The California Supreme Court Didn’t Ruin Section 230 (Today)–Hassell v. Bird
I previously described the case facts: “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 development, in 2016, the Court of Appeals upheld the injunction. Today, the California Supreme Court reversed that ruling, seemingly restoring the status quo. Yelp rightly claims it as a win.
However, the long-term implications of this case aren’t entirely clear because the Supreme Court voted 3-1-3: three justices on a plurality opinion, 3 justices (in 2 opinions) in dissent, and a swing-vote concurrence by Justice Kruger. This split reflects partisan lines: the 3 plurality judges were all appointed by Republicans, while the dissenting judges (including Judge Stewart sitting by designation) were appointed by Jerry Brown. (Justice Kruger, the concurring judge and wild-card in this case, was also appointed by Brown). The plurality and dissent are also split in seniority and age–the three Republicans are the three longest-serving and oldest justices. The court was clearly fractured ideologically, with the plurality opinion and Justice Cuellar’s dissent taking unusually public swipes at each other. For example, Chief Justice Cantil-Sakauye writes for the plurality: “We also dispute Justice Cuéllar’s characterizations of various aspects of this opinion. Yet we see no need to address each of the numerous instances where his dissent misstates our views. It is enough to recall former Justice Werdegar’s observation that ‘[c]haracterization by the . . . dissenters of the scope of the majority opinion is, of course, dubious authority.'” Whew, did someone turn up the heat in here?
Unfortunately, the fractured opinions raise some doubts about the true holding of this case. If the plurality opinion is the law, Section 230 defendants have a lot to celebrate. The plurality opinion strongly endorses Section 230. Furthermore, Justice Kruger’s opinion echoes much of the plurality’s Section 230 discussion, giving a 4 vote majority to those points. However, Justice Kruger’s opinion also questions the full extent of Section 230’s immunity, and elsewhere it expressly agrees with much of the dissent. So plaintiffs and future courts can find 4-vote majority propositions between the dissents plus Justice Kruger. That’s a good sign that courts citing this precedent will reach conflicting results. Something to look forward to.
The opinion is noteworthy for what it didn’t do. There was no analysis at all of the First Amendment. Due process was discussed, but there was no clear resolution on the applicability of Constitutional due process to this case. The opinions did not come anywhere close to resolving when a non-party can be bound to an injunction, an issue that affects cases far beyond the Internet Law realm. I’m sure litigators throughout California are lamenting the irresolute discussion on that point in this case. So while this case teed up a bevy of really interesting legal questions for the California Supreme Court, the opinion actually only advances the discussion of a couple of those issues.
One of the many unusual aspects of this case is that Yelp didn’t remove the review when presented with the court’s judgment. I think Yelp made the right call; the default judgment had enough irregularities that Yelp appropriately proceeded with caution. At the same time, most Internet services typically respond to court judgments of defamation by removing the user content. So it’s not clear how often we’ll see future cases similar to this one. A lot will depend on whether plaintiffs keep trying to get default judgments to scrub unwanted content, a practice now clearly disfavored by the California Supreme Court ruling but not necessarily eliminated–because, among other things, the voluntary response by Internet services may be worth chasing even if the services can’t be forced to honor the judgment.
Had the plaintiff won this case, it would have opened the floodgates of plaintiffs seeking default judgments, meritorious or not. In contrast, odds are high that this ruling won’t change much in the field. Plaintiffs will still seek default judgments, services will still honor them most of the time, and plaintiffs are going to be reluctant to bring lawsuits in those situations where the services don’t honor the judgments. An opinion that mostly maintains the status quo makes for less sexy headlines, but it’s still an important development given the potentially devastating implications of the alternatives.
Also, though the Supreme Court rejected Hassell’s against Yelp, Hassell still can proceed directly against Bird for violation of the injunction–something that Hassell has not attempted yet. So it’s premature to draw broader lessons about the potential injustices against Hassell given that she has not availed herself of the full range of legal mechanisms available to her–mechanisms that this opinion doesn’t disturb.
* * *
I’m now going to parse the opinions in some detail. If you’re not an Internet Law geek, you might decide to stop reading here.
Chief Justice Cantil-Sakauye’s Plurality Opinion:
Section 230 protects Yelp for posting Bird’s review. The plurality opinion makes that outcome clear: “Yelp could have promptly sought and received section 230 immunity had plaintiffs originally named it as a defendant in this case.” Thus, it’s understandable why Hassell didn’t name Yelp as a defendant initially; Yelp would have exited the case on Section 230 grounds with little difficulty.
