California courts will be vigilant about attempts to dodge the CDA

Earlier this summer, the California Supreme Court issued its long-awaited decision in Hassell v. Bird, 2018 DJDAR 6525 (July 2, 2018). The case considers whether a court can properly order a nonparty service provider (in this case, the review aggregator site Yelp) to remove a post based upon a default judgment and injunction against the service provider's customer who uploaded the post. The Hassell court decided by a 4-3 margin, which included a plurality opinion and a concurrence by Justice Leondra Kruger, to reject application of the removal order to nonparty Yelp. A majority of justices agreed that extending the removal order to Yelp would treat the service provider "as the publisher or speaker of ... information provided by another information content provider" in violation of section 230 of the Communications Decency Act.

Section 230 of the CDA offers "providers or users" of "interactive computer services" with robust immunities from liability based on materials from other information sources. Section 230(c)(1) provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Section 230(e)(3) builds upon this immunity and states: "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."

While the full implications of the California Supreme Court's decision remain to be seen, Hassell clarifies some important legal limits on the ability of courts to apply injunctions enjoining particular speech to nonparty platforms upon which that speech appears -- limits that will become all the more significant as people increasingly press arguments for online service providers to expand their monitoring and censorship of user-posted materials available through their services.

Background

This case concerned a handful of negative reviews on the Yelp page for a Bay Area law office: two posts by a user named "Birdzeye B." and one other post by a user named "J.D." The attorney, Dawn Hassell, was unhappy with the reviews and suspected that Ava Bird, a former client, had posted them. Hassell had previously represented Bird for a short period in a personal injury matter, but Hassell had withdrawn from the representation. Hassell brought suit against Bird to have the reviews removed. After attempts at personal service failed, Hassell effected substitute service. Bird failed to appear, and Hassell obtained a default judgment declaring that the reviews were defamatory and ordering Bird to remove them. Rather than attempt enforcement against Bird, however, Hassell served the removal order upon Yelp directly and demanded that Yelp remove the posts. Yelp refused.

Hassell's original lawsuit did not name Yelp. As the California Supreme Court's plurality opinion noted, "this omission was intentional." The Hassell plaintiffs admitted before the state superior court that "if they added Yelp as a defendant and integrated the company into the action at that time, Yelp could respond by asserting immunity under section 230." Thus, by bringing suit against Bird individually but leaving Yelp out of the proceeding until it came to enforcing the default judgment injunction, Hassell sought to plead around the core CDA immunities with a "bank-shot injunction," where the actual target for enforcement is not a party to the lawsuit.

Yelp challenged the validity of this "bank-shot injunction" device on several grounds. In addition to raising First Amendment concerns, Yelp argued that the removal order violated Yelp's due process rights because it demanded compliance without first providing notice and a meaningful opportunity to be heard and that the immunities of Section 230 barred the application of the removal order to Yelp. Yelp also faulted Hassell for failing to provide adequate notice to Bird of the action and for failing to connect the challenged reviews to Bird. (Indeed, despite her failure to appear at the superior court level, Bird submitted an amicus brief to the California Supreme Court in which she acknowledged writing the "Birdzeye B." reviews, but denied writing the other review from "J.D.")

The superior court rejected Yelp's arguments and denied its motion to set aside and vacate the default judgment. Yelp appealed, arguing that, to the extent that the removal order commanded Yelp to remove the challenged reviews, it violated both due process and Section 230. The California Court of Appeal disagreed on both counts and affirmed the superior court's decision. It found no violation of Yelp's due process rights and noted 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." Since Yelp was a mere nonparty administrator, the appellate court reasoned, the removal order did not itself impose liability on Yelp and thus Section 230 did not apply.

Opinions of the Supreme Court

On appeal, the justices of the California Supreme Court (including one judge from the California Court of Appeal sitting to fill a Supreme Court vacancy) disagreed widely on whether the removal order could validly apply to Yelp. Chief Justice Tani Cantil-Sakauye, writing for a plurality of three justices, held that the immunities under Section 230 barred the application of the removal order to an online service provider such as Yelp. The plurality opinion began with a survey of the past decisions interpreting Section 230: starting with the seminal 4th U.S. Circuit Court of Appeals case Zeran v. America Online, Inc. (1997), which held that Section 230 immunized online bulletin boards from liability based on user posts, and moving on to cases that extended these immunities to other providers of computer services such as libraries (Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001)) and users that repost materials created by others (Barrett v. Rosenthal, 40 Cal. 4th 33 (2006)). As Section 230 confers "blanket immunity from tort liability for online republication of third party content," the plurality had no difficulty finding that Section 230 barred all lawsuits against Yelp and noted that the only question was "whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant." In the plurality's view, the same Section 230 analysis should apply in either case. And, because the statutory argument proved dispositive, the plurality found no need to address the due process question.

Justice Leondra Kruger delivered a concurrence that focused primarily on the due process issues of applying injunctions to nonparties. Citing the U.S. Supreme Court's 1940 decision in Hansberry v. Lee, as well as other canonical due process precedents, the concurrence expressed the view that the injunction was invalid because the superior court failed to provide Yelp meaningful notice and an opportunity to be heard before it went into effect. While noting it was "unnecessary to reach the section 230 question," Justice Kruger agreed that -- even absent due process concerns -- Section 230 would have barred the application of the removal order as to Yelp on these facts. But her concurrence also left open the possibility that Section 230 might apply differently to other take-down orders resting on different justifications.

The remaining justices splintered across several dissents. In his dissent, Justice Goodwin Liu argued that, unless nonparty Yelp acted on the removal order, Hassell would have no effective remedy for the harm she suffered -- even though nothing stopped Hassell from seeking to enforce the order against Bird directly. Meanwhile, in a dissent joined by Justice Therese Stewart (of the 1st District Court of Appeal), Justice Mariano-Florentino Cuéllar wrote that Section 230 did not bar the removal order because it did not impose "liability" on Yelp based on "publishing" the challenged reviews: "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." Justice Cuéllar swept aside the due process issues Yelp had raised and expressed the view that Yelp, by virtue of operating a platform for customer reviews, aided and abetted Bird's defamatory speech.

Importance

Hassell v. Bird marks the first time that the California Supreme Court considered whether and how the CDA applies to the enforcement of injunctions against nonparty online service providers. While the plurality opinion suggests that Section 230 may serve as a bulwark against the use of contrivances like these "bank-shot injunctions," it will likely be years before the implications of the decision will be clear. None of the opinions addressed the First Amendment considerations that this kind of censorship of online speech may implicate. The plurality also bypassed the question of whether applying removal orders to nonparties like Yelp violates due process rights; that question may become increasingly relevant if Congress considers further amendments to the CDA.

Even Hassell's core Section 230 holding is not free from doubt. Although a majority of justices agreed that Section 230 would bar the application of the removal order to Yelp on the facts before them, there still remains an open question of how broadly those Section 230's immunities sweep, particularly in light of Justice Kruger's concurring opinion. Nevertheless, Hassell suggests that California courts will see through litigation tactics that appear calculated to circumvent CDA protections.