Hassell v. Bird , 5 Cal. 5th 522 ( 2018 )

Filed 7/2/18
IN THE SUPREME COURT OF CALIFORNIA
DAWN L. HASSELL et al., )
)
Plaintiffs and Respondents, )
) S235968
v. )
) Ct.App. 1/4 A143233
AVA BIRD, )
) San Francisco County
Defendant; ) Super. Ct. No. CGC 13530525
)
YELP INC., )
)
Objector and Appellant. )
____________________________________)
In this case, we consider the validity of a court order, entered upon a default
judgment in a defamation case, insofar as it directs appellant Yelp Inc. (Yelp) to
remove certain consumer reviews posted on its website. Yelp was not named as a
defendant in the underlying lawsuit, brought by plaintiffs Dawn Hassell and the
Hassell Law Group, and did not participate in the judicial proceedings that led to
the default judgment. Instead, Yelp became involved in this litigation only after
being served with a copy of the aforementioned judgment and order.
Yelp argues that, to the extent the removal order would impose upon it a
duty to remove these reviews, the directive violates its right to due process under
the federal and state Constitutions because it was issued without proper notice and
an opportunity to be heard. Yelp also asserts that this aspect of the order is invalid
under the Communications Decency Act of 1996, relevant provisions of which
SEE CONCURRING & DISSENTING OPINIONS
(found at 47 U.S.C. § 230, hereinafter referred to as section 230)1 relate, “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”
(§ 230(c)(1)), and “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”
(§ 230(e)(3)).
The Court of Appeal rejected Yelp’s arguments. We reverse. The Court of
Appeal erred in regarding the order to Yelp as beyond the scope of section 230.
That court reasoned that the judicial command to purge the challenged reviews
does not impose liability on Yelp. But as explained below, the Court of Appeal
adopted too narrow a construction of section 230. In directing Yelp to remove the
challenged reviews from its website, the removal order improperly treats Yelp as
“the publisher or speaker of . . . information provided by another information
content provider.” (§ 230(c)(1).) The order therefore must be revised to comply
with section 230.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2012, defendant Ava Bird approached the Hassell Law Group,
owned by Dawn Hassell (who is hereinafter referred to as Hassell), to represent her
in a personal injury matter. That August, Bird and the law firm entered into a
representation agreement. After e-mail exchanges and communication difficulties
led Hassell to conclude that Bird was unhappy with the firm’s performance, the
Hassell Law Group withdrew from representation in September 2012. Hassell
notified Bird of this decision via e-mail.
Several months later, on January 28, 2013, a one-star (out of five) review of
the Hassell Law Group appeared on Yelp. This website, available to anyone with
1 Subsequent undesignated statutory references are to title 47 of the United
States Code.
2
Internet access, provides a forum for reviews and ratings of businesses and other
entities. Individuals with Yelp accounts author the reviews and issue the ratings.
Individual reviews and ratings appear on the Yelp website together with the
author’s Yelp user name and location. A reviewed business may post a public
response to a user review; this response will appear directly below the review on
Yelp’s website. Yelp also combines individual ratings into an aggregate rating for
each business.
The one-star review was posted by Yelp user “Birdzeye B.” from Los
Angeles, California. It provided in full (with the spelling, spacing, capitalization,
and punctuation in this and all other quoted reviews per the originals) as follows:
“well, here is another business that doesn’t even deserve one star.
basically, dawn hassell made a bad situation much worse for me. she
told me she could help with my personal injury case from falling
through a floor, then reneged on the case because her mom had a
broken leg, or something like that, and that the insurance company
was too much for her to handle. and all of this after i met with her
office (not her personally, she was nowhere to be found) signed
paperwork to ‘hire’ them and gained confidence in her office (due
mostly to yelp reviews) so, in all fairness, i have to share my
experience so others can be forewarned. she will probably not do
anything for you, except make your situation worse. in fact, after
signing all the paperwork with her office, like a broken record, they
repeated ‘DO NOT TALK TO THE INSURANCE COMPANY’ over
and over and over. and over and over. so I honored that and did not
speak to them. but the hassell law group didn’t ever speak with the
insurance company either, neglecting their said responsibilities and
not living up to their own legal contract! nor did they bother to
communicate with me, the client or the insurance company AT ALL.
then, she dropped the case because of her mother and seeming lack
of work ethic. (a good attorney wont do this, in fact, they aren’t
supposed to) to save your case, STEER CLEAR OF THIS LAW
FIRM! and research around to find a law firm with a proven track
record of success, a good work ethic, competence and long term client
satisfaction. there are many in the bay area and with some diligent
smart interviewing, you can find a competent attorney, but this wont
be one of them.”
3
Hassell believed Bird to be the author of this review, and sent her an e-mail.
Hassell wrote Bird that “[y]ou are certainly free to write a review about your
experience and provide constructive feedback. But slandering someone and
intentionally trying to damage their business and reputation is illegal.” Disputing
statements in the review, Hassell requested that Bird remove or revise it, and
wrote that “[i]f you are unwilling to talk to me or respond, I will assume you don’t
intend to work this out [with] me directly and I will retain a defamation attorney
this week to file a legal action against you for slander and defamation.” Bird
responded with a lengthy e-mail of her own, in which she stated that Hassell
would “have to accept the permanent, honest review [I] have given you.”
Shortly thereafter, on February 6, 2013, another one-star review of the
Hassell Law Group was posted on Yelp. This review was from the user “J.D.,”
identified as hailing from Alameda, California. It provided in full as follows: “Did
not like the fact that they charged me their client to make COPIES, send out
FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!!
Isn’t that your job. That’s just ridiculous!!! They Deducted all those expenses out
of my settlement.”
On April 10, 2013, plaintiffs filed suit against Bird in San Francisco
Superior Court. The verified complaint alleged that Bird wrote both of the
previously discussed reviews, that these reviews were libelous, and that in posting
the reviews, Bird cast plaintiffs in a false light and intentionally inflicted
emotional distress upon Hassell. Plaintiffs sought general, special, and punitive
damages, as well as “injunctive relief prohibiting Defendant Ava Bird from
continuing to defame plaintiffs as complained of herein, and requiring Defendant
Ava Bird to remove each and every defamatory review published by her about
plaintiffs, from Yelp.com and from anywhere else they appear on the internet.”
Yelp was not named as a defendant. At oral argument before this court, counsel
4
for plaintiffs candidly acknowledged that this omission was intentional. Plaintiffs
anticipated 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.
After several attempts at personal service failed, plaintiffs effected
substitute service. On April 17, 2013, the summons and complaint were left with
another individual at the address where Bird was believed to reside. In November
2013, with Bird not yet having appeared in the case, plaintiffs moved for entry of a
default judgment. In the interim, “Birdzeye B.” had posted on Yelp an “update”
of her review of the Hassell Law Group. This update (which henceforth will be
described as a review), dated April 29, 2013, provided as follows:
“here is an update on this review.
dawn hassell has filed a lawsuit against me over this review I posted
on yelp! she has tried to threaten, bully, intimidate, harass me into
removing the review! she actually hired another bad attorney to fight
this. lol! well, looks like my original review has turned out to be truer
than ever! avoid this business like the plague folks! and the staff at
YELP has stepped up and is defending my right to post a review. once
again, thanks YELP! and I have reported her actions to the Better
Business Bureau as well, so they have a record of how she handles
business. another good resource is the BBB, by the way.”
In a declaration filed in support of the request for a default judgment,
Hassell explained that she had connected the January 2013 review to Bird “[b]ased
on the poster’s user name being similar to Ms. Bird’s real name and the details
such as ‘falling through a floor.’ ” Hassell also averred that the review from
“J.D.” had been written by Bird. She further related that since the first of the
challenged reviews had been posted, the Hassell Law Group had seen a significant
decrease in user activity on Yelp that suggested interest in the firm, and that as a
result of this review, its overall Yelp rating had dropped to 4.5 stars.
5
A “prove-up” evidentiary hearing was held on January 14, 2014.2 Hassell
was sworn as a witness and gave testimony at this session. After the hearing, the
court entered judgment in favor of plaintiffs, awarding general and special
damages and costs totaling $557,918.85. The court also ordered Bird “to remove
each and every defamatory review published or caused to be published by her
about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from Yelp.com
and from anywhere else they appear on the internet within 5 business days of the
date of the court’s order.” The court’s order also provides that Bird, and “her
agents, officers, employees or representatives, or anyone acting on her behalf, are
further enjoined from publishing or causing to be published any written reviews,
commentary, or descriptions of DAWN HASSELL or the HASSELL LAW
GROUP on Yelp.com or any other internet location or website.” Finally, the order
states that “Yelp.com is ordered to remove all reviews posted by AVA BIRD
under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any
subsequent comments of these reviewers within 7 business days of the date of the
court’s order.” Exhibit A includes the January 2013 and April 2013 reviews by
“Birdzeye B.,” and the February 2013 review by “J.D.”3
2 In a matter such as the one at bar, upon entry of a default, “[t]he plaintiff
thereafter may apply to the court for the relief demanded in the complaint. The
court shall hear the evidence offered by the plaintiff, and shall render judgment in
the plaintiff’s favor for that relief, not exceeding the amount stated in the
complaint, . . . as appears by the evidence to be just.” (Code Civ. Proc., § 585,
subd. (b).)
3 The Court of Appeal used the term “removal order” to describe only the
sentence within the order that explicitly directs Yelp to remove the three reviews.
We use this same term to describe the order generally.
6
Yelp was served with a copy of the default judgment later that month. 4 In
response, Yelp’s in-house counsel wrote Hassell a letter that identified several
perceived deficiencies with the judgment and removal order. The letter
accordingly advised that “Yelp sees no reason at this time to remove the reviews at
issue.” The letter added that Yelp reserved the right to revisit this decision if it
were to receive additional facts responsive to its concerns. Hassell was told that if
an action were pursued against Yelp premised on its publication of the reviews,
Yelp would “promptly seek dismissal of such action and its attorneys’ fees under
California’s anti-SLAPP law.” (See Code Civ. Proc., § 425.16.) Hassell
responded by letter dated April 30, 2014, explaining her position and asking Yelp
to reconsider and remove the reviews.
The next month, Yelp filed a motion to set aside and vacate the judgment.
In its supporting brief, Yelp argued that to the extent the order to remove the posts
was aimed at it, the directive violated Yelp’s due process rights, exceeded the
scope of relief requested in the complaint, and was barred by section 230. Yelp
also argued that Hassell had not given proper notice of the action to Bird, nor
connected the challenged reviews to Bird sufficiently to justify an injunction.5
Yelp requested that the default judgment be set aside and vacated in its entirety, or
4 In connection with their opposition to Yelp’s motion to set aside and vacate
the default judgment, plaintiffs supplied documentation indicating that in May
2013, their attorney sent Yelp a facsimile that included a copy of the complaint
against Bird, as well as the January 2013 and February 2013 reviews underlying
the action. Counsel’s facsimile cover letter concluded with his “expect[ation]”
that Yelp would “cause these two utterly false and unprivileged reviews to be
removed as soon as possible.”
5 After not appearing below, Ms. Bird has submitted an amicus curiae brief
to this court. In her brief, Bird acknowledges writing the January 2013 “Birdzeye
B.” review, but denies authoring the February 2013 review from “J.D.”
7
in the alternative, “modified to eliminate all provisions that compel Yelp to act in
any manner, or restrain Yelp from engaging in any conduct.”
The superior court denied the motion to set aside and vacate the judgment.
In its order denying the motion, the court quoted this court’s generic assessment
that “ ‘[i]n matters of injunction . . . it has been a common practice to make the
injunction run also to classes of persons through whom the enjoined person may
act, such as agents, servants, employees, aiders, abettors, etc., though not parties to
the action, and this practice has always been upheld by the courts.’ ” (Ross v.
Superior Court (1977) 19 Cal. 3d 899, 906.) The superior court applied this
principle to the present case because, in the court’s view, there was a “factual basis
to support Hassell’s contention that Yelp is aiding and abetting Bird’s violation of
the injunction.” As evidence of this aiding and abetting, the superior court noted
that “Yelp highlighted at least one of Bird’s defamatory reviews by featuring it as
a ‘Recommended Review,’ ” that “a litany of favorable reviews are not factored
into the Hassell Law [Group]’s star rating, appearing to give emphasis to Bird’s
defamatory review,” that Yelp was moving “to set aside the judgment in its
entirety, including the portions of the judgment that pertain only to Bird” and
otherwise was advancing arguments “on Bird’s behalf,” and that “notwithstanding
a judicial finding that Bird’s reviews are defamatory, Yelp refuses to delete them.”
Yelp appealed. It reasserted on appeal that the order, to the extent that it
commanded Yelp to remove the challenged reviews, violated the company’s due
process rights, as well as section 230. (Hassell v. Bird (2016) 247 Cal. App. 4th
1336, 1341, 1355, 1361.)6 The Court of Appeal rejected both arguments. It first
6 The Court of Appeal’s opinion also addressed several other issues not
encompassed within our grant of review. (See Hassell v. Bird, supra, 247
Cal.App.4th at pp. 1348-1354.) We express no views regarding the Court of
Appeal’s analysis of those topics. We likewise have no occasion to opine on
8
found no due process violation in allowing the injunction to run against Yelp. As
had the superior court, the Court of Appeal regarded Yelp as being among the
actors to whom the injunction could properly extend, even though it was not a
party to the proceedings that led to the injunction. (Id., at pp. 1355-1357.) The
Court of Appeal also found no merit in Yelp’s related argument that, regardless of
whether an injunction normally can run against nonparties, the injunction here
could not properly extend to it because such a reach would unduly limit the
dissemination of speech. The Court of Appeal questioned the premise of this
argument, opining that “it appears to us 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.” (Id., at p. 1358.) The Court of
Appeal also observed that in Balboa Island Village Inn, Inc. v. Lemen (2007) 40
Cal. 4th 1141, this court ruled that “ ‘an injunction issued following a trial that
determined that the defendant defamed the plaintiff that does no more than
prohibit the defendant from repeating the defamation, is not a prior restraint and
does not offend the First Amendment.’ ” (Hassell v. Bird, at p. 1360, quoting
Balboa Island, at p. 1148.) The Court of Appeal concluded that “[u]nder the
authority of Balboa Island . . . the trial court had the power to make the part of this
order requiring Yelp to remove the three specific statements . . . because the
injunction prohibiting Bird from repeating those statements was issued following a
determination at trial that those statements are defamatory.” (Id., at p. 1360.)
Turning to Yelp’s section 230 argument, the Court of Appeal recognized
that “section 230 has been construed broadly to immunize ‘providers of interactive
whether the challenged reviews are in fact defamatory, in whole or in part. Our
analysis assumes the correctness of the superior court’s determination on this
point.
9
computer services against liability arising from content created by third parties’ ”
(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1361, quoting Fair Housing Coun.,
San Fernando v. Roommates.com (9th Cir. 2008) 521 F.3d 1157, 1162, fn.
omitted), and that in Barrett v. Rosenthal (2006) 40 Cal. 4th 33 (Barrett), this court
similarly regarded section 230 as, in the words of the Court of Appeal,
“afford[ing] interactive service providers broad immunity from tort liability for
third party speech” (Hassell v. Bird, at p. 1362). The Court of Appeal further
acknowledged that “section 230 also ‘precludes courts from entertaining claims
that would place a computer service provider in a publisher’s role. Thus, lawsuits
seeking to hold a service provider liable for its exercise of a publisher’s traditional
editorial functions — such as deciding whether to publish, withdraw, postpone or
alter content — are barred.’ ” (Id., at pp. 1361-1362, quoting Zeran v. America
Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).)
The Court of Appeal nevertheless determined that section 230 does not
prohibit a directive that Yelp remove the challenged reviews. The court reasoned
that “[t]he removal order does not violate . . . section 230 because it does not
impose any liability on Yelp. In this defamation action, [plaintiffs] filed their
complaint against Bird, not Yelp; obtained a default judgment against Bird, not
Yelp; and [were] awarded damages and injunctive relief against Bird, not Yelp.”
(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1363.)
The Court of Appeal recognized that other courts (e.g., Kathleen R. v. City
of Livermore (2001) 87 Cal. App. 4th 684 (Kathleen R.); Noah v. AOL Time
Warner, Inc. (E.D.Va. 2003) 261 F. Supp. 2d 532; Smith v. Intercosmos Media
Group (E.D.La., Dec. 17, 2002, No. 02-1964) 2002 WL 31844907; Medytox
Solutions, Inc. v. Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So. 3d 727)
had construed section 230 immunity as extending to claims for injunctive relief.
(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364.) But the Court of Appeal
10
regarded those cases as inapposite because they involved situations in which
section 230 immunity had been interposed by a named party at a stage of the
proceedings when the cases merely involved allegations of improper conduct by a
third party, “and not a judicial determination that defamatory statements had, in
fact, been made by such third party on the Internet service provider’s Web site” in
a case filed against only the third party. (Hassell v. Bird, at pp. 1364-1365.) The
court also rejected the argument that the prospect of contempt sanctions would
amount to “liability” under the statute. (Id., at p. 1365.) According to the Court of
Appeal, “sanctioning Yelp for violating a court order would not implicate section
230 at all; it would not impose liability on Yelp as a publisher or distributor of
third party content.” (Ibid.)
The Court of Appeal thus affirmed the superior court’s order denying
Yelp’s motion to set aside and vacate the judgment, albeit with instructions to the
superior court to modify the order on remand so that it compelled only the removal
of the three challenged reviews. (Hassell v. Bird, supra, 247 Cal.App.4th at
pp. 1365-1366.)7 We granted review.
II. DISCUSSION
Before this court, Yelp renews the constitutional and statutory arguments it
raised before the Court of Appeal. Namely, Yelp maintains that the removal order
does not comport with due process insofar as it directs Yelp to remove the three
reviews at issue without affording prior notice and an opportunity to be heard.
Yelp also claims that this aspect of the order violates section 230 by treating it as
7 This modification owed to the Court of Appeal’s conclusion that “to the
extent the trial court additionally ordered Yelp to remove subsequent comments
that Bird or anyone else might post, the removal order is an overbroad prior
restraint on speech.” (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1360.) The
Court of Appeal therefore remanded the case “to the trial court with directions that
it modify the removal order consistent with this limitation.” (Ibid.)
11
“the publisher or speaker of . . . information provided by another information
content provider.” (§ 230(c)(1); see also § 230(e)(3).) Because the statutory
argument is dispositive, there is no need to address the due process question. (See
Loeffler v. Target Corp. (2014) 58 Cal. 4th 1081, 1102 [“[o]ur jurisprudence
directs that we avoid resolving constitutional questions if the issue may be
resolved on narrower grounds”]; Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal. 4th 220, 230-231.)
A. Section 230
Section 230 appears within the Communications Decency Act of 1996, 8
enacted as Title V of the Telecommunications Act of 1996 (Pub.L. No. 104-104,
110 Stat. 56). Congress enacted section 230 “for two basic policy reasons: to
promote the free exchange of information and ideas over the Internet and to
encourage voluntary monitoring for offensive or obscene material.” (Carafano v.
Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1122; see also Barrett,
supra, 40 Cal.4th at pp. 50-54 [reviewing the legislative history of section 230].)
One of the impetuses for section 230 was a judicial decision opining that because
an operator of Internet bulletin boards had taken an active role in policing the
content of these fora, for purposes of defamation law it could be regarded as the
“publisher” of material posted on these boards by users. (Stratton Oakmont, Inc.
v. Prodigy Services Co. (N.Y.Sup.Ct. 1995) 23 Media L.Rep. 1794 [1995 WL
323710]; see also Barrett, supra, 40 Cal.4th at pp. 50-53.)
Section 230 begins with a series of findings and policy declarations. The
findings include, “The rapidly developing array of Internet and other interactive
computer services available to individual Americans represent an extraordinary
8 Provisions of the Communications Decency Act of 1996 different from the
ones presently before the court were struck down as unconstitutional in Reno v.
American Civil Liberties Union (1997) 521 U.S. 844.
12
advance in the availability of educational and informational resources to our
citizens” (§ 230(a)(1)), and “The Internet and other interactive computer services
have flourished, to the benefit of all Americans, with a minimum of government
regulation” (§ 230(a)(4)). The policies include the goals “to promote the
continued development of the Internet and other interactive computer services and
other interactive media” (§ 230(b)(1)), and “to preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive
computer services, unfettered by Federal or State regulation” (§ 230(b)(2)).
Implementing these views, 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.” 9
Section 230(e)(3), meanwhile, relates in relevant part, “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.” Section 230 defines an “interactive computer
service” as “any information service, system, or access software provider that
provides or enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the Internet and
such systems operated or services offered by libraries or educational institutions.”
(§ 230(f)(2).) The term “information content provider,” meanwhile, “means any
person or entity that is responsible, in whole or in part, for the creation or
9 Section 230(c)(2), another immunity provision within the statute, provides,
“No provider or user of an interactive computer service shall be held liable on
account of — [¶] (A) any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected; or [¶] (B) any action
taken to enable or make available to information content providers or others the
technical means to restrict access to material described in paragraph (1).” Yelp’s
claim of immunity invokes section 230(c)(1), not section 230(c)(2).
13
development of information provided through the Internet or any other interactive
computer service.” (§ 230(f)(3).)
B. Judicial Construction of Section 230
The immunity provisions within section 230 “have been widely and
consistently interpreted to confer broad immunity against defamation liability for
those who use the Internet to publish information that originated from another
source.” (Barrett, supra, 40 Cal.4th at p. 39; accord, Doe v. MySpace, Inc. (5th
Cir. 2008) 528 F.3d 413, 418 [“[c]ourts have construed the immunity provisions in
§ 230 broadly in all cases arising from the publication of user-generated content”];
Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at p. 1123 [“reviewing courts
have treated § 230(c) immunity as quite robust”].) Although a full review of the
substantial body of case law interpreting section 230 is unnecessary to resolve this
case, an overview of certain leading decisions follows.
1. Zeran
Section 230 was the subject of an early and influential construction in
Zeran, supra, 129 F.3d 327. (See Barrett, supra, 40 Cal.4th at p. 41 [describing
Zeran as “[t]he leading case on section 230 immunity”].) The lawsuit in Zeran
involved messages posted on an America Online, Inc. (AOL) online bulletin
board. (Zeran, at p. 329.) These messages promoted t-shirts, bumper stickers, and
key chains bearing offensive content, and added that anyone interested in
purchasing one of these items should contact the plaintiff at his home phone
number. (Ibid.) As a result of these posts, the plaintiff — who in fact had no
connection to the wares — was inundated by angry phone calls, including death
threats. (Ibid.) The plaintiff subsequently brought a negligence claim against
AOL, alleging that AOL took an unreasonably long time to remove the messages,
“refused to post retractions of those messages, and failed to screen for similar
postings thereafter.” (Id., at p. 328.)
14
AOL claimed immunity under section 230. (Zeran, supra, 129 F.3d at
p. 328.) In affirming a grant of judgment on the pleadings entered in favor of
AOL on this ground (id., at p. 330), the federal court of appeals in Zeran
emphasized the broad parameters of the statutory grant of immunity. The court
observed, “By its plain language, § 230 creates a federal immunity to any cause of
action that would make service providers liable for information originating with a
third-party user of the service. Specifically, § 230 precludes courts from
entertaining claims that would place a computer service provider in a publisher’s
role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a
publisher’s traditional editorial functions — such as deciding whether to publish,
withdraw, postpone or alter content — are barred.” (Ibid.) The Zeran court
continued, “The purpose of this statutory immunity is not difficult to discern.
Congress recognized the threat that tort-based lawsuits pose to freedom of speech
in the new and burgeoning Internet medium. The imposition of tort liability on
service providers for the communications of others represented, for Congress,
simply another form of intrusive government regulation of speech. Section 230
was enacted, in part, to maintain the robust nature of Internet communication and,
accordingly, to keep government interference in the medium to a minimum.”
(Ibid.)
The plaintiff in Zeran, supra, 129 F.3d 327, argued that section 230 should
be read narrowly, so that AOL could be held liable as a “distributor” of the online
posts. (Zeran, at pp. 331-332.) In rejecting this limited view of section 230
immunity, the Zeran court stressed that if the notice-based legal standard for
defamation liability that applies to distributors of printed information was
transplanted to the Internet, it would place online intermediaries in an untenable
position. “If computer service providers were subject to distributor liability,” the
court observed, “they would face potential liability each time they receive notice
15
of a potentially defamatory statement — from any party, concerning any message.
Each notification would require a careful yet rapid investigation of the
circumstances surrounding the posted information, a legal judgment concerning
the information’s defamatory character, and an on-the-spot editorial decision
whether to risk liability by allowing the continued publication of that information.
Although this might be feasible for the traditional print publisher, the sheer
number of postings on interactive computer services would create an impossible
burden in the Internet context.” (Zeran, at p. 333.) In the same vein, the court
also stressed that “notice-based liability for interactive computer service providers
would provide third parties with a no-cost means to create the basis for future
lawsuits. Whenever one was displeased with the speech of another party
conducted over an interactive computer service, the offended party could simply
‘notify’ the relevant service provider, claiming the information to be legally
defamatory.” (Ibid.)
2. Kathleen R.
Other courts have followed Zeran in adopting a broad view of section 230’s
immunity provisions. (See Barrett, supra, 40 Cal.4th at p. 39.) Several decisions
by the Courts of Appeal of this state, for example, have advanced a similar
understanding of section 230. (See, e.g., Doe II v. MySpace Inc. (2009) 175
Cal. App. 4th 561, 567-575 [section 230 immunity applies to tort claims against a
social networking website, brought by minors who claimed that they had been
assaulted by adults they met on that website]; Delfino v. Agilent Technologies, Inc.
(2007) 145 Cal. App. 4th 790, 804-808 [section 230 immunity applies to tort claims
against an employer that operated an internal computer network used by an
employee to allegedly communicate threats against the plaintiff]; Gentry v. eBay,
Inc. (2002) 99 Cal. App. 4th 816, 828-836 [section 230 immunity applies to tort and
16
statutory claims against an auction website, brought by plaintiffs who allegedly
purchased forgeries from third party sellers on the website].)
Among the decisions of the Courts of Appeal construing section 230, the
ruling in Kathleen R., supra, 87 Cal. App. 4th 684, is particularly relevant here, for
as recognized by the Court of Appeal below, the court in Kathleen R. held that
section 230 immunity extends to claims for injunctive relief.
The plaintiff in Kathleen R., supra, 87 Cal. App. 4th 684, filed suit against a
city after her son, a minor, used computers at the city library to download sexually
explicit photos from the Internet. (Id., at p. 690.) She brought claims under state
and federal law. (Id., at p. 691.) The plaintiff sought injunctive relief in
connection with all of her causes of action, with her state-law claims seeking to
prevent the city “from acquiring or maintaining computers which allow people to
access obscenity or minors to access harmful sexual matter; from maintaining any
premises where minors have that ability; and from expending public funds on such
computers.” (Ibid.)
The court in Kathleen R., supra, 87 Cal. App. 4th 684, held that section 230
barred all of the plaintiff’s state-law claims, even insofar as they sought injunctive
relief.10 (Kathleen R., at p. 698.) In reaching this result, the court expressly
rejected the plaintiff’s position that section 230 immunity does not adhere to the
extent that a plaintiff pursues declaratory or injunctive relief, as opposed to
damages. (Kathleen R., at p. 698.) The court reasoned, “Section 230 provides
broadly that ‘[n]o cause of action may be brought and no liability may be imposed
under any State or local law that is inconsistent with this section.’ (§ 230(e)(3),
italics added.) Thus, even if for purposes of section 230 ‘liability’ means only an
award of damages [citation], the statute by its terms also precludes other causes of
10 The court in Kathleen R., supra, 87 Cal. App. 4th 684, rejected the plaintiff’s
federal claim on a different ground. (Id., at pp. 698-702.)
17
action for other forms of relief.” (Kathleen R., at p. 698.) The court also observed
that the plaintiff’s pursuit of injunctive relief, if it came to fruition, could “prevent
[the city] from providing open access to the Internet on its library computers,”
which would “contravene section 230’s stated purpose of promoting unfettered
development of the Internet no less than her damage claims.” (Ibid.)
3. Barrett
In the one prior occasion we have had to construe section 230, we, too,
have read its provisions as conferring broad immunity.
In Barrett, supra, 40 Cal. 4th 33, the plaintiffs sued for defamation after the
defendant posted copies of an assertedly libelous article on two websites. (Id., at
pp. 40-41.) The defendant had received the article from another individual via an
e-mail. (Id., at p. 41.)
In vacating an order entered by the superior court, which had granted the
defendant’s motion to strike under the anti-SLAPP statute, the Court of Appeal in
Barrett adopted the same narrow reading of the word “publisher” within section
230(c)(1) that had been rejected by the court in Zeran — i.e., it construed section
230 as being concerned only with preventing online intermediaries from being
held liable under standards applicable to publishers, while leaving distributor
liability, where appropriate, intact. In the view of the Court of Appeal in Barrett,
when the defendant in that case reposted the article she had received from another
online source, she acted as a distributor of this information. (Barrett, supra,
40 Cal.4th at p. 39.) This designation meant that the defendant could be held
liable if she distributed a defamatory statement with notice of its libelous
character. (Id., at pp. 39, 41, 44-45.)
We reversed. Our unanimous majority opinion in Barrett, supra,
40 Cal. 4th 33, rejected both the Court of Appeal’s interpretation of the term
“publisher” within section 230(c)(1), and a comparably constrained construction
18
of the term “user” within that same subsection that would distinguish between
“passive” users who could claim section 230 immunity and “active” users who
could not. (Barrett, at p. 63.) As had the Zeran court, we declined to read section
230(c)(1) as leaving Internet intermediaries subject to liability on the same terms
applicable to distributors of printed material. Instead, we endorsed as “sound”
Zeran’s construction of “publisher” (Barrett, at p. 48), and adopted a similarly
“inclusive” interpretation of that word (id., at p. 49). We observed, “the terms of
section 230(c)(1) . . . reflect the intent to promote active screening by service
providers of online content provided by others. Congress implemented its
intent . . . by broadly shielding all providers from liability for ‘publishing’
information received from third parties. Congress contemplated self-regulation,
rather than regulation compelled at the sword point of tort liability.” (Id., at p. 53,
fn. omitted.) Later, we reiterated that section 230 confers “blanket immunity from
tort liability for online republication of third party content.” (Barrett, at p. 57.)11
Our analysis in Barrett, supra, 40 Cal. 4th 33, also elaborated upon
Congress’s intent in enacting section 230, and the practical consequences
associated with a cramped construction of the statute. We explained, “It is
inaccurate to suggest that Congress was indifferent to free speech protection when
it enacted section 230,” given the statute’s many findings extolling the value of
Internet speech and evincing legislators’ interest in further development of this
forum. (Barrett, at p. 56.) We also noted that “[t]he provisions of section
230(c)(1), conferring broad immunity on Internet intermediaries, are themselves a
11 Barrett, supra, 40 Cal. 4th 33, was clear that section 230 immunity is broad
— not all-encompassing. We recognized, for example, that “[a]t some point,
active involvement in the creation of a defamatory Internet posting would expose
[an otherwise immunized] defendant to liability as an original source.” (Barrett, at
p. 60, fn. 19; see also § 230(e)(1), (2), (4), (5) [describing areas of the law as to
which section 230 immunity has no effect].)
19
strong demonstration of legislative commitment to the value of maintaining a free
market for online expression.” (Ibid.) A limited construction of section 230
would conflict with Congress’s goal of facilitating online discourse, we observed,
because “subjecting Internet service providers and users to defamation liability”
for the republication of online content — even under the standards applicable to
distributors — “would tend to chill online speech.” (Barrett, at p. 56, citing
Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at pp. 1123-1124, Batzel v.
Smith (9th Cir. 2003) 333 F.3d 1018, 1027-1028, Noah v. AOL Time Warner, Inc.,
supra, 261 F.Supp.2d at p. 538, Blumenthal v. Drudge (D.D.C. 1998) 992 F. Supp.
44, 52, Donato v. Moldow (N.J.Super.Ct.App.Div. 2005) 865 A.2d 711, 726.)
This chilling effect could materialize for reasons including the fact that “[a]ny
investigation of a potentially defamatory Internet posting is . . . a daunting and
expensive challenge.” (Id., at p. 57.)
In closing, our opinion in Barrett, supra, 40 Cal. 4th 33, voiced some
qualms about the result it reached. It explained that “[w]e share the concerns of
those who have expressed reservations about the Zeran court’s broad
interpretation of section 230 immunity. The prospect of blanket immunity for
those who intentionally redistribute defamatory statements on the Internet has
disturbing implications.” (Id., at pp. 62-63.) But, we added, these concerns were
of no legal consequence, because the tools of statutory interpretation compelled a
broad construction of section 230. (Barrett, at p. 63.)
C. Analysis
In construing section 230, we apply our standard approach to statutory
interpretation. “ ‘When we interpret a statute, “[o]ur fundamental task . . . is to
determine the Legislature’s intent so as to effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and commonsense meaning. We
do not examine that language in isolation, but in the context of the statutory
20
framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the statutory language
permits more than one reasonable interpretation, courts may consider other aids,
such as the statute’s purpose, legislative history, and public policy.” [Citation.]
“Furthermore, we consider portions of a statute in the context of the entire statute
and the statutory scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the legislative
purpose.” ’ [Citation.]” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608,
616-617.)
Our analysis of the statute begins with an uncontroversial observation:
Yelp could have promptly sought and received section 230 immunity had
plaintiffs originally named it as a defendant in this case. There is no doubt that
Yelp is a “provider or user of an interactive computer service” within the meaning
of section 230(c)(1) (see Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096,
1101 [concluding that as an operator of a website, Yahoo acts as a provider of an
interactive computer service]), or that the substance of the reviews was provided
to Yelp by “another information content provider” (§ 230(c)(1); see Shiamili v.
Real Estate Group of New York, Inc. (N.Y. 2011) 952 N.E.2d 1011, 1019-1020).
Had plaintiffs’ claims for defamation, intentional infliction of emotional distress,
and false light been alleged directly against Yelp, these theories would be readily
understood as treating Yelp as the “publisher or speaker” of the challenged
reviews. (See, e.g., Barrett, supra, 40 Cal.4th at p. 63 [section 230 applies to
claims for defamation]; Bennett v. Google, LLC (D.C. Cir. 2018) 882 F.3d 1163,
1164, 1169 [section 230 applies to claims for intentional infliction of emotional
distress]; Jones v. Dirty World Entertainment Recordings LLC (6th Cir. 2014) 755
21
F.3d 398, 402, 417 [section 230 applies to claims for defamation, intentional
infliction of emotional distress, and false light].) This immunity, moreover, would
have shielded Yelp from the injunctive relief that plaintiffs seek. (See Kathleen
R., supra, 87 Cal.App.4th at p. 687; Noah v. AOL Time Warner, Inc., supra, 261
F.Supp.2d at pp. 539-540; Smith v. Intercosmos Media Group, Inc., supra, 2002
WL 31844907 at pp. *4-*5; Medytox Solutions, Inc. v. Investorshub.com, Inc.,
supra, 152 So.3d at p. 731.)
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.
Even though plaintiffs did not name Yelp as a defendant, their action
ultimately treats it as “the publisher or speaker of . . . information provided by
another information content provider.” (§ 230(c)(1).) 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. (See Barrett, supra, 40 Cal.4th at pp.
48, 53; Zeran, supra, 129 F.3d at p. 330 [under section 230, “lawsuits seeking to
hold a service provider liable for its exercise of a publisher’s traditional editorial
functions — such as deciding whether to publish, withdraw, postpone or alter
content — are barred”]; Medytox Solutions, Inc. v. Investorshub.com, Inc., supra,
152 So.3d at p. 731 [“[a]n action to force a website to remove content on the sole
22
basis that the content is defamatory is necessarily treating the website as a
publisher, and is therefore inconsistent with section 230”].)12
Plaintiffs assert in their briefing that “Yelp’s duty to comply [with the
removal order] does not arise from its status as a publisher or speaker, but as a
party through whom the court must enforce its order.” To plaintiffs, “the removal
order simply prohibits Yelp from continuing to be the conduit through which Bird
violates her injunction.” Just as other courts have rebuffed attempts to avoid
section 230 through the “creative pleading” of barred claims (Kimzey v. Yelp! Inc.
(9th Cir. 2016) 836 F.3d 1263, 1266), we are not persuaded by plaintiffs’
description of the situation before the court. It is true that plaintiffs obtained a
default judgment and injunction in a lawsuit that named only Bird as a defendant.
12 Although not directly pertinent to this case, we observe that in another
instance where Congress became aware of procedural end-runs around section
230, it took steps to rein in these practices — instead of regarding a judgment so
obtained as a fait accompli that must be enforced, without further consideration of
the circumstances surrounding it.
Specifically, in 2010 Congress enacted the Securing the Protection of Our
Enduring and Established Constitutional Heritage Act (SPEECH Act), 28 U.S.C.
§ 4101 et seq. This measure responded to concerns that defamation judgments
were being obtained in countries that did not recognize the same free-speech
protections as those provided in the United States, “significantly chilling
American free speech and restricting both domestic and worldwide access to
important information” in the United States. (Sen.Rep. No. 111-224, 2d Sess., p. 2
(2010).)
To combat forum shopping and “ensure that American authors, reporters,
and publishers have nationwide protection from foreign libel judgments”
(Sen.Rep. No. 111-224, supra, at p. 2), the SPEECH Act includes provisions such
as one providing that “[n]otwithstanding any other provision of Federal or State
law, a domestic court shall not recognize or enforce a foreign judgment for
defamation against the provider of an interactive computer service, as defined in
section 230 of the Communications Act of 1934 (47 U.S.C. [§] 230) unless the
domestic court determines that the judgment would be consistent with section 230
if the information that is the subject of such judgment had been provided in the
United States.” (28 U.S.C. § 4102(c)(1).)
23
And it is also true that as a general rule, when an injunction has been obtained,
certain nonparties may be required to comply with its terms. (See, e.g., Ross v.
Superior Court, supra, 19 Cal.3d at p. 906.) But this principle does not supplant
the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have
the responsibility to comply with court orders, including injunctions. But 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). (Cf. Giordano v. Romeo (Fla.Dist.Ct.App. 2011)
76 So. 3d 1100, 1102 [recognizing that an online intermediary may claim section
230 immunity from injunctive relief associated with a defamation claim,
notwithstanding a lower-court determination that at least part of the challenged
online post was defamatory].) In substance, Yelp is being held to account for
nothing more than its ongoing decision to publish the challenged reviews. Despite
plaintiffs’ generic description of the obligation they would impose on Yelp, in this
case this duty is squarely derived from “the mere existence of the very relationship
that Congress immunized from suit.” (Klayman v. Zuckerberg (D.C. Cir. 2014)
753 F.3d 1354, 1360.)13
At the same time, we recognize that not all legal duties owed by Internet
intermediaries necessarily treat them as the publishers of third party content, even
when these obligations are in some way associated with their publication of this
13 In arguing that section 230 immunity should not apply, Justice Liu
emphasizes that here there was a judicial determination — albeit through an
uncontested proceeding — that the challenged reviews are defamatory. (Dis. opn.
of Liu, J., post, at pp. 2-3.) We recognize that in applying section 230 a distinction
could, in theory, be drawn between situations in which an injunction (or its
extension to a nonparty) follows from a judicial finding of some kind, and
scenarios where there has been no such determination. But we see no persuasive
indication that this is a distinction Congress wanted courts to regard as decisive in
circumstances such as these. (Accord, Giordano v. Romeo, supra, 76 So.3d at
p. 1102.)
24
material. (See, e.g., Barnes v. Yahoo!, Inc., supra, 570 F.3d at p. 1107 [regarding
section 230 immunity as inapplicable to a claim of promissory estoppel alleging
that an Internet intermediary promised to remove offensive content].) In this case,
however, Yelp is inherently being treated as the publisher of the challenged
reviews, and it has not engaged in conduct that would take it outside section 230’s
purview in connection with the removal order. 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.
