Hassell v. Bird, No. S235968, Supreme Court of California. Oral argument April 4, 2018.
Immunity from liability is a legal status to be cherished, enjoyed by the government as an artifact of the notion that the king can do not wrong, and more currently vitally enjoyed by internet sites such as Yelp, which provides information about commercial entities and reviews of products and performance. Section 230 of the Communications Decency Act of 1996 insulates web hosts from liability for third party content. The legislative notion was that this shield would allow the robust development of the internet unhampered.
More than twenty years later, it is clear that Section 230 does not address in full online reality. In this case, California attorney Dawn L. Hassell obtained a judgment finding that former client Ava Bird had posted a defamatory review on Yelp. Hassell obtained an order directing Yelp to remove the defamatory material.
Yelp argues that the take-down order abrogates the immunity granted by Section 230, that the order is an injunctive prior restraint in violation of Yelp’s First Amendment rights, and that Yelp, a stranger with awareness of but non-party status in the defamation litigation, was denied due process in that proceeding. Yelp alleges error in the entry of the take-down order, requiring vacation, where Yelp was not afforded notice and an opportunity to appear to assert its immunity and any other interests it might have asserted.
Hassell submits that the Supreme Court of California will search in vain for a First Amendment violation, for no constitutional protection attaches to defamation. Hassell perceives the injury asserted to result from the take-down order to be without foundation in law, as precedent exists to find that those who have furthered others’ wrongdoing may be required to participate in its redress.
This case stimulated tremendous stir when appellate proceedings commenced more than a year ago. It is not known why the Supreme Court of California permitted the case to languish until last week, when oral argument was held. There have been rumors of and some legislative action in fact concerning amendment to Section 230 limiting its immunizing sweep, most recently with respect to human trafficking, which in itself has engendered further controversy.
Whatever the reason for the court’s seeming reluctance to enter the fray, at oral argument the court wrestled with the issues while giving little inclination of its inclinations, although media and others have offered their views. While not hostile to either party, the court, as chief adjudicative body for the state, cannot be other than concerned about the consequences of an insurgence of defiance of the authority of the courts, as shown by refusal to comply with the take-down order in issue in Hassell v. Bird.
Hassell v. Bird confirms, were there any doubt, that Yelp and others will not lightly relinquish the sweeping immunity extended to private parties, paralleled only by that reserved to the government and limited others, that it enjoys by virtue of Section 230. Nonetheless, the legislative boost to technological advancement that Section 230 provides cannot be said to have eviscerated the common law, yet that will be the perceived result if Hassell is unsuccessful in defending issuance of the take-down order.
Intermediary redress does not seem to have been seriously suggested. Remand to provide Yelp with the due process it states it was denied appears less savory than outright victory (or defeat), yet remand would permit the Supreme Court of California to avoid fashioning precedent that might prove more confounding than curative.
Neither have somewhat homespun, yet arguably effective, mechanisms been entertained with enthusiasm. There is no known impediment to Hassell or her firm posting, at the location of Bird’s offending commentary, notice and a copy of the judgment of defamation. While not offering relief as complete as the erasure promised by removal, in some instances self-help may prove superior to enforcement litigation.
A chorus of technology and First Amendment advocacy, predominantly in support of recognition of Section 230 immunity in Yelp, has accompanied this litigation on its way to its presentation to the Supreme Court of California. Nightmarish scenarios of judgments and take-down orders obtained through collusion and fraud have been offered for the court’s consideration.
The April 4th oral argument has not yet been added to the Supreme Court of California archive, but those interested may check for developments here: https://newsroom.courts.ca.gov/news/supreme-court-oral-argument-webcast-archive.
The parties’ submissions, both on the merits and in petition for review, and amicus curiae materials may be reviewed through these links:
Petition for Review:
Petition for Review by Nonparty Yelp
Answer to Petition for Review by Respondent Hassell and Hassell Law Group
Reply to Answer to Petition for Review by Nonparty Yelp
Yelp Request for Judicial Notice
Hassell Answering Merits Brief
Yelp Motion for Judicial Notice
In Support of Yelp:
ACLU of Northern California et al. Amicus Brief
Change.org et al. Amicus Brief
Eugene Volokh et al. Amicus Brief
Eugene Volokh et al. Revised Amicus Brief
Eugene Volokh et al. Revised Amicus Brief
First Amendment and Internet Law Scholars Amicus Brief
Glassdoor and Trip Advisor Amicus Brief
Internet Association et al. Amicus Brief
Public Citizen and Floor64 Amicus Brief
Reporters Committee for Freedom of the Press et al. Amicus Brief
In Support of Hassell:
Chemerinsky et al. Amicus Brief
In Reply to Amici by Yelp:
In Reply to Amici by Hassell: