California Supreme Court Justices Grill Yelp on Scope of Section 230
The justices seemed skeptical of arguments that the law permits internet platforms to not comply with court orders to pull content down.
April 03, 2018 at 06:14 PM
4 minute read
SAN FRANCISCO — Yelp Inc. has by and large been able to beat back lawsuits seeking to pull down reviews by unhappy business owners. But on Tuesday, in arguments before the California Supreme Court in Los Angeles, the online review company seemed to be on its back foot.
The case at the state high court, Hassell v. Bird (Yelp), stems from a negative review of a law firm called the Hassell Law Group in San Francisco. The firm secured a default judgment against a former client, Ava Bird, that Bird's Yelp review was defamatory. Then the trial court issued an injunction against Yelp to pull the review down. Yelp was never a party to the case.
Yelp, with the backing of tech allies, has made the arguments that its due process rights were violated in this instance and that Section 230 of the Communications Decency Act protects internet service providers from having to pull down content posted by their users. Section 230 has typically been a sturdy defense for tech companies when it comes to liability for content.
But the question before the court is whether Section 230 also bars a court from enforcing an injunction against an internet platform over third-party content.
Yelp's lawyer, Davis Wright Tremaine attorney Thomas Burke, faced a tough crowd on the bench Tuesday. The justices seemed uneasy with the idea that an injunction to remove speech adjudicated as defamatory could essentially be ignored by Yelp because of its immunities as a “publisher” under 230.
“So Section 230 is basically a license to continue to publish unlawful or defamatory content in perpetuity?” Justice Leondra Kruger asked Burke.
Justice Mariano-Florentino Cuéllar asked how that rule would apply in a context like revenge porn. Burke responded that the facts in this case are very different.
Justice Carol Corrigan seemed to have similar concerns as her colleagues. If the speech is ruled to be defamatory, “on what basis does Yelp then have grounds to say, 'Well OK, Ms. Bird can't continue to say this, but we're going to be able to say it,'” she prodded.
Burke struggled to respond to that, and instead emphasized that Yelp wanted a chance to argue over whether the speech was defamatory at all.
Justice Goodwin Liu drilled down on that point, and asked what Yelp would do if it had a chance to argue, but the result in the trial court was the same. Burke said at that point, Yelp could continue to object to the order and file an appeal.
“It sounds like you're having your cake and eating it too,” Liu said.
Burke's opposing counsel, Monique Olivier of Duckworth Peters Lebowitz Olivier, also got some pointed questions. Chief Justice Tani Cantil-Sakauye seemed perturbed by the fact that Yelp never got a chance to argue its case prior to the injunction being issued.
The chief justice said that left the court to “guess” how things might have played out in assessing how to deal with questions of Section 230's scope “That's hardly a way to decide a case in front of the Supreme Court on an issue this important,” she said.
But Olivier maintained that the relevant parties in the case are the Hassell Law Group and Bird, and that Yelp doesn't have an independent First Amendment interest in preserving the review at issue. “It certainly doesn't have a First Amendment right to post defamation,” she added.
“The rule that Yelp is advocating would allow all kinds of unprotected speech to remain in the public sphere for perpetuity,” Olivier added, echoing Kruger. “That cannot be the result that the Communications Decency Act intended.”
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