In his dissent, Justice Cuéllar argues that even if the injunction cannot on its
face command Yelp to remove the reviews, the removal order nevertheless could
run to Yelp through Bird under an aiding and abetting theory premised on conduct
that remains inherently that of a publisher. (See dis. opn. of Cuéllar, J., post, at
pp. 3, 20-22, 34-37.) We disagree. As applied to such behavior, Justice Cuéllar’s
approach would simply substitute one end-run around section 230 immunity for
another. (Accord, Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 568.) As
for the other scenarios involving materially different types of conduct that Justice
Cuéllar might hypothesize, such as conspiracies between a named party and an
Internet republisher who has not been named as a party, it suffices for now to say
that they are not before this court, and we have no occasion to consider whether
they could lead to some remedy vis-à-vis the republisher.14
14 As previously noted, when the trial court denied Yelp’s motion to set aside
and vacate the judgment, it emphasized several facts that, in the court’s opinion,
indicated Yelp was aiding and abetting Bird’s violation of the injunction. The
court observed that Yelp had featured at least one of Bird’s defamatory reviews as
a “Recommended Review”; that Yelp had not factored some positive reviews into
the Hassell Law Group’s overall rating; that Yelp had raised arguments in
connection with its motion that would invalidate the judgment entirely, as opposed
to merely the portion of the removal order specifically directed at it; and that Yelp
25
Plaintiffs also assert that Yelp cannot claim section 230 immunity because,
under section 230(e)(3), no “cause of action” has been alleged directly against it as
a defendant, and in their view making Yelp subject to an injunction does not
amount to the imposition of “liability.” This argument reads constraining force
into the language within section 230(e)(3) that provides, “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.” This phrasing does not provide strong support for,
much less compel, plaintiffs’ construction. Section 230(e)(3) does not expressly
demand that a cause of action always must be alleged directly against an Internet
intermediary as a named defendant for the republisher to claim immunity under
the statute. And in common legal parlance at the time of section 230’s enactment,
“liability” could encompass more than merely the imposition of damages. (See
Black’s Law Dict. (6th ed. 1990) p. 914 [defining “liability” as “a broad legal
term” that “has been referred to as of the most comprehensive significance,
refused to remove the reviews at issue, “notwithstanding a judicial finding that
Bird’s reviews are defamatory.”
Even though it upheld the removal order in most respects, the Court of
Appeal did not rely on an aiding and abetting theory to justify the extension of the
injunction to Yelp. (See Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364.) We
expressly reject the argument, offered by Justice Cuéllar in his dissent (dis. opn. of
Cuéllar, J., post, at p. 35), 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. (See, e.g., Jones v.
Dirty World Entertainment Recordings LLC, supra, 755 F.3d at pp. 414-415.)
Meanwhile, we do not regard the letter relating the basis for Yelp’s decision, or
Yelp’s failure to make only pinpoint challenges to the injunction in court, as
somehow transforming the company into something other than a publisher of third
party content for purposes of the removal order. Section 230 immunity is not that
fragile.
26
including almost every character of hazard or responsibility, absolute, contingent,
or likely”].)15
Even more fundamentally, plaintiffs’ interpretation misses the forest for the
trees. 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.”
(See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) 591 F.3d
250, 254 [section 230 is not just a “ ‘defense to liability’ ”; it instead confers
“ ‘immunity from suit’ ” (italics omitted)]; Medytox Solutions, Inc. v.
Investorshub.com, Inc., supra, 152 So.3d at p. 731.) 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. (See Barrett, supra, 40
Cal.4th at pp. 53, 56, 57; Barnes v. Yahoo!, Inc., supra, 570 F.3d at pp. 1101-
1102; Zeran, supra, 129 F.3d at p. 330.) As evidenced by section 230’s findings,
Congress believed that this targeted protection for republishers of online content
15 Justice Cuéllar would define “liability” within section 230(e)(3) as “a
financial or legal obligation.” (Dis. opn. of Cuéllar, J., post, at p. 11.) His
dissenting opinion then proceeds as if the broad word “legal” within this very
definition is irrelevant. This oversight is in a sense understandable, because,
inconveniently, plaintiffs absolutely regard Yelp as having a “legal obligation” to
comply with the removal order.
Yet Justice Cuéllar’s equation of “liability” under section 230(e)(3) with
only financial obligations raises other questions that cannot be satisfactorily
answered. Among them, if “liability” involves only financial debts, it is unclear
why Congress recently felt the need to exclude from section 230 immunity certain
state-law criminal actions associated with sex trafficking. (§ 230(e)(5)(B), (C).)
27
would facilitate the ongoing development of the Internet. (See § 230(a)(1), (a)(4),
(b)(1), (b)(2).)
These interests are squarely implicated in this case. 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. (See Noah v. AOL Time Warner, Inc., supra, 261 F.Supp.2d at
p. 540 [“in some circumstances injunctive relief will be at least as burdensome to
the service provider as damages, and is typically more intrusive”].) 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. (See Barrett, supra, 40 Cal.4th at p. 57.) 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.16
16 There are numerous reasons why a removal order that appears facially valid
may nevertheless be challenged by an Internet intermediary as illegitimate. As
detailed in the amicus curiae brief submitted by Professor Eugene Volokh, a
document that purports to represent a proper removal order might have been
fraudulently obtained, secured after only meager attempts at service, or represent a
forgery. A removal order also may be overbroad (as Bird claims to be the case
here), or otherwise inaccurate or misleading.
Professor Volokh’s brief incorporates a request for judicial notice of court
filings that assertedly illustrate these concerns. We denied this request for judicial
notice by a separate order. Formal notice is unnecessary to recognize the basic
point being made — to wit, that plaintiffs’ position, if accepted, would open the
door to fraud and to sharp litigating tactics. (See People v. Acosta (2002) 29
Cal. 4th 105, 119, fn. 5 [denying a request for judicial notice of case files because
such notice “is not necessary . . . to envision” the general circumstances evinced in
the cases].)
28
To summarize, we conclude that 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.17
The dissents see this case quite differently. The dissenting justices would
endorse plaintiffs’ gambit as consistent with Congress’s intent in enacting section
230. We disagree on several levels with the dissents’ construction of section
230.18 The narrow, grudging view of section 230’s immunity provisions advanced
in both dissents is at odds with this court’s analysis in Barrett, and for that matter
with the views of virtually all courts that have construed section 230. Although
Justice Cuéllar, in his dissent, repeatedly suggests that Yelp somehow improperly
or prematurely injected itself into this action in a manner material to the necessary
analysis (e.g., dis. opn. of Cuéllar, J., post, at pp. 6, 25, 26), with this case’s
17 Other shortcomings of plaintiffs’ approach further expose it as something
quite different from what Congress intended. These include the fact that even if it
were accepted, plaintiffs’ vehicle for avoiding section 230 immunity would offer
no remedy for those wronged by authors who write anonymously or using a
pseudonym, and whose identities cannot be ascertained through third party
discovery in cases filed against Doe defendants. For in those instances, no
judgments, default or otherwise, could be obtained against the authors. (See Code
Civ. Proc., § 474; Flythe v. Solomon and Straus, LLC (E.D.Pa., June 8, 2011, No.
09-6120) 2011 WL 2314391 at *1 [“default judgments cannot be entered against
unnamed or fictitious parties because they have not been properly served”].)
18 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.” (People v. Caballero (2012) 55
Cal. 4th 262, 271 (conc. opn. of Werdegar, J.).)
29
unusual litigation posture — which was engineered by plaintiffs, not Yelp — it
was perfectly appropriate for Yelp to seek clarification of its legal obligations
before plaintiffs chose to initiate contempt proceedings against it. Additionally,
although the dispositive nature of Yelp’s section 230 argument makes it
unnecessary to dwell on the due process concerns addressed by Justice Kruger in
her concurring opinion (see generally conc. opn. of Kruger, J., post), at a bare
minimum we find it troubling that the dissents’ approach, if it were the law, could
create unfortunate incentives for plaintiffs to provide little or no prejudgment
notice to persons or entities that could assert immunity as defendants. A plaintiff
might reason that if even informal notice were provided, a nonparty republisher
might seek to intervene as a defendant and claim immunity prior to the entry of
judgment.19
Perhaps 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
19 Justice Cuéllar’s dissenting opinion could be construed as allowing an
injunction that on its face runs only against a party to be enforced, via a feeble
aiding and abetting theory, against a different person or entity that also had been
named as a party, but had successfully invoked section 230 immunity prior to the
entry of judgment. (See, e.g., dis. opn. of Cuéllar, J., post, at pp. 34-37.) If that
were the law, Justice Cuéllar would be correct that the incentive to intervene might
be dampened because the invocation of section 230 immunity might have little
practical effect in the long run. But it is not the law.
30
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 (id., at p. 691), 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.
For almost two decades, courts have been relying on section 230 to deny
plaintiffs injunctive relief when their claims inherently treat an Internet
intermediary as a publisher or speaker of third party conduct. Certainly in some
instances where immunity has been recognized prior to judgment, the plaintiff was
in fact defamed or otherwise suffered tortious harm susceptible to being remedied
through an injunction. Yet Congress has declined to amend section 230 to
authorize injunctive relief against mere republishers, even as it has limited
immunity in other ways. (See Pub.L.No. 115-164, §4 (April 11, 2018) 132 Stat.
1253 [amending section 230 to add section 230(e)(5), clarifying that immunity
does not apply to certain civil claims and criminal actions associated with sex
trafficking].) Although this acquiescence is not itself determinative, it provides a
final indication that the dissenting justices are simply substituting their judgment
for that of Congress regarding what amounts to good policy with regard to online
speech. But that is not our role.
Even as we conclude that Yelp is entitled to immunity, we echo Barrett,
supra, 40 Cal. 4th 33, in emphasizing that our reasoning and result do not connote
31
a lack of sympathy for those who may have been defamed on the Internet.
(Barrett, at p. 63.) Nevertheless, on this record it is clear that plaintiffs’ legal
remedies lie solely against Bird, and cannot extend — even through an injunction
— to Yelp.
On this last point, we observe that plaintiffs still have powerful, if
uninvoked, remedies available to them. Our decision today leaves plaintiffs’
judgment intact insofar as it imposes obligations on Bird. Even though neither
plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment
requires Bird to undertake, at a minimum, reasonable efforts to secure the removal
of her posts. A failure to comply with a lawful court order is a form of civil
contempt (Code Civ. Proc., §1209, subd. (a)(5)), the consequences of which can
include imprisonment (see In re Young (1995) 9 Cal. 4th 1052, 1054). Much of the
dissents’ rhetoric regarding the perceived injustice of today’s decision assumes
that plaintiffs’ remaining remedies will be ineffective. One might more readily
conclude that the prospect of contempt sanctions would resonate with a party who,
although not appearing below, has now taken the step of filing an amicus curiae
brief with this court.
32
III. DISPOSITION
For the foregoing reasons, section 230 immunity applies here. We
therefore reverse the judgment of the Court of Appeal insofar as it affirmed the
trial court’s denial of Yelp’s motion to set aside and vacate the judgment. That
motion should have been granted to the extent that it sought to delete from the
order issued upon entry of the default judgment any requirement that Yelp
remove the challenged reviews or subsequent comments of the reviewers. The
cause is remanded for further proceedings as appropriate in light of this court’s
disposition.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
CHIN, J.
CORRIGAN, J.
33
CONCURRING OPINION BY KRUGER, J.
I concur in the judgment. I agree with the plurality opinion that the
injunction against Yelp Inc. (Yelp) is invalid, but I begin with a more basic reason.
Yelp is not a party to this litigation, and the courts’ power to order people to do (or
to refrain from doing) things is generally limited to the parties in the case.
Although there are qualifications to the rule, there is no exception that permits the
sort of order we confront here: an order directing a nonparty website operator to
remove third party user content just in case the user defaults on her own legal
obligation to remove it. Before Yelp can be compelled to remove content from its
website, the company is entitled to its own day in court.
The plurality opinion instead concludes the injunction is invalid because it
violates section 230 of title 47 of the United States Code, part of the federal
Communications Decency Act of 1996 (Pub.L. No. 104-104 (Feb. 8, 1996) 110
Stat. 56; hereafter section 230), a statute that bars civil suit against website
operators like Yelp for permitting third parties to post content on their sites.
Although I believe it is unnecessary to reach the issue, 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. I express no view on how section 230 might apply to a different
request for injunctive relief based on different justifications.
1
I.
A.
Although the plurality opinion begins its analysis with the special immunity
conferred on interactive computer service providers in section 230, I would begin
with legal principles of considerably older vintage. It is an “elementary common
law principle of jurisprudence”—followed in California, as elsewhere—that “a
judgment may not be entered either for or against one not a party to an action or
proceeding.” (Fazzi v. Peters (1968) 68 Cal. 2d 590, 594.) A court’s power is
limited to adjudicating disputes between persons who have been designated as
parties or made parties by service of process; it has “no power to adjudicate a
personal claim or obligation unless it has jurisdiction over the person of the
defendant.” (Zenith Corp. v. Hazeltine (1969) 395 U.S. 100, 110 (Zenith).) This
common law principle is backed by the Constitution’s guarantee of procedural
fairness—a guarantee that, at its core, entitles persons to meaningful notice and
opportunity to be heard before a court fixes their legal rights and responsibilities.
(Hansberry v. Lee (1940) 311 U.S. 32, 40.)
Consistent with this principle, courts have long observed a general rule
against entering injunctions against nonparties. An injunction is a “ ‘personal
decree’ ” that “ ‘operates on the person of the defendant by commanding him to do
or desist from certain action’ ” as a remedy for violations or threatened violations
of the law. (Comfort v. Comfort (1941) 17 Cal. 2d 736, 741.) More than a century
ago, the United States Supreme Court invalidated an injunction enjoining
nonparties, explaining: “[W]e do not think it comports with well-settled principles
of equity procedure to include [nonparties] in an injunction in a suit in which they
were not heard or represented, or to subject them to penalties for contempt in
disregarding such an injunction.” (Scott v. Donald (1897) 165 U.S. 107, 117.)
Some decades later, the high court again invalidated an injunction as “clearly
erroneous” insofar as it “assumed to make punishable as a contempt the conduct of
persons who act independently and whose rights have not been adjudged
2
according to law.” (Chase National Bank v. Norwalk (1934) 291 U.S. 431, 436–
437, fn. omitted.) And again, in Zenith, supra, 395 U.S. at page 110, the high
court ruled that the district court had erred in entering an injunction against an
entity (there, the parent company of the named defendant) that “was not named as
a party, was never served and did not formally appear at the trial.”
Judge Learned Hand, in an oft-cited statement of the rule, explained its
logic in this way: “[N]o court can make a decree which will bind any one but a
party; a court of equity is as much so limited as a court of law; it cannot lawfully
enjoin the world at large, no matter how broadly it words its decree. If it assumes
to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free
to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its
jurisdiction is limited to those over whom it gets personal service, and who
therefore can have their day in court.” (Alemite Mfg. Corp. v. Staff (2d Cir. 1930)
42 F.2d 832, 832–833 (Alemite).) The court in Alemite held that the district court
had no power to issue an injunction against a former employee of the defendant
because the former employee was not a party to the underlying action. (Ibid.)
California courts, employing the same general principle, have reached similar
conclusions in a variety of other scenarios. (People ex rel. Gwinn v. Kothari
(2000) 83 Cal. App. 4th 759, 769 [“ ‘The courts . . . may not grant an . . . injunction
so broad as to make punishable the conduct of persons who act independently and
whose rights have not been adjudged according to law.’ ”]; People v. Conrad
(1997) 55 Cal. App. 4th 896, 902 (Conrad) [“Injunctions are not effective against
the world at large.”].)
As all these authorities have recognized, while the law generally forbids
courts from naming nonparties, the law does in certain circumstances permit a
court to enforce an injunction against a nonparty. Without such a rule, enjoined
parties could “play jurisdictional ‘shell games’ ”; that is, they could “nullify an
injunctive decree by carrying out prohibited acts with or through nonparties to the
original proceeding.” (Conrad, supra, 55 Cal.App.4th at p. 902.) For that reason,
3
as this court observed more than a century ago, even though injunctions
“[o]rdinarily” run only to the named parties in an action, it is “common practice to
make the injunction run also to classes of persons through whom the enjoined
party may act, such as agents, servants, employees, aiders, abetters, etc., though
not parties to the action.” (Berger v. Superior Court (1917) 175 Cal. 719, 721
(Berger).) “[S]uch parties violating its terms with notice thereof are held guilty of
contempt for disobedience of the judgment.” (Ibid.; accord, e.g., Regal Knitwear
Co. v. Board (1945) 324 U.S. 9, 14.)
But under this general rule, while nonparties may be barred from acting on
behalf of, or in concert with, a defendant in violating an injunction, they may not
be barred from acting independently. The “whole effect” of the practice, we
explained in Berger, “is simply to make the injunction effectual against all through
whom the enjoined party may act, and to prevent the prohibited action by persons
acting in concert with or in support of the claim of the enjoined party, who are in
fact his aiders and abetters.” (Berger, supra, 175 Cal. at p. 721.) Put differently,
the practice permits a court to punish a nonparty for violating an injunction only
“when he has helped to bring about, not merely what the decree has forbidden,
because it may have gone too far, but what it has power to forbid, an act of a
party.” (Alemite, supra, 42 F.2d at p. 833, italics added.) To extend the court’s
power beyond this point would authorize a court in effect to impose judgment
without hearing, a result at odds with basic notions of procedural fairness.
B.
In the litigation underlying this appeal, plaintiffs sued defendant Ava Bird
for posting allegedly defamatory reviews on Yelp. Bird did not respond, and after
a prove-up hearing (Code Civ. Proc., § 585, subd. (b)), the trial court entered a
default judgment against her. In addition to awarding other relief, the trial court
ordered Bird to remove the offending reviews from Yelp. And then, apparently as
4
backup, the trial court ordered Yelp to do the same. 1 Until this point, Yelp was a
stranger to the litigation; it had neither been named as a party nor served with
process. And although plaintiffs had previously sent Yelp a copy of the
complaint, the complaint neither named Yelp as a party defendant nor notified
Yelp of their plans to seek injunctive relief against it. Unsurprisingly, then, Yelp
did not participate in the proceedings. It did not learn of the injunction until
plaintiffs served it with the court order.
When Yelp was served, it promptly filed a motion to set aside and vacate
the judgment. It argued, among other things, that the issuance of the injunction
against it violated both due process and section 230. The trial court denied the
motion. It reasoned that the injunction against Yelp was proper because Yelp is
aiding and abetting Bird’s violation of the injunction by, among other things,
1 In full, the trial court’s order reads:
Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA
BIRD is ordered to remove each and every defamatory review
published or caused to be published by her about plaintiffs HASSELL
LAW GROUP and DAWN HASSELL from Yelp.com and from
anywhere else they appear on the internet within 5 business days of
the date of the court’s order.
Defendant AVA BIRD, her agents, officers, employees or
representatives, or anyone acting on her behalf, are further enjoined
from publishing or causing to be published any written reviews,
commentary, or descriptions of DAWN HASSELL or the HASSELL
LAW GROUP on Yelp.com or any other internet location or website.
Yelp.com is ordered to remove all reviews posted by AVA BIRD
under user names “Birdzeye B.” and “J.D.” attached hereto as Exhibit
A and any subsequent comments of these reviewers within 7 business
days of the date of the court’s order.
As the plurality opinion explains, we are here concerned only with the
validity of the third paragraph of the order insofar as it requires Yelp to remove
specified reviews from its website.
5
allowing the reviews to remain posted on the website. The Court of Appeal
affirmed in pertinent part, though it pointedly declined to rely on the trial court’s
findings that Yelp was aiding and abetting Bird’s noncompliance. The trial
court’s aiding and abetting findings, the Court of Appeal ruled, were “premature”
and “also potentially improper to the extent proceedings were conducted without
the procedural safeguards attendant to a contempt proceeding.” (Hassell v. Bird
(2016) 247 Cal. App. 4th 1336, 1354 (Hassell).) Instead, relying on Berger and
subsequent cases, the court reasoned that the trial court has “the power to fashion
an injunctive decree so that the enjoined party may not nullify it by carrying out
the prohibited acts with or through a nonparty to the original proceeding,” and thus
also has the power to direct Yelp “to effectuate the injunction against Bird.”