The plurality fully understood that Hassell’s approach (sue Bird, then seek injunction against Yelp) undermines the obvious Section 230 defense. The court responds: “The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no….an order that treats an Internet intermediary ‘as the publisher or speaker of any information provided by another information content provider’ nevertheless falls within the parameters of section 230(c)(1).”
One of the legally contested topics is whether an injunction against Yelp treats Yelp like a “publisher” of Bird’s reviews. In what I think it the key part of the plurality opinion, the plurality concludes that it does (emphasis added):
With the removal order, plaintiffs seek to overrule Yelp’s decision to publish the three challenged reviews. Where, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication — including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous — section 230 prohibits this kind of directive….
In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews….The duty that plaintiffs would impose on Yelp, in all material respects, wholly owes to and coincides with the company’s continuing role as a publisher of third party online content.
The Court of Appeals’ opinion, in particular, denigrated Yelp’s role as a publisher, at one point calling Yelp an “administrator” of third party speech. The above passage from the plurality opinion provides a strong statement that removal injunctions interfere with Yelp’s protected editorial discretion as a publisher. [Note: this sounds like the kind of thing that should also be protected by the First Amendment’s press freedom, but none of the 4 opinions analyzed the First Amendment.]
Section 230(e)(3) has caused a lot of confusion in courts and Congress. It says “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Plaintiffs sometimes misread this clause to mean that Section 230 has limited applicability to state laws. The plurality opinion thumps this argument with one of the cleanest and most useful analyses of 230(e)(3) to date:
Section 230(e)(3) underscores, rather than undermines, the broad scope of section 230 immunity by prohibiting not only the imposition of “liability” under certain state-law theories, but also the pursuit of a proscribed “cause of action.”…This inclusive language, read in connection with section 230(c)(1) and the rest of section 230, conveys an intent to shield Internet intermediaries from the burdens associated with defending against state-law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff’s allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher.
The plurality opinion explains the many problems that injunction orders can pose for Internet services:
An injunction like the removal order plaintiffs obtained can impose substantial burdens on an Internet intermediary. Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform…Furthermore, as this case illustrates, a seemingly straightforward removal order can generate substantial litigation over matters such as its validity or scope, or the manner in which it is implemented. Section 230 allows these litigation burdens to be imposed upon the originators of online speech. But the unique position of Internet intermediaries convinced Congress to spare republishers of online content, in a situation such as the one here, from this sort of ongoing entanglement with the courts.
The court gives a well-deserved shoutout to Prof. Eugene Volokh for his important work on bogus court orders.
The plurality opinion expresses how Hassell’s strategy impermissibly undermined Section 230 and is infinitely repeatable by other plaintiffs:
the dissenters’ greatest error is that they fail to fully grasp how plaintiffs’ maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation. What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiffs’ approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content. Injunctions entered incident to the entry of judgments in these cases then would be interposed against providers or users of interactive computer services who could not be sued directly, due to section 230 immunity. As evinced by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which demanded nothing less than control over what local library patrons could view on the Internet, the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse — and in ways that go far beyond the deletion of libelous material from the Internet. Congress did not intend this result, any more than it intended that Internet intermediaries be bankrupted by damages imposed through lawsuits attacking what are, at their core, only decisions regarding the publication of third party content”
The plurality opinion concludes: “in light of Congress’s designs with respect to section 230, the capacious language Congress adopted to effectuate its intent, and the consequences that could result if immunity were denied here, Yelp is entitled to immunity under the statute. Plaintiffs’ attempted end-run around section 230 fails.”
Justice Kruger’s Concurrence
Both the plurality and dissent clearly vied hard for Justice Kruger’s vote, and frustratingly for them, neither side could convince her to join them. Still, her opinion says a lot that overlaps with both sides. I’m going to divide her concurrence into two topics: Section 230 and binding non-parties to injunctions.
Justice Kruger says she “believe[s] it is unnecessary to reach the section 230 question.” So, in theory, everything she says about Section 230 should be considered dicta in her opinion. And yet, she sure had a lot to say about Section 230!
For the most part, she agrees with the plurality:
I agree with the plurality opinion’s conclusion given the particular circumstances of this case: Even if it were permissible to issue an injunction against Yelp solely because it once permitted Bird to post her reviews and has the ability to remove them, the proceedings would be barred by section 230…
I agree with the plurality opinion that even if it were permissible to enter an injunction against a nonparty website operator based solely on its past decision to permit the defendant to post content on its website, the operator would be entitled to section 230 immunity in that proceeding…
Section 230 forbids a cause of action or the imposition of liability when the effect is to impose liability for, or draw the provider into litigation to defend, its past editorial judgments (or lack thereof) in permitting third party postings….
