typically demand that certain user-generated material hosted on Google’s services or accessible through its search engine should be removed. In many cases, these orders identify Google by name or purport to bind it directly, even though Google is not a party in the underlying case and never received prior notice of the proceedings or an opportunity to be heard before the injunction issued. When that happens, Google typically has no insight into the underlying dispute or the means by which the order was procured, though it is not uncommon for Google to receive orders that seem aimed at quashing public commentary or debate….

Because Google is seldom given a chance to object to these orders before they issue, courts may not be appraised of the legal limitations on enjoining nonparties, and they will sometimes endorse the plaintiff’s ex parte demand to include Google and other nonparty intermediaries within the scope of an injunction. Once that happens, the order is then sent to Google as a fait accompli, with a threat of contempt if it fails to remove the content at issue.

Such orders come from foreign courts as well. In some instances, the orders are remarkably broad. Foreign courts have, for example, tried to order Google to remove information from its search results on a global basis, so that the ruling of a single court in one nation can operate to censor what people all over the world can see or find….

Google does, however, have a set of internal policies whereby it may remove material that a court has determined to be unlawful if the order does not purport to bind Google directly. These policies provide a robust mechanism for people harmed by material that may appear on or through Google’s services. But U.S. law has always protected Google from being required to comply with orders in cases where it is not a party and is not taking active steps to aid and abet an actual party’s violation of the injunction. This limitation on the scope of nonparty court orders allows Google to exercise discretion in deciding whether to remove speech from its services, just as Congress intended in Section 230.

* Amicus Brief: Internet Association & Consumer Technology Association. By Andrew Bridges, Tyler Newby, Guinevere Jobson, and Armen Nercessian of Fenwick & West.

* Amicus Brief: Internet Law Scholars. By Jane Bambauer of University of Arizona (aided by UA privacy fellow Mark Verstraete). Disclosure note: I joined this brief.

* Amicus Brief: Public Citizen and Floor 64. By Paul Alan Levy of Public Citizen and Phil Malone and Jef Perlman (and two students) of the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School.

* Amicus Brief: Reporters Committee for Freedom of the Press, Thomas Jefferson Center for the Protection of Free Expression, and 18 Media Organizations. By J. Joshua Wheeler of the TJ Center and Katie Townsend, Bruce Brown, Gregg Leslie, and Ariel Glickman of RCFP.

* Amicus Brief: Ripoff Report. By David Gingras of Gingras Law and Anette Beebe of Xcentric. Similar language appeared in their prior letter, but it’s worth quoting again:

for the same reason that courts do not destroy their files, Ripoff Report offers 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. Both are worthy of protection and historical preservation because “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.”…Ripoff Report does, however, have a Court Order policy that will allow, for free, specific word redaction when both parties appear and defend a case and the court, based upon evidence, identifies specific content to be false and/or defamatory in its order.

What Changed from Last Time?

14 letters, all in support of Yelp, were submitted to the California Supreme Court asking them to grant the discretionary review. The standards for writing a letter supporting the petition for review are lower than the standards for amicus brief-writing. The letter is more informal and less costly to prepare, it doesn’t matter if the letters make overlapping points, and mostly the letters are meant to send a signal about the degree of community interest in the case rather than to persuade the judges about legal merits. Therefore, it’s not surprising that some letter authors might not submit amicus briefs. A non-comprehensive list of changes from the letter round to the amicus round:

* the ACLU/EFF/PPP letter added some new signatories, including Avvo (which had done its own letter last time)
* Airbnb, Automattic, Pinterest, and Reddit joined the Wilmer Hale brief with other Internet companies rather than doing its own. This meant that Jonathan Blavin of Munger Tolles and Jim Snell of Perkins Coie didn’t write a brief this time. It appears Microsoft chose not to join the brief after joining the Wilmer Hale letter.
* CCIA and R Street did not submit briefs. IA/CTA submitted a brief after not submitting a letter.
* GitHub and Wikimedia were on the Jason Schultz/NYU letter. This meant Cathy Gellis didn’t write a brief this time.
* TripAdvisor joined Glassdoor’s brief after not joining any letter.
* the Internet Law professors split into two brief. Eugene Volokh wrote the letter, but this time he drafted a solo brief (for good reasons). Jane Bambauer took over the Internet Law professors brief, and I’m grateful to her for doing the work.
* Other new briefs include Bird’s and Chemerinsky’s.

Case library:

* Amicus briefs from: ACLU-NC et al, Airbnb et al, Bird, Change.org et al, Chemerinsky et al, Glassdoor/TripAdvisor, Google, IA/CTA, Internet Law Scholars, Public Citizen/Floor 64, RCFP, Ripoff Report, Volokh.
* Yelp’s Opening Brief to the California Supreme Court and Request for Judicial Notice. Hassell’s answering brief. Yelp’s reply brief.
*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). My roundup blog post.
* Appellate Court Opinion. My blog post about it.
* Yelp’s Appeals Court Brief. Hassell’s Response Brief. Yelp’s Reply.