(Hassell, at pp. 1356–1357.)
The Court of Appeal’s reasoning reflects a misunderstanding of the scope
of the trial court’s power to enjoin a nonparty. The common law rule described in
Berger would have permitted the court to forbid Yelp and others from acting in
concert with Bird, or on Bird’s behalf, to violate the court’s injunction against
Bird. This is what it means to bind individuals “with or through” whom the
enjoined party acts. (Conrad, supra, 55 Cal.App.4th at p. 902.) But because Yelp
was not a party to the case, it could not, consistent with the common law rule, be
enjoined “from engaging in independent conduct with respect to the subject matter
of th[e] suit.” (Additive Controls & Measurement Sys. v. Flowdata (Fed.Cir.
1996) 96 F.3d 1390, 1395.) Here, the injunction expressly names Yelp and
“impose[s] obligations directly on [it].” (Ibid.) The injunction requires Yelp to
take action, regardless of whether it acts independently of or in concert with Bird
in failing to remove the challenged reviews, and “to that extent is in error.”
(Ibid.)2
2 Justice Liu disputes the characterization; he argues that the injunction at
issue does not forbid Yelp from engaging in independent conduct with respect to
6
Plaintiffs, as well as Justice Liu, argue that the injunction naming Yelp is
valid because it merely makes explicit that Yelp, as an entity “through” whom
Bird acts, is obligated to carry out the injunction on her behalf. (Dis. opn. of Liu,
J., post, at pp. 4–6.) But the trial court made no finding that Bird acts, or has ever
acted, “through” Yelp in the sense relevant under Berger, nor does the record
contain any such indication; we have no facts before us to suggest that Yelp is
Bird’s “agent” or “servant.” (Berger, supra, 175 Cal. at p. 720.) It is true and
undisputed, as plaintiffs and Justice Liu emphasize, that Bird’s statements were
posted on Yelp’s website with Yelp’s permission. (Dis. opn. of Liu, J., post, at
p. 6.) And as a practical matter, Yelp has the technological ability to remove the
reviews from the site. These facts might well add up (at least absent section 230)
to a good argument for filing suit against Yelp and seeking an injunctive remedy
in the ordinary course of litigation. But the question presented here is whether
these facts 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. Without more, I do not see how they could.
(Cf., e.g., Paramount Pictures Corp. v. Carol Pub. Group, Inc. (S.D.N.Y. 1998)
25 F. Supp. 2d 372, 375–376 (Paramount Pictures) [denying request to expand the
scope of copyright infringement injunction to nonparties merely because the
nonparties’ conduct “ ‘ may well be found [to render them] directly liable for
copyright infringement’ ”].)3
the subject matter of this lawsuit. (Dis. opn. of Liu, J., post, at pp. 4–5.) But of
course it does: The order requires Yelp to remove Bird’s reviews even if, acting
entirely independently of Bird, and “solely in pursuit of [its] own interests” (U.S.
v. Hall (5th Cir. 1972) 472 F.2d 261, 264), Yelp chooses not to (thus potentially
incurring its own defamation liability).
3 I would note, moreover, that if the trial court had relied on the existence of
an agency (or agency-like) relationship as a basis for issuing an injunction directly
against Yelp, the company would have been entitled to notice and an opportunity
to be heard on that issue. (See Zenith, supra, 395 U.S. at p. 111 [invalidating
7
The nature of the injunction, as well as the relationship between Yelp and
Bird, distinguishes this case from Ross v. Superior Court (1977) 19 Cal. 3d 899
(Ross), on which the Court of Appeal relied. In Ross, an injunction was issued
against state officials and their agents, requiring payment of welfare benefits that
had been improperly withheld. Although state officials had ordered the counties
administering the benefits to make the payments as the injunction required, one
county’s board of supervisors refused and contempt proceedings were brought
against them. The supervisors argued that they could not be bound by the
injunction because they were not parties to the underlying action in which the
injunction was issued. (Id. at pp. 902–903.) This court rejected the argument,
explaining that, by statute, counties act on behalf of the state in administering
welfare benefits, and thus are bound to carry out an order against the state
concerning the administration of the benefits. (Id. at pp. 905–909.) In so holding,
the court relied on In re Lennon (1897) 166 U.S. 548, in which the high court held
in contempt a railway employee who refused to move cars of the defendant
railway to comply with an injunction against the defendant, despite the
defendant’s order to do so. (See Ross, at p. 905.)
injunction premised on parent company’s status as “alter ego” of the defendant,
where parent company had no opportunity to be heard].) Yelp received neither.
Justice Liu argues that the injunction against Yelp was properly entered
based on its “relationship to Bird’s tortious conduct,” but notes that Yelp “may
yet” raise arguments to the contrary in a contempt proceeding. (Dis. opn. of
Liu, J., post, at p. 9.) Here, Justice Liu appears to allude to the fact that in
California (unlike some other jurisdictions) a person to whom an injunction
applies is not barred from collaterally attacking the injunction’s validity in a
contempt proceeding. (People v. Gonzalez (1996) 12 Cal. 4th 804, 818
(Gonzalez).) This rule does mean that Yelp would have an opportunity to litigate
its status as agent or aider and abettor of Bird’s noncompliance if the removal
order were to stand. But the opportunity to collaterally attack the injunction could
not, of course, make up for the court’s issuance of an overbroad injunction in the
first instance.
8
The Court of Appeal appeared to read Ross to mean that a trial court has
broad power to enjoin a nonparty with the practical ability to “effectuate” an
injunction entered against a party. (Hassell, supra, 247 Cal.App.4th at p. 1355.)
But Ross (like Lennon before it) stands for a far more limited proposition: A
party’s agent or servant, acting in his or her capacity as an agent or servant, is
bound to comply with an injunction against the party. This is because the acts of
the agent are imputed to the party; the agent’s failure to act as the law demands is
the party’s failure, and it thus falls within the scope of the court’s power to punish.
The same is not, however, true of an individual who acts independently. The law
draws this distinction, as Judge Hand explained of Lennon, “for it is not the act
described which the decree may forbid, but only that act when the defendant does
it.” (Alemite, supra, 42 F.2d at p. 833, italics added.) The nonparty who
independently does, or fails to do, what the decree commands is entitled to his or
her own day in court.
C.
Although plaintiffs, like the Court of Appeal, rely largely on a rule
concerning a trial court’s power to forbid parties from nullifying an injunctive
decree by carrying out prohibited acts through nonparties, their real concern does
not appear to be that Bird is using or will use Yelp as a pawn to play
“jurisdictional ‘shell games.’ ” (Conrad, supra, 55 Cal.App.4th at p. 902.) Their
concern instead appears to be that Bird will simply ignore the injunction—all on
her own—and the offending reviews will remain visible unless and until Yelp
takes independent action.
The concern is a substantial one, but the usual remedy for such concerns is
to sue for a determination of the third party’s legal obligation to do as plaintiffs
wish. Plaintiffs have identified no instance in which a court has upheld the
issuance of an injunction against a nonparty under remotely similar circumstances.
Perhaps the closest plaintiffs have come is U.S. v. Hall, supra, 472 F.2d 261, in
which a federal court of appeals upheld the criminal contempt conviction of a
9
nonparty for interference with the operation of a school campus for purposes of
obstructing implementation of a desegregation order. The nonparty’s actions, the
court explained, “imperiled the court’s fundamental power to make a binding
adjudication between the parties properly before it.” (Id. at p. 265.) But the
court’s holding in that case turned on the nonparty’s willful obstruction of the
defendant’s compliance with the court’s judgment. (Ibid. [distinguishing Alemite
and Chase National Bank]; see also U.S. v. Paccione (2d Cir. 1992) 964 F.2d
1269, 1275 [similarly distinguishing Alemite because the case before it “dealt with
a person who interfered with the res, the disposition of which the district court had
specifically restricted, and who consciously impeded the rights, obligations and
efforts of the parties bound by the court’s order from attempting to comply with
valid court orders”]; see generally Rest.2d Judgments, § 63 [discussing duty not to
obstruct compliance with court judgment].) In this case, there is no argument that
Yelp is obstructing Bird’s compliance with the court’s order; Yelp represents (and
we have no reason to doubt) that it will not stand in the way if Bird herself
removes the reviews. 4 The concern is instead that Bird is withholding her own
compliance, and the question is whether Yelp can be ordered to act independently,
even though Yelp has not been served or its own rights adjudicated. Again,
plaintiffs have cited no authority that permits that result.
Plaintiffs also argue that the order is proper because Yelp has no
independent interest in continuing to publish reviews that have been found by the
trial court to be defamatory (albeit in a case to which Yelp was not a party). Yelp
and its amici vigorously disagree, arguing that it has a protected First Amendment
interest in the publication of the reviews, separate and apart from Bird’s own
4 As a practical matter, that Bird can independently effectuate the judgment
further distinguishes Ross, supra, 19 Cal. 3d 899, where the defendant “could
comply with the provisions of the . . . order requiring the payment of retroactive
welfare benefits only through the actions of county welfare departments.” (Id. at
p. 909, italics added.)
10
authorial interest, that has not yet been adjudicated. (Cf., e.g., New York Times
Co. v. Sullivan (1964) 376 U.S. 254 [discussing First Amendment rights of both
the authors of a newspaper advertisement and the newspaper that published it];
Taylor v. Sturgell (2008) 553 U.S. 880, 892–893 [“A person who was not a party
to a suit generally has not had a ‘full and fair opportunity to litigate’ the claims
and issues settled in that suit,” and therefore ordinarily is not bound by the
judgment.].) We need not definitively resolve this controversy here, however,
because it is incontestable that Yelp has an interest in avoiding a court order,
backed by the threat of contempt sanctions, requiring it to do something it does not
believe it is legally obligated to do. Whether Yelp is right or wrong about the
nature of its obligations is beside the point. A person may be wrong and
nevertheless entitled to his or her day in court.
D.
So far, I have described common ground with Justice Cuéllar’s dissenting
opinion. Justice Cuéllar does not defend the trial court’s decision to issue an
injunction against Yelp in a proceeding to which it was not a party, and he would
vacate the Court of Appeal’s judgment upholding that order. (Dis. opn. of Cuéllar,
J., post, at pp. 34–39.) Justice Cuéllar would, however, remand for consideration
of whether the injunction against Bird can be enforced against Yelp because the
company has aided and abetted, or otherwise acted in concert with, Bird in her
violation of the court’s injunction. (Id. at p. 39.)
I agree with Justice Cuéllar that this is the pertinent standard under Berger
and related cases, but I do not believe a remand is warranted to consider whether
Yelp has aided and abetted Bird’s noncompliance with the court’s order against
her. The question before us concerns only the validity of the injunction entered
against Yelp. To be sure, after that injunction issued, the trial court later
concluded that Yelp had also aided and abetted the violation of the injunction
against Bird and could be ordered to remove the reviews for that reason. But as
noted, the Court of Appeal held that these aiding and abetting findings were both
11
“premature” and “also potentially improper” to the extent they were made in the
context of Yelp’s legal challenge to the validity of the judgment, and without the
procedural protections to which Yelp would have been entitled in a contempt
proceeding. (Hassell, supra, 247 Cal.App.4th at p. 1354; cf. Gonzalez, supra, 12
Cal.4th at p. 816 [contempt proceedings are “considered quasi-criminal, and the
defendant possesses some of the rights of a criminal defendant”]; Blockowicz v.
Williams (7th Cir. 2010) 630 F.3d 563, 568 (Blockowicz) [“Actions that aid and
abet in violating the injunction must occur after the injunction is imposed[.]”];
Paramount Pictures, supra, 25 F.Supp.2d at p. 375 [“Nor does an injunction reach
backwards in time to action taken prior to the time it was issued.”].) Plaintiffs
have not challenged the Court of Appeal’s holding on this point. That holding
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. And for present purposes, the conclusion that the
injunction against Yelp is invalid is a complete answer to the issue presented to us.
To the extent the question might arise in the future, however, I offer a
cautionary note. The difficulties with the trial court’s aiding and abetting analysis
extend beyond matters of timing and procedure. 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. (See Blockowicz, supra, 630 F.3d
at p. 568 [concluding that Internet service provider’s refusal to comply with an
injunction was “mere inactivity” that was “simply inadequate to render them
aiders and abettors in violating the injunction”]; see also Conrad, supra, 55
Cal.App.4th at p. 903 [before a nonparty can be punished for violating the terms of
an injunction, it must be shown that the nonparty has acted “with or for those who
12
are restrained”; “some actual relationship with an enjoined party is required” and
“[m]ere ‘mutuality of purpose’ is not enough”].) Put differently: 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.5
II.
In my view, these basic common law principles suffice to decide the case.
The plurality opinion, however, decides the matter on a different ground. It holds
that the trial court’s order directing Yelp to remove the reviews from the website is
barred by Yelp’s statutory immunity under section 230. Although I believe it is
unnecessary to reach the section 230 question, 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.
Two subsections of section 230 form the basis of the immunity Yelp claims
in this case. First, section 230, subsection (c)(1) provides that “[n]o 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.” Second,
section 230, subsection (e)(3) provides that “[n]o cause of action may be brought
and no liability may be imposed under any State or local law that is inconsistent
with this section.” Together, “[t]hese provisions have been widely and
5 In his dissent, Justice Cuéllar suggests other “evidence and interactions”
that perhaps might support a finding that a website operator or other Internet
platform acted as an aider and abettor. (Dis. opn. of Cuéllar, J., post, at pp. 35–
36.) We have not received full briefing on this question, and I express no view on
it. I do, however, caution 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. (Cf. plur. opn., ante, at p. 25.)
13
consistently interpreted to confer broad immunity against defamation liability for
those who use the Internet to publish information that originated from another
source.” (Barrett v. Rosenthal (2006) 40 Cal. 4th 33, 39 (Barrett).)
In an early, influential discussion of section 230, the Fourth Circuit
interpreted the provision to forbid any legal obligation that “would place a
computer service provider in a publisher’s role.” (Zeran v. America Online, Inc.
(4th Cir. 1997) 129 F.3d 327, 330.) The language of Zeran might be read to
suggest that a court could never order a website to remove third party content,
since any such order would necessarily interfere with the website’s choices about
what content to publish. But section 230 immunity has not been thought to sweep
quite so broadly. Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 is
illustrative. There, the Ninth Circuit concluded that section 230 immunity
precluded a plaintiff’s claim of negligence against the website Yahoo for failure to
take down fake profile accounts purporting to be the plaintiff, but did not preclude
a claim of promissory estoppel based on Yahoo’s failure to fulfill a promise to
remove the material. (Barnes, at pp. 1104–1109.) The Ninth Circuit reasoned that
the plaintiff’s promissory estoppel claim “does not seek to hold Yahoo liable as a
publisher or speaker of third party content, but rather as the counter-party to a
contract, as a promisor who has breached.” (Id. at p. 1107.) Liability on the latter
claim, the court explained, “would come not from Yahoo’s publishing conduct,
but from Yahoo’s manifest intention to be legally obligated to do something,
which happens to be removal of material from publication.” (Ibid.)
Distilling the available authorities, section 230 immunity applies to an
effort to bring a cause of action or impose civil liability on a computer service
provider that derives from its status as a publisher or speaker of third party
content. This reading of the statute is consistent with the policies articulated in
influential cases interpreting section 230 immunity such as Zeran and reiterated in
the plurality opinion: 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
14
litigation to defend, its past editorial judgments (or lack thereof) in permitting
third party postings. 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.
In each of the cases cited in the plurality opinion, the court applied section
230 to bar the filing of a lawsuit seeking to hold an interactive computer service
responsible for offending posts written by a third party. This case concerns a
different scenario. In this case, plaintiffs have filed no lawsuit against Yelp and
have pursued no substantive claim against it. The injunction, as narrowed to
Bird’s past reviews, on its face does not seek to draw Yelp into litigation to second
guess or penalize Yelp for its initial decision to post Bird’s reviews, despite their
defamatory content. As plaintiffs emphasize, the injunction instead requires only
that, now that the reviews have been found by a court to be defamatory, Yelp
remove the reviews. The injunction of course recognizes that Yelp is—as a matter
of fact—the publisher of Bird’s reviews; the reviews cannot come down without
Yelp’s cooperation. But that is not the pertinent question. 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. The justification plaintiffs offer for the issuance of the
injunction is that Bird acted with Yelp’s permission in posting her reviews on its
website, and Yelp has the ability to remove them even if Bird chooses not to. This
means, as the plurality opinion says, that plaintiffs are proceeding against Yelp
based on nothing more than its role as a publisher of third party content. (Plur.
opn., ante, at pp. 22–25.) As such, the only distinction between this case and a
lawsuit seeking to hold Yelp civilly liable for granting this permission to third
party users—which, as all agree, would unquestionably be barred by section 230
immunity—is plaintiffs’ decision not to name Yelp as a party (and thus, as
plaintiffs would have it, to save Yelp the trouble of defending itself). But for
15
reasons I have already explained, plaintiffs’ decision cannot deprive Yelp of its
opportunity to be heard on the propriety of the injunction against it. The
distinction in procedure thus ultimately makes no difference. Either way,
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
understand the plurality opinion’s application of section 230 to be similarly
limited. The plurality opinion “recognize[s] that not all legal duties owed by
Internet intermediaries necessarily treat them as the publishers of third party
content, even when these obligations are in some way associated with their
publication of this material”; it instead holds that, on the record before us, “Yelp is
inherently being treated as the publisher of the challenged reviews, and it has not
engaged in conduct that would take it outside section 230’s purview in connection
with the removal order.” (Plur. opn., ante, at pp. 24–25.) This restraint is, I
believe, appropriate here. Section 230 is often credited with giving rise to the
modern Internet as we know it, but the broad sweep of section 230 immunity also
has “troubling consequences.” (Barrett, supra, 40 Cal.4th at p. 40; see id. at
pp. 62–63.) Section 230, as broadly construed, has brought an end to a number of
lawsuits seeking remedies for a wide range of civil wrongs accomplished through
Internet postings—including, but not limited to, defamation, housing
discrimination, negligence, securities fraud, cyberstalking, and material support of
terrorism. (See, e.g., Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817
F.3d 12, 19 [citing cases]; Pennie v. Twitter, Inc. (N.D.Cal. 2017) 281 F. Supp. 3d
874, 888–889.) Whether to maintain the status quo is a question only Congress
can decide. But at least when it comes to addressing new questions about the
scope of section 230 immunity, we should proceed cautiously, lest we
16
inadvertently forbid an even broader swath of legal action than Congress could
reasonably have intended.
III.
I, like my colleagues, am sympathetic to plaintiffs’ dilemma. Plaintiffs
have proved to the satisfaction of the trial court that Bird’s critical Yelp reviews
are false; Bird has yet to comply with the court’s order to remove the reviews; and
section 230 forbids them from suing Yelp to require it to remove the reviews if
Bird fails to do so. But as I see it, issuing an injunction directly against Yelp,
without affording it a meaningful opportunity to be heard, is not an available
alternative. Plaintiffs’ understandable desire to circumvent section 230 does not
permit us to cast aside either the “ ‘ “deep-rooted historic tradition that everyone
should have his own day in court,” ’ ” or the fundamental due process principles
on which that tradition rests. (Richards v. Jefferson County (1996) 517 U.S. 793,
798.) I therefore join the plurality opinion in concluding that Yelp’s motion to
vacate the injunction against it should have been granted.
KRUGER, J.
17
DISSENTING OPINION BY LIU, J.
The court expresses “sympathy” for those who have been defamed on the
Internet, including plaintiffs Dawn Hassell and the Hassell Law Group, who won a
lawful judgment against defendant Ava Bird for defamatory reviews that Bird
posted on Yelp. (Plur. opn., ante, at p. 32; see conc. opn. of Kruger, J., ante, at
p. 17.) But Hassell is not seeking sympathy. She is seeking a remedy for the
damage done to her and her law firm. The trial court provided that remedy in the
form of damages against Bird and an injunction ordering both Bird and Yelp to
remove the defamatory reviews, and the Court of Appeal affirmed. However,
more than four years after the trial court issued its order, Bird’s defamatory
reviews remain posted on Yelp. Bird has refused to comply with the injunction,
and Yelp claims it is under no legal obligation to comply. Today’s decision agrees
with Yelp, thereby ensuring that Hassell will continue to suffer reputational harm
from the unlawful postings unless Bird is somehow made to comply.