The question is instead whether the injunction necessarily holds Yelp legally responsible for, or otherwise authorizes litigation against Yelp solely because of, its editorial choices. As the case comes to us, I agree with the plurality opinion that the answer to that question is yes….plaintiffs have drawn Yelp into litigation solely because of its past decision to allow Bird to post her reviews. Even if the trial court otherwise had the power to issue an injunction against Yelp solely on that basis, the proceedings would be barred by section 230. I would, however, stop there; I venture no opinion as to how section 230 might apply to other take-down orders based on different justifications.
I’m confused by Justice Kruger’s multiple suggestions that Section 230 is available to Yelp for “once permitting” the review and its “past decision” to post. What are these facts being distinguished from? Is she trying to make a distinction between the initial decision to post and subsequent decisions not to remove? To me, that distinction doesn’t make sense–both posting and non-removal are the same editorial judgments–and in fact Hassell is seeking an injunction against Yelp’s current non-removal, not its initial posting decision. So I don’t understand what ground Justice Kruger is trying to preserve for future courts.
Furthermore, despite the last sentence of the prior excerpt, Justice Kruger goes ahead and ventures an opinion about other situations. In a head-scratching and deeply troubling statement, she says:
But section 230 does not bar a cause of action solely because the result might be a court order requiring the provider, as the publisher of the posting in question, to take steps to remove it.
Huh? What circumstances might this describe? How does this differ from an injunction against Yelp “solely because it once permitted Bird to post her reviews and has the ability to remove them,” which she said is covered by Section 230? This sentence surely would have attracted the votes of the dissent, so this is likely a majority statement of the court, and Justice Cuellar repeatedly points out that the plurality wasn’t a majority on Section 230. And plaintiffs are going to love it. Fun times.
Although Justice Kruger had a lot to say about Section 230, she bases her concurrence on the scope of courts’ authority to bind non-parties to injunctions. She says that the facts do not “establish the sort of legal identity between Bird and Yelp that would justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no meaningful opportunity to participate.”
What is the exact problem with the injunction that Justice Kruger needs to fix? Is it that Bird and Yelp aren’t sufficiently close to each other? That Yelp was a non-party? That Yelp had no meaningful opportunity to participate in the proceeding? Which of these facts need to be changed to change Justice Kruger’s conclusion? I’m not sure.
Justice Kruger further clouds the waters by saying the intermediate appellate court ruling “does not preclude plaintiffs from instituting further proceedings if they believe Yelp has engaged in relevant post-order evasive conduct, or from seeking appropriate clarification of the scope of the injunction against Bird, but it does foreclose reliance on an aiding and abetting theory to validate the order enjoining Yelp in the first instance.” Does this mean that Hassell can still pursue relief against Yelp in this case, despite the Supreme Court ruling? Again, assume the 3 dissenting judges would vote to support that.
Justice Cuellar’s and Justice Liu’s Dissents
I’m going to group the two dissents together because they overlap some.
Justice Cuellar says: “the plurality opinion endangers victims of torts committed online, impermissibly limits the remedies available to Californians who rely on our state courts for protection, and sanctions a rule bereft of justification under California or federal law, with troubling implications for an Internet-dependent society.” Justice Liu adds that the result ensures “that Hassell will continue to suffer reputational harm from the unlawful postings unless Bird is somehow made to comply.” However, we don’t know if Bird can be “somehow made to comply” because Hassell hasn’t even tried. So I think it’s premature to form any conclusions about what relief Hassell will ultimately obtain.
Justice Cuellar also complains that there’s nothing “excessively burdensome as a matter of law about the removal of posts a California court has deemed defamatory, even if Yelp would
much prefer to wash its hands of this responsibility” and “under the expansive immunity Yelp demands, harmful statements that could be retracted or removed if made in print
could remain online indefinitely with no recourse.” Thus, he expresses a broader concern about the quality of information online:
The Internet has the potential not only to enlighten but to spread lies, amplifying defamatory communications to an extent unmatched in our history. The resulting injuries to individuals’ reputational interests from defamation, revenge porn, and similar content can be grave and long-lasting, and negative effects on businesses can be equally or more severe. Speakers on the Internet can reach huge audiences across the country and internationally, and the perpetuation of fake, defamatory, and harmful content has implications for critical social issues, including consumer protection, personal safety, disaster and violence prevention, and government independence. The plurality opinion contends that we advance an interpretation of section 230 that threatens the promotion of online discourse and thwarts Congress’s intent. Not so. Online freedom is not so fragile that its existence depends on eviscerating courts’ power to protect people from defamatory information or other communications lacking lawful protection. Indeed, under our interpretation, a nearly infinite range of interactions online remain available –– ones that do not involve the spread of information courts have found defamatory or otherwise unprotected by law.
