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California Supreme Court Ruling Aligns with Amici Brief Filed by Horvitz & Levy

July 3, 2018

Hassell v. Bird

S235968 (Cal. Supreme Court, July 2, 2018)

Plaintiff obtained a default judgment against Defendant for defamatory reviews Defendant allegedly posted on Yelp. The trial court then ordered Yelp to remove the reviews even though Yelp was not named a party to the action. Yelp filed a motion to vacate the injunction on the basis it was immune from liability under 47 U.S.C. § 230, which immunizes internet service providers from liability for third party content. The trial court denied the motion, finding that although Yelp was a nonparty, there existed a factual basis to support Plaintiff’s contention Yelp acted as an aider and abettor of Bird’s conduct thus permitting the injunction to run against Yelp as a nonparty. The Court of Appeal affirmed .

In a 4-3 decision, the California Supreme Court reversed. The plurality opinion, written by Chief Justice Cantil-Sakauye and joined by Justices Chin and Corrigan, held that the injunction inherently treated Yelp as a publisher and was therefore barred by section 230. The plurality recognized that to hold otherwise would result in creative pleading around section 230, contrary to Congressional intent to broadly immunize internet service providers from liability for third party speech. Since section 230 provided immunity, the plurality declined to reach the due process issue.

The concurrence, written by Justice Kruger, would have decided the case based on common law principles—backed by Constitutional due process—providing that a court’s power generally extends only to parties, and no exception applied to the injunction here to force a nonparty to remove third party content simply because a party defaults on their obligation to remove it.

Justice Liu and Justice Cuellar each filed dissenting opinions, with pro tem Justice Therese Stewart joining Justice Cuellar’s dissent. Justice Liu would have found that section 230 did not provide immunity here as a matter of law, whereas Justice Cuellar’s dissent would have remanded to further develop whether Yelp had aided and abetted Bird’s defamatory content such that the injunction could apply to it consistent with section 230.

Jeremy B. Rosen, Scott P. Dixler, and Matthew C. Samet filed an amici brief in support of Yelp on behalf of the ACLU of North California, ACLU of San Diego & Imperial Counties, ACLU of Southern California, Avvo, California Anti-SLAPP Project, Electronic Frontier Foundation, First
Amendment Coalition, and Public Participation Project.