This “dilemma” (conc. opn. of Kruger, J., ante, at p. 17) is one of the
court’s own making. As Justice Cuéllar explains, today’s extension of the
Communications Decency Act of 1996 (47 U.S.C. § 230) (section 230) to
immunize Yelp is not supported by case law or by the statute’s text and purpose.
(Dis. opn. of Cuéllar, J., post, at pp. 7–29.) Section 230 does not immunize Yelp
from this removal order issued by a California court in a case where “[n]o claim
was ever brought against Yelp seeking defamation or tort liability for its editorial
1
decisions.” (Dis. opn. of Cuéllar, J., post, at p. 18.) Decisions like Zeran v.
America Online, Inc. (4th Cir. 1997) 129 F.3d 327 are inapposite because they
involved lawsuits filed directly against providers of interactive computer services
for tort liability. In Barrett v. Rosenthal (2006) 40 Cal. 4th 33 (Barrett), we relied
on those decisions to conclude that “section 230 exempts Internet intermediaries
from defamation liability for republication.” (Id. at p. 63.) We rested our holding
on the understanding that “[s]ubjecting service providers to notice liability would
defeat ‘the dual purposes’ of section 230, by encouraging providers to restrict
speech and abstain from self-regulation. [Citation.] A provider would be at risk
for liability each time it received notice of a potentially defamatory statement in
any Internet message, requiring an investigation of the circumstances, a legal
judgment about the defamatory character of the information, and an editorial
decision on whether to continue the publication.” (Barrett at p. 45, italics added.)
We emphasized that “[a]ny investigation of a potentially defamatory Internet
posting is . . . a daunting and expensive challenge.” (Id. at p. 57, italics added.)
Our opinion repeatedly explained that section 230 is intended to protect service
providers from investigation and litigation burdens arising from notice of users’
“potentially” defamatory statements. (Id. at pp. 44–46, 55, 57.)
These concerns are not present in this case. No one has burdened Yelp
with defending against liability for potentially defamatory posts. Here, the trial
court ordered Yelp to remove postings that have been already adjudicated to be
defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to
incur expenses to defend its editorial judgments or any of its business practices.
The trial court ruled that Bird had defamed Hassell on Yelp, and it directed Yelp
to help effectuate the remedy. Yelp’s conduct as a speaker or publisher was never
at issue in Hassell’s lawsuit, and the trial court imposed no liability on Yelp for
such conduct. Instead, the trial court enjoined Yelp as part of the remedy for
2
Bird’s tortious conduct toward Hassell. A company in Yelp’s position may face
burdens associated with determining the “validity or scope” of a removal order or
“the manner in which it is implemented.” (Plur. opn., ante, at p. 29.) But these
are not the type of burdens contemplated by Barrett or the cases upon which
Barrett relied in explaining the purpose of section 230 immunity.
As for Yelp’s due process claim, the Court of Appeal properly clarified that
the question here is “whether the trial court was without power to issue the
removal order in the first instance.” (Hassell v. Bird (2016) 247 Cal. App. 4th
1336, 1357, italics added.) The matter before us is Yelp’s motion to vacate the
trial court’s judgment; this is not a contempt proceeding or other action seeking to
impose liability on Yelp for violating the injunction. (Ibid. [Yelp’s postjudgment
conduct “has no bearing on the question” presented].) Justice Kruger argues that
the removal order directed at Yelp violates due process because Yelp was never
given its “own day in court” before the order was issued. (Conc. opn. of Kruger,
J., ante, at p. 9.) She cites Judge Learned Hand’s opinion in Alemite
Manufacturing Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 (Alemite) for the
proposition that a court generally cannot “bind any one but a party” and “cannot
lawfully enjoin the world at large.” (Id. at p. 832; see conc. opn. of Kruger, J.,
ante, at p. 3.)
But “[g]eneral propositions do not decide concrete cases” (Lochner v. New
York (1905) 198 U.S. 45, 76 (dis. opn. of Holmes, J.)), and the facts of Alemite are
instructive. The plaintiff there won a patent infringement suit against John Staff
and obtained an injunction “against John, ‘his agents, employees, associates and
confederates,’ enjoining them from infringing, or ‘aiding or abetting or in any way
contributing to the infringement.’ ” (Alemite, supra, 42 F.2d at p. 832.) “At the
time of the suit [John’s brother] Joseph was a salesman for John, but later, having
left his employ, he set up in business for himself, and was proved to have
3
infringed the patent. The plaintiff then began proceedings in the original suit to
punish Joseph for contempt, asserting that he was bound by the decree, and that
his new business was a violation of the writ.” (Ibid.) The Second Circuit held that
the injunction in the action against John could not extend to Joseph’s new act of
infringement. (Id. at p. 833.) Noting that “[t]he District Judge found that John
‘had no connection or part whatever in the acts of contempt hereby adjudged
against Joseph Staff’ ” (id. at p. 832), Judge Hand explained that “[t]he District
Court had no more power in the case at bar to punish [Joseph] than a third party
who had never heard of the suit” (id. at p. 833).
The injunction in Alemite could not reach Joseph, a nonparty, because his
infringement of the same patent was entirely independent of John’s original act of
infringement. It was in that sense that Judge Hand said Joseph was a stranger to
the underlying suit. The same is not true here. The trial court did not enjoin Yelp
“ ‘from engaging in independent conduct with respect to the subject matter of th[e]
suit.’ ” (Conc. opn. of Kruger, J., ante, at p. 6.) Yelp was directed to remove
Bird’s defamatory reviews of Hassell, the very subject matter of the underlying
suit. The trial court did not enjoin Yelp from posting any other defamatory
reviews of Hassell, even if such reviews were identical to Bird’s. This is fully
consistent with Judge Hand’s admonition that “it is not the act described which the
decree may forbid, but only that act when the defendant does it.” (Alemite, supra,
42 F.2d at p. 833.) The defendant here is Bird; the unlawful acts are Bird’s
defamatory reviews; and the injunction directs Yelp to remove only Bird’s
defamatory reviews, not anyone else’s. The removal order illustrates the rule that
an injunction may extend to a nonparty “when [the nonparty] has helped to bring
about . . . what [the injunction] has power to forbid, an act of a party.” (Ibid.)
In saying that the removal order enjoins Yelp from engaging in
“independent conduct,” Justice Kruger strays from the meaning of that term as
4
used in the cases she cites. (See Additive Controls & Measurement Sys. v.
Flowdata (Fed.Cir. 1996) 96 F.3d 1390, 1395 (Flowdata); Paramount Pictures
Corp. v. Carol Pub. Group, Inc. (S.D.N.Y. 1998) 25 F. Supp. 2d 372, 375–376
(Paramount Pictures).) In those cases, as in Alemite, a plaintiff obtained an
injunction against one or more defendants for patent or copyright infringement and
thereafter sought to bind nonparties to the injunction based on the nonparties’ acts
of infringement. This was prohibited, the courts explained, because the nonparties
had engaged in their own acts of infringement separate and apart from the
defendants’ infringing acts that were the subject of the injunction. (See Flowdata,
at pp. 1395–1397; Paramount Pictures, at pp. 375–376.) “Independent conduct”
in this context means conduct by a nonparty that is allegedly unlawful independent
of the defendant’s wrongdoing; it does not encompass conduct by a nonparty that
facilitates the defendant’s wrongdoing. Indeed, Flowdata recognized — with no
misgivings about due process — that courts have authority to issue a directive to a
nonparty when “ ‘necessary or appropriate to effectuate and prevent the frustration
of orders’ ” directed at a party. (Flowdata, at p. 1396, quoting U.S. v. New York
Tel. Co. (1977) 434 U.S. 159, 172 [court may require telephone company to
cooperate with installation of pen register device].) Alemite, Flowdata, and
Paramount Pictures would be more on point if the trial court had ordered Yelp to
remove identical reviews posted by people other than Bird. But the removal order
targets only the reviews written by Bird, the defendant in the underlying suit.
This court long ago observed that “it has been a common practice to make
the injunction run also to classes of persons through whom the enjoined party may
act, such as agents, servants, employees, aiders, abetters, etc., though not parties to
the action, and this practice has always been upheld by the courts, and any of such
parties violating its terms with notice thereof are held guilty of contempt for
disobedience of the judgment.” (Berger v. Superior Court (1917) 175 Cal. 719,
5
721 (Berger).) Justice Kruger doubts that “Bird acts, or has ever acted, ‘through’
Yelp in the sense relevant under Berger” (conc. opn. of Kruger, J., ante, at p. 7)
and suggests that Yelp’s conduct here is merely passive. But such a
characterization of Yelp’s role blinks reality.
If Bird had gone to the town square every day to shout defamatory
comments about Hassell, or if Bird had made those comments to 50 friends, it is
doubtful this case would be here today. Instead, 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. Even if Yelp was not Bird’s agent or servant (cf. Ross v. Superior
Court (1977) 19 Cal. 3d 899, 905–909 (Ross); Ex parte Lennon (1897) 166 U.S.
6
548, 555–556), it is evident that Bird acted through Yelp in the most relevant
sense: It was Bird’s defamation of Hassell, facilitated by Yelp’s willing and active
participation, that the trial court sought to enjoin. The removal order directed at
Yelp is an example of the “common practice” of “mak[ing] the injunction
effectual against all through whom the enjoined party may act, and to prevent the
prohibited action” — here, the continued display of Bird’s defamatory reviews on
Yelp — “by persons acting in concert with or in support of the claim of the
enjoined party.” (Berger, supra, 175 Cal. at p. 721, italics omitted.)
Justice Kruger suggests that whether Bird acted through Yelp in a manner
that made Yelp a proper subject of the injunction is an issue on which Yelp had a
right to notice and an opportunity to be heard before the injunction issued. (Conc.
opn. of Kruger, J., ante, at p. 7, fn. 3.) But I agree with the Court of Appeal that
“a trial court does have the power to fashion an injunctive decree so that the
enjoined party may not nullify it by carrying out the prohibited acts with or
through a nonparty to the original proceeding.” (Hassell v. Bird, supra, 247
Cal.App.4th at p. 1357.)
Again, Alemite is instructive. After obtaining an injunction “against John,
‘his agents, employees, associates and confederates,’ enjoining them from
infringing, or ‘aiding or abetting or in any way contributing to the infringement,’ ”
the aggrieved plaintiff initiated an action “to punish Joseph for contempt, asserting
that he was bound by the decree” as a nonparty within the ambit of the
injunction’s terms. (Alemite, supra, 42 F.2d at p. 832.) It is true that Joseph had
notice and an opportunity to be heard in the contempt proceeding, and he
convinced the district court that his new act of infringement had no connection to
John’s prior act of infringement that was the subject of the injunction. But
suppose the district court had concluded otherwise and found Joseph in contempt.
That determination would rest on the premise that the injunction validly applied to
7
Joseph when it was issued (provided he had notice of it, which he did). If Joseph
could not have been bound by the injunction because he had no notice or
opportunity to be heard before it was issued, then he could not have been punished
for contempt under any scenario. Joseph could only have been bound by a new
injunction after being heard on the nature of his conduct; he could not have been
punished for violating the existing injunction. Yet Alemite provides no support for
this view. Instead, Judge Hand recognized the validity of punishing a nonparty
who “has helped to bring about” the prohibited act of a party as a narrow
exception to the general rule that an injunction can apply only to persons who have
had “their day in court.” (Id. at p. 833.)
In Ross, supra, 19 Cal. 3d 899, we rejected the local supervisors’ claim that
they could not be held in contempt for violating an injunction directed at state
officials and their “ ‘agents’ ” (id. at p. 906) because they were not parties to the
suit in which the injunction was issued and “received no notice and were afforded
no opportunity to defend that action” (id. at p. 905). We determined that the local
supervisors were, by statute, “agents” of the state officials for purposes of
administering welfare benefits, notwithstanding the supervisors’ arguments to the
contrary. (Id. at pp. 906–909.) The supervisors had no opportunity to present
their arguments that they were not “agents” of the state before the injunction
issued — yet we upheld the finding of contempt because they “wilfully refused to
comply with the judgment.” (Id. at p. 904.) In other words, the injunction was
binding on the supervisors when issued, even though they had no notice or
opportunity to be heard beforehand. Justice Kruger does not explain how, under
her view, the supervisors in Ross could have been bound.
The only difference here is that the injunction names Yelp instead of using
a general phrase to refer to nonparties (e.g., “Bird’s agents, employees, associates,
confederates, aiders and abettors”) as in Alemite and Ross. But that makes no
8
difference to the due process inquiry. Yelp may yet argue in a contempt
proceeding that its relationship to Bird’s tortious conduct was not sufficient to
justify the trial court’s removal order. But if that argument were to fail, the fact
that Yelp — like the supervisors in Ross — had no notice or opportunity to be
heard before the trial court issued the injunction would not preclude a finding of
contempt. Such a finding would necessarily mean the injunction was valid when
issued.
Finally, the nature of Yelp’s relationship to Bird that makes Yelp a proper
subject of the injunction is not that of a “publisher or speaker” for purposes of
section 230 immunity. Yelp’s obligation to remove Bird’s defamatory reviews
does not stem from any judgment as to the legality of any editorial decision by
Yelp to publish Bird’s speech. As noted, the only issue in the underlying suit was
whether Bird, not Yelp, had defamed Hassell and her firm; the suit did not impose
on Yelp any burdens of defending itself against liability for “potentially
defamatory” statements. (Barrett, supra, 40 Cal.4th at p. 45.) Whether Yelp
could claim section 230 immunity in a contempt proceeding on the ground that its
continued refusal to remove Bird’s reviews is a matter of editorial judgment,
notwithstanding a state court judgment finding the reviews defamatory, is a matter
not before us.
The Court of Appeal got it right: Yelp has no statutory immunity from the
removal order, and the removal order directed at Yelp does not violate due process
of law. I would affirm the judgment of the Court of Appeal.
LIU, J.
9
DISSENTING OPINION BY CUÉLLAR, J.
Even — indeed, perhaps especially — in a society that values free
expression, people expect courts and statutes to offer them minimal protections
from disparaging misrepresentations or abject lies deliberately circulated to the
public. Today’s plurality opinion does not. Despite clear evidence that the federal
Communications Decency Act of 1996 (47 U.S.C. § 230 (hereafter section 230))1
was no trump card letting providers of “interactive computer service” (§ 230(f)(2))
such as Internet platforms evade responsibility for complying with any state court
order involving defamation or libel, the plurality opinion posits that our state’s
protections against the willful spread of false, damaging information are just not
compatible with the Internet. In reaching this conclusion, the plurality opinion
unfortunately misconstrues the Communications Decency Act and misapplies our
precedent. It also runs the risk of misjudging the consequences of implying, in the
early 21st century, that protections from libel, defamation, so-called “revenge
porn,” and similar actions are plenty available except, of course, where they
arguably matter most: on the digital network that gives a lone voice in the public
square a megaphone loud enough to be heard in the most remote corners of the
planet.
In fact, the question this case presents is as novel as it is important –– one
undecided by this court or any other. We must resolve whether section 230 grants
an interactive computer service provider immunity from complying with a
1 Undesignated references are to section 230.
1
properly issued state court order, and if not, under what circumstances a court may
require such a service provider to remove posted information that a court has
found defamatory. At core this case implicates a dispute not only about
defamation on the Internet, but about whether a court can fashion an effective
remedy that applies to Internet platforms. The plurality opinion is right to
recognize that this question depends crucially on section 230 –– but it also
implicates due process principles, as well as California law governing court issued
injunctions.
Yet the plurality opinion’s answer to this question follows almost entirely
from its analysis of section 230. Remarkably, it asserts that section 230 alone
prevents a California court from directing Yelp, Inc. (Yelp) to remove from its
website statements that have been judicially adjudged defamatory. The plurality
opinion expands this court’s precedent to reach its conclusion and authorizes
interactive computer service providers to flout California court orders by asserting
section 230 immunity. In doing so, 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.
To the extent the plurality opinion maintains that section 230 acts as an
absolute bar to this long-standing application of California law, we disagree ––
and so does a majority of the court. The plurality opinion’s analysis of section 230
is no more compelled by the statutory language of section 230, the legislative
history of the statute, or any previous case law broadly interpreting section 230
than it is by anything in California law. Although it explicitly addresses only
section 230, the plurality opinion nonetheless concludes that there is no remedy
for Dawn L. Hassell and her law firm, even through an injunction extended to
Yelp. (Plur. opn., ante, at p. 32.) We disagree.
2
To provide the nuanced analysis necessary for resolution of the question
before us, we identify the circumstances under which a California court may
properly enjoin an interactive service provider. A California court has such power
if it is wielded appropriately and in the right circumstances. Even in the context of
this case, Justice Liu’s opinion posits an injunction might be properly enforced
against an interactive service provider. (See dis. opn. of Liu, J., ante, at pp. 8-9.)
And as Justice Kruger explains, section 230 does not necessarily foreclose a state
court from specifically naming and enjoining an interactive service provider,
provided courts observe proper procedural safeguards. (Conc. opn., ante, at pp.
11-12, 14-16.)
We also contemplate a different situation in our analysis –– one specifically
raised by Yelp before the Court of Appeal and in its petition for review. Our
analysis addresses whether the injunction, issued against Ava Bird and directing
her to remove her defamatory posts from Yelp.com, may run to Yelp. We
conclude that, under proper conditions, it may. Although the trial court in this
case did not make sufficiently clear findings supporting the conclusion that Yelp
acted as an agent of or conspirator with Bird, or aided and abetted her,
circumstances may indeed arise where a nonparty interactive service provider is
found to have developed such a close entanglement of interests –– based on the
provider’s behavior before the injunction, and having received sufficient notice
and opportunity to participate in the litigation.
What this case does not implicate is the kind of situation where section 230
does confer immunity –– against a cause of action filed directly against the
platform, seeking to hold it liable for conduct as the publisher of third party
content. (Plur. opn., ante, at p. 14, citing Barrett v. Rosenthal (2006) 40 Cal. 4th
33, 39 (Barrett).) Our view diverges from the plurality opinion’s conclusion that
section 230 protects an Internet platform from complying with a state court order
simply because the platform operates as the publisher of third party speech. We
find no reason to read section 230 as categorically protecting an interactive service
3
provider from responsibility to comply with a properly issued injunction from a
California court. Underlying our conclusion is what we take to be the most
sensible reading of the relevant statutory terms and structure, precedent and
persuasive case authority, and practical considerations grounded in the statutory
purpose as well as California law.
In pressing its argument to the contrary –– that courts effectively have no
power to affect what information an Internet platform posts –– Yelp raises a
variety of procedural and constitutional concerns. We take these concerns
seriously, because fair adjudication and due process protections depend on an
opportunity to be heard before a court for parties whose interests are at stake. But
after careful review and reflection on applicable California and federal law, we do
not believe Yelp offers a persuasive argument why the trial court is powerless to
order removal of posted information by an interactive service provider that aids
and abets the underlying violation. We also affirm a long-standing principle of
California law that permits an injunction to run to a nonparty, where it has aided,
abetted, or acted in concert with or support of the enjoined party to violate the
terms of the injunction. We disagree with the plurality opinion’s apparent
assertion that section 230 categorically preempts the power of California courts to
enforce injunctive remedies on nonparties because of their status as publishers.
(Plur. opn., ante, at p. 25.) What we conclude instead is that Yelp may not assert
blanket immunity under section 230, where no cause of action has been filed
against and no liability has been imposed upon it as the speaker or publisher of
third party content.
I.
Dawn L. Hassell and the Hassell Law Group (collectively, Hassell) filed
suit against their former client, Ava Bird, on April 10, 2013. They alleged that
Bird posted “factually inaccurate and defamatory remarks” about Hassell on
Yelp.com. Although Yelp was not named as a defendant in Hassell’s lawsuit,
4
Hassell sent copies of the complaint to Yelp via fax and e-mail on May 15, 2013.
In their prayer for relief, Hassell sought damages and injunctive relief prohibiting
Bird from continuing to defame Hassell as well as removal of every defamatory
review Bird published about Hassell from Yelp’s website and anywhere else on
the Internet.