The funny thing is, I agree with much of this paragraph. But due to things like the moderator’s dilemma, I also see expansive interpretations of Section 230 as the solution to bad content, not the source of them. I’ll have more to say about this eventually.
What Does It Mean to Be “Liable”? Does the Injunction Treat Yelp Like a Publisher?
Justice Cuellar takes the position that an injunction does not hold Yelp “liable” for “publishing” Bird’s review, so the injunction doesn’t violate Section 230. He says: “An obligation not to act in concert or with an enjoined party to violate the terms of an injunction is not a cause of action or a financial or legal obligation treating Yelp as the publisher or speaker of Bird’s speech.” He thinks Section 230’s reference to “liable” refers only to financial obligations like money damages, so it’s possible he would categorically reject Section 230’s applicability to injunctions (which would be a dramatic break with precedent). He adds:
Yelp’s duty is not the result of its status or acts as a publisher. Yelp’s duty is to refrain from violating the injunction or assisting Bird in evading the injunction.
But the only “assistance” Yelp provides to Bird is continuing to PUBLISH her reviews. So the distinction Justice Cuellar seeks to make (Section 230 protects publication decisions but not injunctions against Bird’s activity) makes no sense.
Does Yelp “Aid and Abet” Bird, and Would That Work Around Section 230?
Justice Cuellar thinks Yelp is aiding and abetting Bird:
A website’s willful refusal to comply with an injunction, where compliance is feasible, may also provide evidence to support a finding that the service provider aided, abetted, or acted in concert, combination, or collusion with an enjoined defendant. Evidence that a website prominently featured a defamatory review –– to attract viewers or for other reasons –– after it had notice of a defamation judgment and injunction directing the speaker to remove the defamatory post may indicate the provider has acted to violate the injunction in support of the enjoined party. A provider’s actions to maintain unlawful Internet posts in concert with a defendant may support a factual finding of aiding, abetting, or acting in concert or in support of the defendant. So could situations where a defendant has reason to believe her content is unlawful but is encouraged by a provider to retain the content, or where a defendant attempts to remove unlawful content, but the provider retains the content citing its right to use, display, or promote the content under its terms of service….
Yelp’s post-injunction involvement in this case, including its legal arguments on behalf of Bird, and its litigation director’s written refusal of Hassell’s removal request, suggest that Yelp has gone beyond the “mere inactivity” found in Blockowicz. Moreover, if we believed a court could glean no support for an aiding and abetting finding based merely on a provider’s failure to remove unlawful content after receiving notice of an injunction, the sum of a provider’s conduct could still amount to aiding and abetting. By using algorithms to facilitate further distribution of the information in question to a defendant’s preferred audiences, for example, or providing certain financial support to the enjoined party, the provider could take action deemed for the benefit of, or to assist, that party.
It’s dispiriting to see the reference to algorithms in this passage. Algorithms are our friend, not our enemy!
Justice Liu riffs on similar terrain:
Bird posted a review on Yelp, a website that attracts tens of millions of visitors every month. Yelp is an interactive service provider dedicated to inviting people like Bird to post reviews of local businesses and inviting users to search, sort, and read those reviews (all while exposing website visitors to advertisements). Yelp formats the reviews, makes the reviews searchable, and aggregates reviews of each business into a rating from one to five stars. Yelp’s Terms of Service make clear to reviewers that “[w]e may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms.” The Terms of Service also state that Yelp owns “visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content.” The treatment of user comments by other websites may be more passive, and I do not suggest that any website that posts user comments may be subject to a removal order like the one here. But Yelp’s relationship with reviewers like Bird is not passive….It was Bird’s defamation of Hassell, facilitated by Yelp’s willing and active participation, that the trial court sought to enjoin.
Though Justice Liu is referring more to aiding/abetting, just a reminder that Section 230 doesn’t turn on an active/passive distinction. Section 230 protects editorial decisions like all of the ones Justice Liu cites.