Bird never filed an answer to Hassell’s complaint. She did, however, file a
request with the San Francisco Bar Association to mediate the lawsuit. Hassell
attempted to engage in mediation with Bird, but Bird was nonresponsive to the
assigned mediator’s scheduling requests. Hassell requested an entry for default
judgment on July 11, 2013, which included a declaration regarding Hassell’s
service on Bird. Hassell’s notice of hearing and application for default judgment
was filed on November 1, 2013, and the hearing was scheduled for January 14,
2014. Bird failed to appear at the hearing on Hassell’s application for default
judgment, and the superior court swore-in, examined, and accepted evidence from
Dawn Hassell.
The superior court granted Hassell a default judgment against Bird,
awarding over $550,000 in damages and an injunction requiring Bird to remove
the defamatory reviews about Hassell from Yelp.com and anywhere else they
appeared on the Internet. The default judgment entered in favor of Hassell on
January 14, 2014, stated: “Plaintiffs’ Request for Injunctive Relief is Granted.
Defendant AVA BIRD is ordered to remove each and every defamatory review
published or caused to be published by her about plaintiffs HASSELL LAW
GROUP and DAWN HASSELL from Yelp.com and from anywhere else they
appear on the internet within 5 business days of the date of the court’s order. [¶]
Defendant AVA BIRD, her agents, officers, employees, or representatives, or
anyone acting on her behalf, are further enjoined from publishing or causing to be
published any written reviews, commentary, or descriptions of DAWN HASSELL
5
or the HASSELL LAW GROUP on Yelp.com or any other internet location or
website. [¶] Yelp.com is ordered to remove all reviews posted by AVA BIRD
under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any
subsequent comments of these reviewers within 7 business days of the date of the
court’s order.” Hassell served Yelp’s general counsel and its national registered
agents with a copy of the judgment on January 15, 2014. Yelp’s director of
litigation responded by letter, asserting that Yelp would not comply with the
injunction. Yelp informed Hassell that it could not be bound by the injunction,
was immune from compliance with the order under section 230, and that Hassell
improperly served Bird and failed to sufficiently prove defamation.
More than four months later, Yelp inserted itself into this case by filing a
motion to vacate the superior court’s default judgment as to Bird. On August 27,
2014, Yelp received a hearing on its motion to vacate the judgment against Bird.
In its papers and at the hearing, Yelp argued that section 230 barred the injunction
and that it could not be bound by the injunction as an agent or aider and abettor to
Bird. The superior court found a factual basis to support Hassell’s contention that
Yelp aided and abetted Bird’s violation of the injunction and included no
discussion of section 230 in its order denying Yelp’s motion to vacate the
judgment against Bird. Yelp appealed.
The Court of Appeal held that the injunction could be enforced against
Yelp, and rejected Yelp’s argument that section 230 granted it immunity from any
responsibility to comply with the injunction. (Hassell v. Bird (2016) 247
Cal. App. 4th 1336, 1356-1357, 1365 (Hassell).) Addressing Yelp’s challenge to
the injunction directing it to remove posts from its website, the Court of Appeal
held that under California law, an injunction can be applied to nonparties in
appropriate circumstances. (Id. at p. 1355, citing Ross v. Superior Court (1977) 19
Cal. 3d 899 (Ross).) The court reasoned that these principles of California law
6
undermined Yelp’s theory that the trial court lacked authority to include in the
judgment against Bird a provision ordering Yelp to effectuate the injunction
against Bird by deleting her defamatory reviews. (Id. at p. 1356.) Yelp argued it
was insulated from any responsibility to comply with an injunction issued against
Bird, because the evidence did not establish that Yelp aided and abetted Bird’s
violation of the injunction. The court concluded that the specific aiding and
abetting issue taken up by the trial court in this case had no bearing on whether the
trial court, in principle, had authority to issue the injunction in the first place. (Id.
at p. 1357.) The court held that California law “establishes that a trial court has
the power to fashion an injunctive decree so that the enjoined party may not
nullify it by carrying out the prohibited acts with or through a nonparty to the
original proceeding.” (Ibid.)
Yelp petitioned this court for review. It asked us to resolve two related
issues: whether California law authorizes an injunction to extend to a nonparty
online publisher, and whether section 230 prevents a court from enjoining and
directing a website publisher to remove third party content from its website. We
granted Yelp’s petition for review.
II.
Time and again in the course of its extensive participation in this litigation,
Yelp urged the court to embrace a specific reading of section 230. That reading
would categorically shield Yelp from responsibility to comply with any
conceivable injunction issued by the superior court. Only by conjuring immunity
from a statute that does not provide it to advance a purpose putatively derived
from a statute that does not embrace it can Yelp expect its argument on this score
to persuade. We address Yelp’s contention that section 230 prohibits a California
court from crafting and effectuating an injunction that directs a website publisher
7
to take specific action, including a directive to remove from its website content
judicially deemed defamatory.
Yelp’s own interpretation of section 230 is essentially the one embraced by
the plurality opinion: that this provision works to immunize interactive service
providers that post third party information or derivative content from compliance
with state court orders that implicate their status as the publisher of third party
content. The terms of section 230 lend no support to this interpretation. Enacted
in 1996 as part of the Communications Decency Act, section 230 is entitled
“Protection for private blocking and screening of offensive material.” None of the
terms included in section 230 suggest an immunity trump card from state court
orders lurking in the statute’s midst. Section 230 describes certain protections and
obligations of interactive computer services, like Yelp. Section 230(a),
“Findings,” reflects that section 230 was adopted at a time of rapid development of
the Internet, and with Congress’s express recognition that Americans increasingly
rely on the Internet for political, educational, cultural, and entertainment purposes.
(§ 230(a).) The policy priorities described in section 230(b) demonstrate a
concern with addressing objectionable and offensive material available online. In
addition to policies encouraging the promotion, continued development, and
preservation of the competitive free market for the Internet, the statute specifically
enunciates policies to encourage the development of technologies that maximize
user control over information received through the Internet and to remove
disincentives for developing and utilizing blocking and filtering technologies to
limit children’s access to objectionable or inappropriate online content. (§
230(b).) None of the policies within section 230(b) state or suggest an express
immunity from compliance with state court orders.
The title of section 230(c) is “Protection for ‘Good Samaritan’ blocking and
screening of offensive material.” What section 230(c)(1) provides is this: “No
8
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(c)(2) explains that providers or users of interactive computer services
shall not be liable for actions taken in good faith to restrict access to obscene,
harassing, or objectionable material, regardless of whether such material is
constitutionally protected, or for efforts to make available technology that restricts
such material. (§ 230(c)(2)(A)-(B).) Section 230(c) does not endow Internet
platforms with a complete immunity from compliance with state court orders.
Rather, it enunciates protections where offensive material is voluntarily restricted,
blocked, or screened. Section 230(d) outlines the obligations of interactive service
providers to provide notification regarding parental control protections that assist a
customer in limiting minors’ access to harmful online material. (§ 230(d).) And
section 230(e) explains that section 230 has no effect on certain federal and state
laws. (§ 230(e).) Section 230(e)(3), which pertains to state and local laws, is
particularly relevant here. It states only: “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.” (§ 230(e)(3).)
Because of the website it runs, Yelp is one of the entities functioning as a
provider of interactive computer service. Such entities have both certain
protections and responsibilities under the statute. (§ 230(d), (f)(2); see also Fair
Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008)
521 F.3d 1157, 1162, fn. 6 (Roommates.com) [“Today, the most common
interactive services are websites”].) And Bird, the creator of information posted
on Yelp.com, is an “information content provider” as a person “responsible, in
whole or in part, for the creation or development of information” provided through
the Internet or a website like Yelp. (§ 230(f)(3).) Hassell, the victims of
9
defamation, filed their claim only against Bird — the originator of the defamatory
speech — and not against Yelp, an interactive service provider. No cause of
action or claim was ever filed against Yelp as an interactive service provider. (See
§ 230(e)(3).) Rather, Yelp’s participation in this case was at its own demand,
through a motion to invalidate Hassell’s default judgment against Bird. The
question is whether Yelp may assert section 230 immunity where the only cause of
action relevant to this case was brought against Bird directly and no legal claim or
liability is levied against Yelp.
By its terms, section 230 conspicuously avoids conferring complete
immunity from all legal proceedings. Its language expressly permits the
enforcement of certain federal criminal laws as well as state laws consistent with
the section. (§ 230(e).) In the context of state law, the section 230 only prohibits
causes of action from being brought and liability from being imposed under state
laws that are inconsistent with the section. (§ 230(e)(3).) From the statute’s
terms, an inconsistent state law is one in conflict with the terms in section 230(c).
An inconsistent state law under section 230(c)(1) is a state law cause of action or
liability that treats an interactive computer service as the publisher or speaker of
information provided by another information content provider. And an
inconsistent state law under section 230(c)(2) is a state law cause of action that
seeks to hold an interactive service provider liable for voluntary actions taken in
good faith to restrict access to obscene, lewd, harassing, or otherwise
objectionable material. If section 230 conferred complete immunity on an
interactive service provider, as the plurality opinion implies, then lurking
somewhere in the statute one would need to find an enormously consequential
codicil of categorical absolution written in invisible ink to preempt the statute’s
more nuanced scheme.
10
There’s no such codicil. Nor does Yelp even face “liability” here at all.
(See § 230(e)(3).) The plurality opinion treats compliance with the court order
pertaining to Bird’s defamatory speech as a kind of liability against Yelp, arguing
that liability is a broad legal term. (Plur. opn., ante, at pp. 26-27, citing Black’s
Law Dict. (6th ed. 1990) p. 914 (Black’s 6th ed.).) But we define liability under
section 230 as the term of art that it is in our legal system –– meaning a financial
or legal obligation, such as a duty of care under tort law, the breach of which gives
rise to a tort lawsuit –– that treats a service provider or user as the publisher or
speaker of third party content. We find support for this interpretation in the
commonly understood definition of “liability.” (See Webster’s 9th New
Collegiate Dict. (1989) p. 687 [defining liability as “something for which one is
liable; esp, pl : pecuniary obligations : DEBTS”]; see also Black’s Law Dict. (10th
ed. 2014) p. 1053 [defining “liability” as “being legally obligated or accountable”
or a “financial or pecuniary obligation in a specified amount.”].) As the plurality
opinion readily acknowledges, “liability” was understood at the time the statute
was enacted to include the imposition of damages. Indeed, it was defined at the
time “to mean: all character of debts and obligations.” (Black’s 6th ed., supra, at
p. 914.)
So liability in this context is best understood as a type of financial
obligation, such as the responsibility to pay damages arising from a successfully-
litigated tort suit. This conclusion is bolstered by our own decisions, together with
cases from other jurisdictions and the history of the statute at issue that liability in
this context is essentially a type of financial obligation. (Id. at p. 1055 [defining
“tortious liability” as “redressable by an action for compensatory, unliquidated
damages” and in some cases “by extracompensatory or punitive damages”].) As
the plurality opinion acknowledges, in Barrett, this court explained that “Congress
intended to create a blanket immunity from tort liability for online republication of
11
third party content” (Barrett, supra, 40 Cal.4th at p. 57) and was specifically
concerned with compelling regulation of service providers “at the sword point of
tort liability” (id. at p. 53). We specifically cited subsequent legislative history
affirming that Congress’s purpose was to protect providers from liability for tort
claims. (Id. at p. 54, citing H.R.Rep. 107-449, 2d Sess., p. 5 (2002) [“The courts
have correctly interpreted section 230(c), which was aimed at protecting against
liability for such claims as negligence”].) One of the first cases to interpret section
230, Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran),
explained that “Congress recognized the threat that tort-based lawsuits pose” and
the purpose of the statutory immunity was to prohibit the “imposition of tort
liability on service providers” in a burgeoning Internet. Zeran, on which the
plurality opinion relies, expressed that section 230 was enacted to prevent the
imposition of “tort liability on service providers for the communication of others.”
(Zeran, at p. 330.) This focus on tort liability suggests that Congress understood
“liability” to mean tort liability, and supports our definition of liability as a
financial obligation, like damages.
The federal courts of appeals have also readily acknowledged Congress’s
concern with preventing tort liability against Internet platforms for third party
speech. (See Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12,
23 [explaining that in enacting section 230, Congress chose to prohibit “ ‘tort
liability on companies that serve as intermediaries for other parties’ potentially
injurious messages’ ”]; see also Doe v. Internet Brands (9th Cir. 2016) 824 F.3d
846, 852 [reasoning that section 230 is concerned with “ ‘the imposition of tort
liability on companies that do not create potentially harmful messages’ ” but are
merely intermediaries].) The injunction issued by the superior court does not
demand any financial obligation of Yelp. The underlying judgment and award of
damages pertains only to Bird and no damages or financial obligation are sought
12
from Yelp. The only possible financial obligation Yelp might face would result
from contempt proceedings and no such proceedings have occurred here.
All of which underscores why it is a contrast between apples and oranges
— or apples and Oreos, for that matter –– to compare a defendant’s explicit
targeting by a civil lawsuit with a person or entity’s remedial responsibility to
avoid helping others engage in prohibited conduct. A defendant to a state law
cause of action may be subject to an adverse judgment triggering a responsibility
to provide monetary or equitable relief to the plaintiff, and may incur litigation
expenses to defend itself. In contrast, an entity that has not been sued is required
only to refrain from engaging in prohibited actions. Yelp has not been sued, and
its only responsibility in light of the judgment and injunction against Bird is to
avoid violating that court order. Section 230 does not extend protection to a
provider or user who violates an injunction by instead promoting third party
speech that has been deemed unlawful by a California court. Yelp has an
obligation not to violate or assist in circumventing the injunction against Bird, but
that does not impose a legal obligation upon Yelp that treats it as a publisher or
speaker of third party content. As we explained in Barrett, interactive service
providers and users are exempt under section 230 “from defamation liability for
republication.” (Barrett, supra, 40 Cal.4th at p. 63.) We enunciated our concern
that “subjecting Internet service providers and users to defamation liability would
tend to chill online speech” as central to our holding that users and providers may
not be sued directly and held liable for distributing defamatory speech. (Id. at p.
56.) But we did not interpret section 230 to expand its protections to a provider
that acts in concert with another party to violate a court order or engage in
prohibited acts. That sort of interaction would eliminate the “publisher” immunity
contemplated in section 230(c)(1) and (e)(3). (See Barrett, at p. 63 (conc. opn. of
Moreno, J.) [reasoning that publishers who conspire with original content
13
providers “would not be covered by the immunity provided by. . . section
230(c)(1) and (e)(3)”].)
The plurality opinion belittles the state court injunction here as the result of
a “tactical decision.” The plurality implies the injunction is part and parcel of a
nefarious “litigation strategy” advanced by Hassell solely to circumvent section
230. (Plur. opn., ante, at p. 22.) Using this lens, the plurality elides the distinction
between causes of action filed directly against interactive service providers that
seek injunctive relief and state court orders that contain injunctions. The few
cases addressing injunctive relief did not extend section 230 immunity to a
provider or user seeking to evade compliance with an injunction. Rather, those
cases barred causes of action filed directly against the provider or user where the
claims sought injunctive relief as a remedy. (See Kathleen R. v. City of Livermore
(2001) 87 Cal. App. 4th 684, 698 (Kathleen R.) [reasoning that “even if for
purposes of section 230 ‘liability’ means only an award of damages [citation], the
statute by its terms also precludes other causes of action for other forms of relief”
such as taxpayer actions and claims for declaratory and injunctive relief filed
directly against a provider or user]; see also Medytox Solutions, Inc. v.
Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So. 3d 727, 731 (Medytox)
[concluding that section 230 “encompasses the claims for declaratory relief and
injunctive relief” filed directly against the interactive service provider].) These
cases lend no support to the plurality opinion’s assertion that a provider or user
may invoke section 230 immunity to avoid compliance with an injunction, where
no cause of action or claim has been filed. All of this makes it difficult at best to
conclude that section 230’s statutory terms somehow imply an unbounded
immunity to a service provider, where no cause of action is lodged against it and
no liability, meaning a financial or legal obligation that treats Yelp as the publisher
of third party content, is sought.
14
Given the plurality opinion’s embrace of an approach to section 230 that is
not compelled or even much supported by the statutory terms, it is unsurprising
that it is also an interpretation that does not follow from our precedent. And to the
extent the plurality opinion concludes that section 230 operates as a blanket
immunity for interactive service providers to disregard California court orders, it
fails to garner support from a majority of the court. Just once before did this court
consider section 230, in Barrett. What our opinion in that case addressed is only
whether the federal statute grants the distributor of allegedly defamatory material
immunity from a defamation lawsuit. (Barrett, supra, 40 Cal.4th at p. 39 [“We
granted review to decide whether section 230 confers immunity on ‘distributors’
”].) Our holding was limited to an interpretation of section 230 that “does not
permit Internet service providers or users to be sued as ‘distributors,’ nor does it
expose ‘active users’ to liability.” (Barrett, at p. 63.) Barrett did not squarely
consider whether an interactive service provider may avoid compliance with a
properly issued state court order. We cannot rely solely upon it or any other
precedent to resolve this case, but it remains instructive as we analyze, more
broadly, the statute’s breadth and limitations.
To reach our limited holding in Barrett, we weighed the meaning of section
230(c)(1) and (e)(3) together. We explained that “[t]hese provisions have been
widely and consistently interpreted to confer broad immunity against defamation
liability for those who use the Internet to publish information that originated from
another source.” (Barrett, supra, 40 Cal.4th at p. 39.) Our reasoning in Barrett is
consistent with the view that interactive service providers may invoke section 230
immunity to protect themselves from certain causes of action or liabilities, such as
those seeking defamation liability based on the provider’s publication or
distribution of defamatory speech. (Barrett, at p. 63 [“section 230 exempts
Internet intermediaries from defamation liability for republication”].) A plaintiff
15
might file a state law defamation cause of action against an interactive service
provider –– one treating the provider “as the publisher or speaker” of “information
provided by another information content provider,” as described in section
230(c)(1). Under section 230(e)(3), a provider may escape that cause of action or
avoid the liability sought in the plaintiff’s claim. Barrett instructs that a
defamation claim filed against Yelp for acting as the “distributor” of Bird’s speech
would be barred by section 230. But no such claim was filed against Yelp in this
case.
Barrett clarified that a plaintiff aggrieved by defamatory speech must file
its cause of action against the original speaker. We instructed that the proper
procedure to address defamation in Internet publications is for plaintiffs “to pursue
the originator of a defamatory Internet publication” and observed that “further
expansion of liability must await congressional action.” (Barrett, supra, 40 Cal.
4th at p. 63.) Hassell followed the procedure described in our prior opinion by
filing their claims against Bird, the originator of the defamatory statements. In
line with our directive, Hassell did not bring a cause of action for liability against
Yelp. Hassell’s lawsuit against Bird, the information content provider, fits with
section 230’s terms and our prior opinion.
In Barrett we found section 230 immunity protected an interactive
computer service user sued directly for defamation liability. We held only that
“by its terms section 230 exempts Internet intermediaries from defamation liability
for republication.” (Barrett, supra, 40 Cal.4th at p. 63.) Barrett specifically
contemplated a state law tort claim filed against an interactive computer service
user, which we deemed was inconsistent with section 230 because the defamation
claim against the user sought to hold the user liable for defamatory speech
authored by a third party. Whatever else is true of Barrett, it does not compel a
finding that Yelp may invoke section 230 immunity where it is not the subject of a
16
state law tort claim and where no liability is sought from Yelp for third party
speech. The immunity that Yelp desires is conferred only when a state law claim
is brought or a liability imposed that is inconsistent with section 230 because it
regards the provider or user as the speaker of third party speech. (§ 230(c)(1),
(e)(3).) Because these necessary conditions are not present in this case, we
conclude that Yelp may not assert unlimited immunity where no cause of action or
liability is imposed against it as the speaker or publisher of third party information.
This conclusion fits with what we held in Barrett. Congress’s purpose was
“to create a blanket immunity from tort liability for online republication of third
party content.” (Barrett, supra, 40 Cal.4th at p. 57.) Here, Hassell do not seek
tort liability from Yelp for republishing Bird’s content. Rather, Hassell filed suit
directly against Bird, seeking liability in money damages and injunctive relief
against Bird as the speaker and originator of the defamatory speech. As Yelp
quotes in its opening brief, “ ‘Plaintiffs who contend they were defamed in an
Internet posting may only seek recovery from the original source of the statement.’