Justice Cuellar’s over-expansive view about what constitutes aiding-and-abetting draws a big reaction from the plurality and Justice Kruger. Chief Justice Cantil-Sakauye writes in a footnote: “the Court of Appeal did not rely on an aiding and abetting theory to justify the extension of the injunction to Yelp. We expressly reject the argument, offered by Justice Cuéllar in his dissent, that the circumstances stressed by the trial court (plus, perhaps, Yelp’s letter to Hassell, in which it explained its decision not to remove the reviews) might somehow serve to deprive Yelp of immunity. Most of these facts involve what are clearly publication decisions by Yelp.”
Justice Kruger also pushes back, saying: “The trial court in this case reasoned, among other things, that Yelp is aiding and abetting Bird’s violation of the injunction simply by failing to remove Bird’s reviews from the website. But this establishes only that Yelp has not stepped forward to act despite Bird’s noncompliance. That is not aiding and abetting….The mere fact that Yelp has not removed Bird’s reviews from its website is not reason enough to avoid litigating the question whether Yelp does, in fact, have a legal obligation to remove the reviews from its website, in a forum in which Yelp has a meaningful opportunity to be heard.” Justice Kruger adds that “even when the common law permits the enforcement of an injunction against a third party aider and abettor, other sources of law, including section 230, may not.”
Aiding-and-abetting has been a known potential Section 230 workaround for a long time. These opinions may be the most decisive judicial opinion on aiding-and-abetting’s intersection with Section 230’s immunity. The plurality is clear that Section 230 preempts aiding-and-abetting claims, and I think Justice Kruger is sympathetic to that view if not outright supportive. I’m sure future plaintiffs will still allege aiding and abetting in Section 230 cases, but this opinion provides a good citation against such arguments.
Statements Only a Plaintiff Will Love
Justice Cuellar tweets a couple of strawman statements against Section 230 that are likely to show up frequently in future plaintiffs’ briefs:
- “section 230 does not endow an interactive service provider with absolute immunity from complying with a court order that includes injunctive relief simply because it functions as a publisher.” First, I don’t know any credible person who claims Secti0n 230 provides “absolute immunity.” That would be a nonsense reading of the statute. Second, Section 230 provides immunity when defendants function AS A publisher; I don’t know anyone who has claimed it provides immunity for other circumstances solely because the defendant acts as a publisher in ways unrelated to the claim
- “To the extent the Communications Decency Act merits its name, it is because it was not meant to be –– and it is not ––a reckless declaration of the independence of cyberspace.” First, everyone knows John Perry Barlow’s Declaration of Independence of Cyberspace was more of a rage-fueled rant than a serious proclamation. Second, he wrote the declaration IN RESPONSE TO the CDA–so of course the CDA wasn’t a “reckless declaration of the independence of cyberspace” because it was the antithesis to it that prompted Barlow’s rant. Third, no one talks about “the independence of cyberspace” any more. That’s a caricature of 1990s cyber-libertarianism that has become virtually extinct. Fourth, this language evokes Judge Kozinski’s similar strawman from Roommates.com that “The Communications Decency Act was not meant to create a lawless no-man’s-
land on the Internet,” even though no one ever suggested it created such a land, and anyone who knows Section 230 would never make that claim. See my first point above about “absolute immunity.” Every time a judge quotes this strawman “lawless no-man’s- land” language, another puppy has a bad day. This also will be true for Justice Cuellar’s strawmen.
Case Citation: Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018)
* Supreme Court Opinion. My blog post about it.
* Yelp’s response to the Chemerinsky Amicus Brief. Hassell’s response to the amicus briefs.
* 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. My blog post about the parties’ filings and the amicus briefs.
* 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.
Related Blog Posts:
* Section 230 Precludes Injunctive Relief Against Message Boards–Medytox v. InvestorsHub
* Ripoff Report May Be “Appalling,” But It Still Gets 47 USC 230 Immunity–Giordano v. Romeo
* Florida Court Fixes Erroneous 47 USC 230 Ruling–Giordano v. Romeo
* Ripoff Report Ordered to Stop Publishing User-Submitted Report–Giordano v. Romeo
* Ripoff Report Isn’t Bound By Injunction Against User Post–Blockowicz v. Williams
* Blog Host Can’t Be Bound by TRO for User Posts (Blockowicz redux)–Bobolas v. Does
* Ripoff Report Not Bound by Takedown Injunction Against User–Blockowicz v. Williams