” (Quoting Barrett, at p. 58.) Hassell did exactly that.
Yelp and the plurality opinion are left to rely on nonbinding case law from
other jurisdictions — addressing markedly distinct circumstances — to support
their strained interpretation of section 230. Yelp relies on the Fourth Circuit
decision in Zeran, which held that lawsuits against interactive service providers
seeking to hold the provider liable for decisions to publish, withdraw, postpone, or
alter content are barred under section 230. (Zeran, 129 F.3d at p. 330). Zeran
assessed a provider’s immunity from a state tort claim and the Fourth Circuit’s
holding does not conflict with our reading of section 230. There, the victim of
defamatory posts on an America Online (AOL) message board filed claims against
AOL, an interactive service provider. (Zeran, at pp. 329, 332.) The plaintiff did
not bring a cause of action against the poster of the offensive messages, but
17
instead sought to hold AOL liable for the third party’s defamatory speech. (Id. at
pp. 329-330.) Addressing whether AOL could assert section 230 as an affirmative
defense to the claims against it, the court reasoned that “[section] 230 creates a
federal immunity to any cause of action that would make service providers liable
for information originating with a third party user of the service.” (Zeran, at p.
330, italics added.) What the court addressed is section 230 immunity for tort
claims filed against an interactive service provider, not immunity for a claim
against the originator of the defamatory speech. Under these facts, the court
reasoned that websites faced with “lawsuits seeking to hold a service provider
liable” for the decision to publish, withdraw, or alter content, may enjoy section
230 immunity. (Zeran, at p. 330.) Zeran’s holding is inapposite here, where
Hassell filed their claim against the speaker of the defamatory speech, and not
Yelp, as the interactive service provider. No claim was ever brought against Yelp
seeking defamation or tort liability for its editorial decisions. Yelp and the
plurality opinion’s extension of section 230 immunity to any circumstance in
which a service provider exercises a publisher’s traditional editorial functions goes
beyond the federal court’s holding in Zeran.
Yelp and the plurality opinion also cite Barnes v. Yahoo!, Inc. (9th Cir.
2009) 570 F.3d 1096 (Barnes), a Ninth Circuit case that considered state law
claims brought against an interactive service provider. (Id. at p. 1099.) This Ninth
Circuit opinion provides a framework to assess whether a cause of action filed
against a provider seeks to treat the provider as a publisher or speaker of third
party information. But applying the framework offered in Barnes to the instant
case does not compel the conclusion that section 230 grants complete immunity to
a provider seeking to evade compliance with a state court order.
Plaintiff Barnes’s ex-boyfriend created and posted fake online profiles of
Barnes on a website run by Yahoo. The profiles featured naked photographs and
18
solicitations to engage in sexual intercourse. (Barnes, supra, 570 F.3d at p. 1098.)
In accordance with Yahoo’s policy, Barnes submitted a signed statement that she
did not create the profiles, requested their removal, and included the required
supporting documentation. She was eventually contacted by Yahoo’s director of
communications who assured her Yahoo would “take care of” her removal
request. (See id. at pp. 1098-1099.) Barnes claimed she relied on that statement
and took no further action. Two months later, still with no word from Yahoo,
Barnes filed a lawsuit against Yahoo alleging a state law tort claim for negligent
undertaking and a state law contract claim for promissory estoppel. Yahoo argued
it was immune from liability under section 230.
The Ninth Circuit first explained that no provision of section 230 “declares
a general immunity from liability deriving from third party content.” (Barnes,
supra, 570 F.3d at p. 1100.) The court rejected Yahoo’s assertion that section
230(c)(1) granted blanket immunity from any liability arising from third party
information and read section 230(c)(1) and (e)(3) together, explaining that (e)(3)
makes the terms of (c)(1) explicitly relevant, as “(c)(1) only protects from liability
(1) a provider or user of an interactive computer service (2) whom a plaintiff seeks
to treat, under a state law cause of action, as a publisher or speaker (3) of
information provided by another information content provider.” (Barnes, at pp.
1100-1101.) The Ninth Circuit defined the inquiry for section 230 immunity as
“whether the cause of action inherently requires the court to treat the defendant as
the ‘publisher or speaker’ of content provided by another.” (Barnes, at p. 1102.)
The court “must ask whether the duty that the plaintiff alleges the defendant
violated derives from the defendant’s status or conduct as a ‘publisher or speaker,’
” and if so, section 230 precludes liability. (Barnes, at p. 1102.)
Neither description of this test from Barnes carries the day for Yelp.
Barnes’s assessment was limited to a claim filed against a provider and conceived
19
of section 230 immunity only where that defendant provider was sued as liable for
third party speech. This analysis addresses a claim or theory of recovery filed
against the defendant –– not a third party, as in the instant case. The causes of
action here are Hassell’s defamation claims against Bird. The court must assess
whether those causes of action “treat the defendant as the ‘publisher or speaker’ of
content provided by another.” (Barnes, supra, 570 F.3d at p. 1102.) The answer
is no. Bird, as the defendant, is treated as the speaker of her own speech.
Hassell’s claims were filed against the party they seek to hold liable: Bird.
Hassell does not seek to hold Yelp liable as the publisher of Bird’s content. That
Yelp functions as a publisher of Bird’s speech does not in itself grant Yelp
complete immunity under section 230. The liable party, who is subject to the
defamation liability judgment, is Bird –– not Yelp. Hassell’s claim against Bird
for defamation does not treat Yelp as a publisher or speaker of Bird’s speech. No
immunity exists under section 230 under these circumstances.
What the test in Barnes treats as critical is whether the defendant’s acts
relate to the defendant’s status or conduct as a publisher or speaker. Yelp suggests
this test should be manipulated to ask whether the duty Yelp (a nonparty, and not
a defendant) violated derives from Yelp’s status or conduct as a publisher or
speaker. This reformulation of the Barnes test does nothing to advance Yelp’s
position. 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. (See Barnes, supra, 570 F.3d at p. 1107 [reasoning that liability
“would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest
intention to be legally obligated to do something, which happens to be removal of
material from publication”].) Yelp’s obligation could arise from a valid
conclusion that it aided and abetted unlawful conduct or a subsequent contempt
proceeding. Neither of these amounts to a direct claim alleging Yelp engaged in
20
defamation or the publication or distribution of defamatory speech. Again we find
no support for far-reaching conclusions about section 230 immunity.
Yelp also claims the Court of Appeal misread section 230(e)(3) by
construing it to limit the broad immunity allegedly established by 230(c)(1). Yelp
argues that Barnes concluded that section 230(c)(1), by itself, shields from
liability all publication decisions, including whether to post or remove content
generated by third parties. We are not persuaded by Yelp’s argument, and a
careful reading of the discussion in Barnes shows why. The Ninth Circuit’s
statement was not an assertion that state law claims may be barred solely on
authority conferred by section 230(c)(1). As previously discussed, the Ninth
Circuit framed its assessment under section 230 as an interplay between section
230(c)(1) and (e)(3). And this sentence cited by Yelp was just one statement
within a longer discussion about the separate roles of section 230(c)(1) and (2).
(See Barnes, supra, 570 F.3d at p. 1105 [“A closer look at the whole of section
230(c), we believe, makes sense of this apparent contradiction. Subsection (c)(1),
by itself, shields from liability all publication decisions, whether to edit, to
remove, or to post, with respect to content generated entirely by third parties.
Subsection (c)(2), for its part, provides an additional shield from liability. . . .”].)
The plurality opinion posits that the trial court’s order overrules Yelp’s
decision to post the defamatory review and is therefore barred by section 230.
(Plur. opn., ante, at pp. 22-24.) But the plurality’s conclusion doesn’t follow from
its premise, because section 230 no more preempted all state law governing
injunctions than it preempted all state law governing defamation. Yelp’s
obligation here is to refrain from violating the injunction issued against Bird. 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. This obligation does not hold Yelp to
21
account for its publication decisions such that it is treated as the publisher of
Bird’s speech. It holds Yelp accountable for aiding, abetting, or acting in concert
with or support of Bird as the enjoined party. The plurality opinion purportedly
recognizes Hassell obtained a default judgment and injunction against Bird, and
acknowledges that California law requires nonparties to comply with injunctions
in appropriate circumstances. What it seems to overlook are the implications of
these observations when section 230 is read correctly and no due process problems
exist: that the provision of the injunction directing Bird to remove her defamatory
posts could run to Yelp and similarly situated entities. (Id. at p. 23.)
The plurality opinion acknowledges that even under its reading of section
230, Yelp could conceivably be forced to comply with an injunction. (Plur. opn.,
ante, at pp. 23-24.) Of course it can, but our focus is on the issue most directly
raised by this case –– the injunction provision directing Bird to remove her
defamatory posts, and whether that injunctive duty may be enforced against Yelp.
Our conclusion is that section 230 does not categorically ban enforcement of the
injunction against Bird, Yelp, or similarly situated entities.
Yelp and its supportive amici curiae cite other nonbinding cases to press the
case for Yelp’s complete immunity under section 230. These cases are
distinguishable from the issue at hand because they addressed defamation liability
claims or causes of action filed directly against an Internet service provider or
user. As we have explained, no cause of action was filed against Yelp as an
interactive service provider. Relying on these cases, Yelp petitions for an
expansion of section 230 immunity beyond what this court or any other has
previously held. That a certain kind of injunction may be barred by section 230
does not compel a conclusion or even strongly imply that service providers are
immune from compliance with any properly issued injunction simply because they
are service providers as defined in the statute.
22
Nowhere in section 230 or anywhere else in the Communications Decency
Act is there support for the conclusion that injunctions issued by state courts are
categorically barred. Yelp and the plurality opinion cite a California Court of
Appeal opinion and a case from an appellate court in Florida as evidence that
section 230 prohibits interactive service providers and users from being enjoined.
(Plur. opn., ante, at pp. 16-18, 27-28.) This nonbinding case law permitting
section 230 immunity for service providers and users sued directly for injunctive
relief is not determinative of this case.
Kathleen R. addressed state law claims filed against an interactive service
provider seeking injunctive relief and damages. Relying on section 230(e)(3), the
Court of Appeal explained that “claims for declaratory and injunctive relief are no
less causes of action than tort claims for damages, and fall squarely within the
section 230(e)(3) prohibition.” (Kathleen R., supra, 87 Cal.App.4th at p. 698.)
Notably, the court in Kathleen R. did not rely solely on the terms of section
230(c)(1) to assert a complete immunity; rather, the court looked expressly to the
section 230(e)(3) requirement that no causes of action may be brought and no
liabilities may be imposed against interactive service providers. The claims were
barred, not because the plaintiff sought injunctive relief, but because she brought
causes of action against a service provider directly. Our understanding of section
230 does not conflict with Kathleen R: Under section 230(c)(1) and (e)(3), section
230 immunity may apply to a state law claim filed against a provider that seeks
injunctive relief. We find no support to go further and interpret section 230 as
immunizing websites from having to comply with any properly issued state court
injunction.
Nor does Yelp or the plurality opinion’s reliance on Medytox compel such a
conclusion. That Florida court of appeal decision addressed an action for
declaratory and injunctive relief against Investorshub.com, an interactive service
23
provider. (Medytox, supra, 152 So.3d at p. 729.) Medytox sued Christopher
Hawley for defamation and tortious interference after he posted statements about
Medytox on Investorshub.com. (Ibid.) Medytox requested that Investorshub.com
remove Hawley’s posts, which contained “allegedly defamatory statements” about
Medytox. (Ibid.) Investorshub.com removed two of the posts and Medytox sued
Investorshub.com for failure to remove all of the allegedly defamatory postings.
(Ibid.)
The court reasoned that section 230(e)(3) “precludes not only ‘liability,’ but
also causes of action for other forms of relief” based on state or local law.
(Medytox, supra, 152 So.3d at p. 731.) The court explained that “[a]n action to
force a website to remove content on the sole basis that the content is defamatory
is necessarily treating the website as a publisher, and is therefore inconsistent with
section 230.” (Ibid.) That plaintiffs filed an action directly against an interactive
service provider seeking removal of third party information was an essential fact
supporting the court’s conclusion. Medytox imposed a different burden from that
presented here: a burden on the provider to defend itself against a cause of action
seeking liability for third party speech. No claim was filed against Yelp seeking
damages or injunctive relief based on posts written by Yelp users. Medytox
provides no persuasive or controlling authority in favor of Yelp’s position.
What we find more instructive are practical considerations –– ones
consistent with the Communications Decency Act and to some extent motivated
the federal statute. These remain vital as we consider the powers of a sovereign
jurisdiction whose authority has not been explicitly curbed. Our proposed reading
of section 230 supports the statute’s purpose to protect service providers from state
law causes of action and liabilities that treat the provider as the publisher or
speaker of third party speech. Here, no cause of action seeks to hold Yelp liable
for its publication of Bird’s speech. We instead address a court ordered solution
24
for a victim of defamation that does not infringe section 230’s protections from
state law causes of action and liabilities against providers for acting as publishers
or speakers of third party speech. California citizens rely on the power of our
courts to protect and vindicate their rights. Our interpretation recognizes that the
statute does not prohibit court crafted remedies for victims of harmful Internet
content. The plurality opinion is incorrect in its assertion that allowing the
injunction against Bird to run to nonparty Yelp would contravene Congress’s
intent to protect providers from defending against claims that treat them as a
publisher or speaker of third party content. (Plur. opn., ante, at pp. 29-31.) Yelp
thrust itself into this case by petitioning the superior court to vacate the defamation
judgment that Hassell obtained against Bird. The court order against Bird
determined the specifically identified posts were defamatory and should be
removed. The superior court’s determination regarding Bird’s defamation liability
was just that — a determination about Bird’s defamation liability, not a claim
against Yelp requiring it defend itself against a civil lawsuit. In its own terms of
service, Yelp conveys that it engages in removal of posts, specifying that it can
“remove, screen, edit, or reinstate User Content from time to time at our sole
discretion for any reason or no reason, and without notice to you. For example,
we may remove a review if we believe it violates our Content Guidelines.” Yelp’s
terms of service specifically contemplate the removal of defamatory posts, as their
content guidelines caution users against posting content “that is false, intentionally
misleading, or defamatory.” Yelp could have simply removed the posts, in
accordance with its terms of service, without incurring any significant litigation
cost or burden. Nothing is 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.
25
Instead Yelp chose to initiate legal proceedings. It did so by petitioning the
court, on its own motion, to vacate a judgment against a party with whom Yelp
claims it shares no interests.2 Yelp did so in order to claim complete immunity
under section 230 and assert defenses on Bird’s behalf. Insofar as Yelp desired a
venue through which to defend its own speech interest, Yelp’s speech and original
content are not protected by section 230. Providers may only assert immunity
from causes of action brought against them that treat the provider as the publisher
or speaker of content provided by other information content providers –– not
content generated by the service provider itself. (See § 230(c)(1), (e)(3).) And
when Yelp created an opportunity to assert its own speech interest, it instead
argued that Hassell failed to sufficiently prove her defamation claim and subverted
the First Amendment rights of Yelp users, as third parties. Yelp argued that
Hassell failed to provide Bird adequate notice of the defamation lawsuit, made
insufficient efforts to locate Bird, and failed to prove that Bird authored the posts
at issue. Yelp now claims that it was entitled to an opportunity to be heard
regarding its own speech interest before the judgment and injunction against Bird
were entered.
The plurality opinion posits that our interpretation of section 230 creates
incentives for plaintiffs to provide little or no prejudgment notice to service
providers and users. (Plur. opn., ante, at pp. 30-31.) What the plurality opinion
fails to recognize are procedural safeguards embedded in the process governing
when an injunction against a party defendant may run to a nonparty like Yelp.
2 Although this issue is not before us, and Yelp has not chosen to challenge
this finding, the Court of Appeal determined that “Yelp is not aggrieved by the
default judgment against Bird” –– the judgment that Yelp sought to vacate.
(Hassell, supra, 247 Cal.App.4th at p. 1348.) Yelp’s decision to initiate judicial
proceedings under Code of Civil Procedure section 663, and to incur the costs
associated with its motion to vacate the judgment, was self-imposed.
26
Under California law, the injunction against Bird may only run to Yelp where
Yelp has actual notice of the injunction. Under this scenario, notice to Yelp
occurs before the injunction may be extended, and there is no danger of
disincentivizing the provision of notice. Even in situations where an injunction
might conceivably run to a nonparty based on pre-injunction conduct, the record
must reflect sufficient entanglement of interests and action to warrant a finding of
aiding and abetting under Berger v. Superior Court (1917) 175 Cal. 719 (Berger)
and Ross, and the nonparty would otherwise need sufficient notice and opportunity
to participate in accordance with due process principles. (Ross, supra, 19 Cal.3d
at p. 906; Berger, 175 Cal. at p. 721.) That Yelp in this case had considerable
notice and opportunity to participate in the proceedings underscores that these
requirements do not categorically prevent responsibility for removal of defamatory
information from being imposed on a nonparty on the basis of its pre-injunction
conduct. (See Ross, 19 Cal.3d at p. 909.)
Given the range of circumstances where state law may properly impose
responsibility on an entity such as Yelp without imposing “liability,” we question
whether it was within the ambit of congressional purpose that the statute preclude
any effective remedy for people defamed or injured by Internet content. Recall
that here, Bird failed to ever respond in the superior court proceedings. The record
indicates that she was aware of the lawsuit addressing her posts, as evidenced by
her request to the San Francisco Bar Association for mediation, but she refused to
defend her speech in court or comply with the judgment or injunction. Bird is also
apparently judgment proof. The underlying facts of this case are far from unique,
and many aggrieved Californians may find themselves in similar circumstances.
Nothing in the legislative history supports the idea, implicit in the plurality
opinion’s position, that Congress reasonably sought to deprive victims of
defamation and other torts committed online of any effective remedy.
27
Our reading of section 230 takes account of what it means, practically, to
let providers spurn state court orders. It considers as well the statute’s express
directive that section 230 shall not be construed to prevent a state from enforcing
laws consistent with the section. (§ 230(e)(3).) At core, the plurality opinion
reads as though it finds section 230 a definitive barrier to imposing any injunctive
responsibility on service providers. (Plur. opn., ante, at pp. 31-32.) That reading
of section 230 would render state courts incapable of providing effective relief to
their citizens when providers make “editorial” decisions that permit defamatory or
injurious speech to remain on the Internet, even where that speech has been
deemed unlawful. A complete immunity for interactive service providers under
section 230 would preclude remedies for victims of defamation where the content
providers are unavailable, like in circumstances of absentia or death, and where
the website operator is unsympathetic. Victims would be without recourse where,
as here, the service provider refuses to remove content even when that content
violates the provider’s terms of service. 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.
These concerns loom especially large in the context of the modern Internet.
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
28
section 230 that threatens the promotion of online discourse and thwarts
Congress’s intent. (Plur. opn., ante, at pp. 30-31.) 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. Our reading of
section 230 recognizes Congress’s concerns regarding the availability of
objectionable and inappropriate online material and its interest in encouraging
interactive computer service providers to voluntarily restrict access “in good faith”
to material that is obscene, lewd, harassing, or otherwise objectionable, regardless
of whether such material is constitutionally protected. (§ 230(c)(2).) That concern
makes the plurality opinion’s conclusion particularly ironic: it construes a statute
entitled “Protection for private blocking and screening of offensive material” as
one meant to promote the limitless perpetuation of offensive online content, rather
than to protect the voluntary removal and screening of such material. We
conclude instead that 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.
III.
Our analysis of section 230 lends further importance to a procedural and
remedial question Yelp raised in its petition: may an injunction be extended to a
nonparty website acting in concert with an enjoined party? From Yelp’s vantage
point, the answer is a simple no. Hassell’s injunction against Bird therefore may
not be enforced against Yelp as a nonparty. We disagree. California law is clear
that injunctions may be enforced against a nonparty that has notice of the
29
injunction and aided, abetted, or otherwise acted in concert with or support of the
enjoined defendant to violate the injunction.
California’s long-standing practice is to allow enforcement of injunctions
against certain nonparties — and rightly so. Berger is the seminal case from this
court regarding injunctions against nonparties. Injunctions are typically binding
on the parties to the action and their successors. But an injunction may be
enforced against a nonparty in order to prevent the prohibited action by nonparties
acting in concert with, or in support of, the enjoined party. (Berger, supra, 175
Cal. at p. 721 [“In matters of injunction, however, it has been a common practice
to make the injunction run also to classes of persons through whom the enjoined
party may act, such as agents, servants, employees, aiders, abettors, etc., though
not parties to the action, and this practice has always been upheld by the courts,
and any of such parties violating its terms with notice thereof are held guilty of
contempt for disobedience of the judgment”].) Where a nonparty is in fact, an
aider and abettor of the enjoined party, the injunction may be imposed upon that
nonparty. (Ibid.)
We have affirmed this long-standing principle of California law before.
(Ross, supra, 19 Cal.3d at pp. 908-909 [concluding that nonparties were subject to
an injunction as agents of the named defendants]; In re Berry (1968) 68 Cal. 2d
137, 155-156 (Berry) [recognizing that “injunctive orders to persons ‘in active
concert or participation with’ specifically named parties defendant is approved by
long-standing custom and practice”]). And federal law similarly provides that
nonparties may be enjoined. The United States Supreme Court in In re
Lennon (1897) 166 U.S. 548, 554 explained that it is immaterial whether a
nonparty had notice of the application for injunction or was actually served with a
copy of the injunction so long as he had actual notice of the issuing of an
injunction by the court. This rule was affirmed by the United States Supreme
30
Court in Regal Knitwear Co. v. Board (1945) 324 U.S. 9 (Regal Knitwear), as
cited throughout Yelp’s briefs. And a federal case on which Yelp relies,
Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 567 (Blockowicz), also
explains that pursuant to rule 65(d) of the Federal Rules of Civil Procedure (28
U.S.C.), nonparties may be bound by an injunction. Yelp’s contention that it may
not be enjoined because it was not named as a defendant in Hassell’s underlying
claim is unsupported by California or federal law.
Under our precedent, an injunction may run to persons through whom the
enjoined party may act, such as “persons acting in concert with or in support of the
claim of the enjoined party, who are in fact his aiders and abettors.” (Berger,
supra, 175 Cal. at p. 721 (original italics).) As we explained in Berger, nonparties
may be bound by an injunction where they have knowledge of the injunction, are
servants or agents of the enjoined party, or act “ ‘in combination or collusion with
them or in assertion of their rights or claims.’ ” (Id. at p. 722, quoting Rigas v.
Livingson (N.Y. 1904) 178 N.Y. 20, 24.) Any such parties who violate the terms
of the injunction “with notice thereof are held guilty of contempt for disobedience
of the judgment.” (Berger, at p. 721.) The purpose “is simply to make the
injunction effectual against all through whom the enjoined party may act,” thereby
preventing the acts prohibited in the injunction from being carried out by other
persons acting in concert with or in support of the enjoined party. (Ibid.) The
focus is not only on proper notice to vindicate the due process rights of nonparties
to whom the injunction may run, but also on whether the nonparty acted in concert
with or support of the enjoined party. (See Ross, supra, 19 Cal.3d at pp. 904, 916
[upholding a judgment of contempt where the nonparty “conceded that they had
received notice of the court order . . . and had knowingly voted to defy the order”];
Berger, supra, 175 Cal. at p. 723 [vacating a judgment of contempt where there
31
was “neither charge nor findings by the lower court of matters showing what
amounts to a disobedience of the injunction by the petitioner” (original italics)].)
These concerns are also reflected in rule 65(d)(2) of the Federal Rules of
Civil Procedure (28 U.S.C.). It specifies that certain nonparties, “who receive
actual notice” of the injunction and are “in active concert or participation” with the
enjoined party may be bound by its terms. (Ibid.; see Regal Knitwear, supra, 324
U.S. at p. 15 [whether an injunction may be enforced against a nonparty “depends
on an appraisal of his relations and behavior and not upon mere construction of
terms of the order”].) Evidentiary findings assessing a nonparty’s notice and acts
in concert or participation with an enjoined party may occur at a contempt hearing,
when the plaintiff seeks to enforce the injunction against a nonparty. (See Ross,
supra, 19 Cal.3d at pp. 903-904; Regal Knitwear, supra, 324 U.S. at p. 16.)
So Berger, Ross, and Berry clearly establish that California courts may
enforce an injunction against a nonparty. A nonparty subject to such an injunction
must not only have notice of it, but must have aided, abetted, acted in collusion
with or in assertion of the enjoined defendant’s rights, or otherwise acted in
concert with or support of the enjoined defendant to violate the injunction.
IV.
The Court of Appeal affirmed the superior court’s denial of Yelp’s motion
vacating the default judgment against Bird. In doing so, the Court of Appeal
concluded that the superior court had authority under settled principles of
California law to include a provision in the injunction that ordered Yelp to
effectuate the injunction against Bird by deleting her defamatory reviews from its
website. (Hassell, supra, 247 Cal.App.4th at p. 1355.) Relying on the superior
court’s observation in its order denying Yelp’s motion to vacate, the Court of
Appeal reasoned that California law provides that injunctions can be applied to
nonparties, such as agents, servants, employees, aiders, abettors, etc. (Ibid.)
32
Having found no due process violation at the superior court proceedings, the Court
of Appeal concluded that the superior court had the authority to issue the
injunction directing Yelp to remove Bird’s posts. (Id. at p. 1357.)
We do not believe the Court of Appeal was wrong to conclude that Yelp’s
degree of notice and involvement below assuaged due process concerns. By filing
and appearing in the superior court to argue its motion to vacate the default
judgment, Yelp initiated a proceeding through which it had opportunity to
participate and be heard. The superior court considered Yelp’s motion and held a
hearing on August 27, 2014. In its papers and at the hearing, Yelp argued that as
an interactive service provider, section 230 granted it immunity from compliance
with the injunction because the reviews were provided by a third party. Yelp also
availed itself of the opportunity to argue that the judgment, to the extent it was
directed at Yelp, violated its due process rights as a nonparty. Yelp further
asserted that Hassell did not sufficiently plead or prove their case. Specifically,
Yelp argued that Hassell did not make any reasonable attempt to locate Bird
before attempting service, did not prove that Bird was provided adequate notice of
the action against her, and failed to submit evidence that confirmed Bird created
the user accounts that authored the reviews at issue. And Yelp declared that the
injunction against Bird could not bind Yelp because Hassell could not prove Yelp
acted as an aider or abettor to Bird’s disobedience of the injunction and it merely
disregarded the injunction upon receiving a copy of the default judgment.
It is quite clear Yelp was able to participate and assert arguments against
the entry of the injunction. Yelp did so at a motion to vacate the underlying
judgment, without the initiation of any contempt proceedings, and after more than
four months of inaction following the entry of the underlying judgment. Yelp’s
involvement at the hearing on the motion to vacate the default judgment, before it
33
suffered any deprivation of its rights, was functionally equivalent to participation
at the entry of the default judgment.
But this due process appraisal does not merge with the separate issue of
what California law requires before a court imposes an injunction on a nonparty.
A nonparty may indeed be enjoined where it has notice of the injunction and acts
as an aider, abettor, or in concert with or in assertion of the enjoined party’s rights.
Section 230 does not grant a nonparty immunity from compliance with an
injunction because it functions as a website or because the injunction touches upon
the website’s role as a publisher. The plurality opinion attempts to characterize
our explanation that the injunction could run to Yelp under longstanding principles
of California law as a theory premised merely upon Yelp’s awareness of the
injunction and its refusal to remove the defamatory reviews. (Plur. opn., ante, at
pp. 25-26.) This assertion is inaccurate. Rather, we recognize that a judicial
finding that Yelp had notice of the injunction and aided and abetted Bird’s
violation of the injunction may authorize the injunction to bind Yelp. Here, the
Court of Appeal expressly declined to consider the superior court’s aiding and
abetting determination. (Hassell, supra, 247 Cal.App.4th at pp. 1355, 1357.)
Without an assessment of Yelp’s actions aiding, abetting, or acting in concert or
with Bird to violate the terms of the injunction, the Court of Appeal’s conclusion
that Yelp may be specifically directed to remove Bird’s posts appears
unsubstantiated. The factual determination regarding Yelp’s actual notice of the
injunction and its participation as an aider or abettor is necessary before the
injunction against Bird may run to Yelp.
Although few existing cases find an Internet platform to have acted as an
aider and abettor, a range of evidence and interactions could support such a
finding. For example, Yelp cites Blockowicz, a Seventh Circuit Court of Appeals
case, to argue that its refusal to remove Bird’s posts is mere “inaction” insufficient
34
to prove it acted as an aider and abettor to Bird. We are not convinced that logic
categorically protects Yelp from injunctions requiring removal of unlawful
content. The Blockowicz court observed that the plaintiffs presented no evidence
of any contact between the defendants and the website operator or manager after
the injunction was issued, nor was there any indication that defendants and the
employees for the website worked in concert to violate the injunction.
(Blockowicz, supra, 630 F.3d at p. 568.) What the court concluded is that the
record indicated the website operator and manager simply did “nothing relevant to
[the] dispute” after the injunction was issued, so their “mere inactivity is simply
inadequate to render them aiders and abettors” in violating an injunction directing
a user to remove defamatory statements from the website. (Blockowicz, supra,
630 F.3d at p. 568.) Here, 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. (Ibid.) 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. (See Arista Records, LLC v. Tkach
(S.D.N.Y. 2015) 122 F. Supp. 3d 32, 36 [reasoning that active concert or
participation exists where a nonparty with actual knowledge of the judicial order
violated it for the benefit of, or to assist, a party subject to the injunction].) An
injunction may be enforced against a nonparty service provider where the
provider’s services are knowingly used to facilitate the violation of an injunction.
35
(Ibid.) A provider advancing legal arguments on behalf of the defendant or
seeking to vindicate the rights or claims of the defendant may also be deemed a
nonparty properly bound by the injunction against the defendant. (See Berger,
supra, 175 Cal. at pp. 721-722 [reasoning that nonparties may be bound by an
injunction where they have knowledge of the injunction and act “in combination
or collusion” with defendants or in assertion of defendants’ rights or claims].)
Where a service provider engages in these behaviors or otherwise acts in concert
with a user to spread defamatory information, it would –– at best –– cut sharply
against section 230’s underlying logic to let the provider enjoy section 230
immunity. (Barrett, at p. 64 (conc. opn. of Moreno, J.) [concluding that section
230 immunity is not intended to apply where an interactive computer service
provider and user are not “authentically independent” and act in concert to defame
someone].)
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. (See Ross, supra, 19 Cal.3d at pp. 904, fn. 4, 916.) 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
36
service. The plurality opinion appears to maintain in contrast that section 230
grants Yelp immunity from compliance with the injunction even where Yelp is
found to have aided, abetted, or acted in concert with or support of Bird to violate
the injunction. (Plur. opn., ante, fn. 14 at pp. 25-26.) We are unpersuaded.
Neither the plurality opinion’s logic nor its reliance upon a nonbinding federal
case support the conclusion that section 230 would bar as “publication decisions”
all the conduct that a trial court might rely on to make valid factual findings that
action in concert or collusion occurred between a service provider and a
defendant.
In its order denying Yelp’s motion to vacate the defamation judgment, the
superior court first cited Ross and Berger to explain how injunctions can apply to
nonparties under California law. The court then stated three factual findings with
respect to whether Yelp aided, abetted, and acted in concert or with Bird in
violation of the injunction. “First, the evidence establishes that Yelp highlighted
at least one of Bird’s defamatory reviews about the Hassell Law Firm on its
website by featuring it as a ‘Recommended Review.’ ” Second, the court found
that Yelp asserted arguments on Bird’s behalf, evidencing a unity of interest
between Bird and Yelp: “the facts indicate that Yelp is acting on behalf of Bird.
Yelp moves to set aside the judgment in its entirety, including the portions of the
judgment that pertain only to Bird. Additionally, in its moving papers, Yelp
argues, on behalf of Bird, that Hassell failed to establish that Bird actually posted
the Yelp reviews.” Third, the court found that Yelp’s refusal to delete the
defamatory reviews “is inconsistent with its own terms of service, which require
all Yelp.com users to ‘agree not to . . . Violate our Content Guidelines, for
example by writing a fake or defamatory review. . . .’ ” The court found that
“Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp
37
has demonstrated a unity of interest with Bird” and thus denied the motion to
vacate the judgment.
From the hearing transcript, it is clear the superior court heard and asked
questions about the evidence of Yelp’s conduct to aid, abet, act in concert with or
support of Bird. These questions explored Yelp’s position in its papers and at oral
argument, asserting that the underlying default judgment against Bird be vacated,
that Bird received insufficient notice, and that Hassell failed to prove Bird
authored the defamatory posts. But the superior court’s order denying Yelp’s
motion to vacate the default judgment does not apply the law to the facts of this
case with sufficient detail. For example, the superior court’s finding that Yelp
acted on behalf of Bird was not accompanied by an explanation of the legal basis
for the superior court’s conclusion. The superior court may have reasoned that
under Berger, Yelp may be bound by the injunction because it acted “in assertion”
of Bird’s “rights or claims” in presenting arguments that Hassell failed to
adequately serve Bird and submitted insufficient evidence that Bird created the
defamatory posts. (See Berger, supra, 175 Cal. at pp. 721-722.) Yet the order
does not describe the legal authority on which the court relied to reach its
determination. Similarly, the superior court may have determined that the letter
issued by Yelp’s director of litigation asserting that it would not comply with the
injunction, although removal of the posts was feasible and authorized under its
terms of service, evidenced a willful refusal to comply with the injunction that
supported an aiding and abetting finding. (See Ross, supra, 19 Cal.3d at pp. 904,
fn. 4, 916.) But the superior court’s order does not engage in an analysis of the
legal bases for its conclusion that Yelp aided and abetted Bird in violating the
injunction.
Whether Yelp aided, abetted, or acted in concert with or support of Bird’s
violation of the injunction must be assessed using the proper legal standard for an
38
injunction to run to a nonparty, as enunciated in our precedent in Berger and Ross,
and analyzed with sufficient detail. We would therefore vacate the judgment of
the Court of Appeal and remand for further proceedings in accordance with the
legal standard set forth in this opinion.3
V.
Our society’s legal commitments balance the value of free expression and a
relatively unregulated Internet against the harms arising from damaging words or
private images that people are not lawfully free to disseminate. To honor those
commitments in this case, we must begin by properly interpreting the evocatively-
named Communications Decency Act. We must apply the relevant principles of
due process that guarantee parties a right to their day in court. And we must give
effect to California laws allowing injunctions to be imposed on nonparties when
they are aiding and abetting unlawful conduct. No one involved in this litigation
or affected by our decision today deserves anything less.
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. Nothing in section 230 allows Yelp to ignore a
3 Justice Kruger believes remand is unwarranted to consider whether Yelp
aided and abetted Bird’s noncompliance with the court’s order. (Conc. opn. at pp.
11-13, fn. 5 at p. 13.) Yet it is very much at issue in this case whether Yelp aided,
abetted, or acted in concert with or in support of Bird. The trial court in this case
made factual findings that Yelp aided, abetted, and acted on behalf of Bird ––
conclusions supporting its determination that Yelp may be bound by the
injunction. The trial court’s factual findings were based on Yelp’s pre- and post-
injunction conduct, including Yelp’s relationship with Bird through its terms of
service and as described in Bird’s updated review, Yelp’s legal arguments
regarding Bird’s claims, and Yelp’s maintenance of the defamatory posts on its
website. The briefs before us discuss whether the injunction was proper under
California law, and whether Yelp acted in concert with Bird. Neither section 230
nor due process law fully resolve, by themselves, whether the injunction was
properly issued against Yelp.
39
properly issued court order meant to stop the spread of defamatory or otherwise
harmful information on the Internet. Instead the statute’s terms and scheme,
applicable case law, and other indicia of statutory purpose make clear that Internet
platforms are not exempt from compliance with state court orders where no cause
of action is filed against, and no civil liability is imposed on, the provider for its
publication of third party speech. Yelp may be subject to a properly issued
injunction from a California court. Where an entity had the extensive notice and
considerable involvement in litigation that Yelp has had in this case, due process
concerns are far less likely to impede a court from fashioning a proper injunction
to prevent aiding and abetting of unlawful conduct. But whether Yelp aided,
abetted, or otherwise acted sufficiently in concert with or colluded to advance
Bird’s defamatory conduct must be addressed using the proper legal standard for
an injunction to run to a nonparty, as we explained in Berger and Ross. Because
we cannot establish that the superior court made the necessary factual findings
regarding Yelp’s conduct in this situation, applying a legal standard consistent
with the views expressed in this opinion, we would vacate the judgment of the
Court of Appeal and remand for further proceedings not inconsistent with this
opinion.
CUÉLLAR, J.
I CONCUR:
STEWART, J.*
* Associate Justice of the Court of Appeal, First Appellate District, Division
Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
40
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Hassell v. Bird
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 247 Cal. App. 4th 1336
Rehearing Granted
__________________________________________________________________________________
Opinion No. S235968
Date Filed: July 2, 2018
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: Donald J. Sullivan
__________________________________________________________________________________
Counsel:
Aaron Schur; Davis Wright Tremaine, Thomas R. Burke, Deborah A. Adler and Rochelle L. Wilcox for
Objector and Appellant.
Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Ari Holtzblatt and Mark D. Flanagan for
Airbnb, Inc., Automattic Inc., craigslist, Inc., Facebook, Inc., IAC/InterActiveCorp, Reddit, Inc., Snap Inc.,
Pinterest, Inc., Thumbtack, Inc., Twitter, Inc., and Yahoo! Inc., as Amici Curiae on behalf of Objector and
Appellant.
J. Joshua Wheeler; Katie Townsend, Bruce D. Brown, Gregg P. Leslie and Ariel B. Glickman for The
Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free
Expression, American Society of News Editors, Association of Alternative Newsmedia, BuzzFeed, The
E.W. Scripps Company, International Documentary Association, Investigative Reporting Workshop at
American University, The McClatchy Company, Media Law Resource Center, MPA – The Association of
Magazine Media, National Press Photographers Association, News Media Alliance, Online News
Association, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times
Company, Society of Professional Journalists, Student Press Law Center and Tully Center for Free Speech
as Amici Curiae on behalf of Objector and Appellant.
Wilson Sonsini Goodrich & Rosati, David H. Kramer, Shelby Pasarell Tsai, Brian M. Willen and Jason B.
Mollick for Google Inc., as Amicus Curiae on behalf of Objector and Appellant.
NYU Technology Law & Policy Clinic and Jason M. Schultz for Change.org, Engine, GitHub, Inc., A
Medium Corporation, Patreon, Inc., SiteJabber and Wikimedia Foundation, Inc., as Amici Curiae on behalf
Objector and of Appellant.
Public Citizen Litigation Group, Paul Alan Levy; Juelsgaard Intellectual Property and Innovation Clinic,
Phillip R. Malone, Jef Pearlman, Daniel Chao and Erica Sollazzo for Public Citizen, Inc., and Floor64, Inc.,
as Amici Curiae on behalf of Objector and Appellant.
Page 2 – S235968 – counsel continued
Counsel:
Greenberg Traurig, Ian C. Ballon and Lori Chang for Glassdoor, Inc., and TripAdvisor LLC as Amici
Curiae on behalf of Objector and Appellant.
Horvitz & Levy, Jeremy B. Rosen, Scott P. Dixler and Matthew C. Samet for ACLU of Northern
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 as Amici Curiae on behalf of Objector and Appellant.
University of Arizona College of Law and Jane Yakowitz Bambauer for First Amendment and Internet
Law Scholars as Amici Curiae on behalf of Objector and Appellant.
Fenwick & West, Andrew P. Bridges, Tyler G. Newby, Guinevere Jobson and Armen N. Nercessian for
Internet Association and Consumer Technology Association as Amici Curiae on behalf of Objector and
Appellant.
Brown White & Osborn, Kenneth P. White and Evelina Gentry for Ava Bird as Amicus Curiae on behalf of
Objector and Appellant.
Anette J. Beebe; Gingras Law Office and David S. Gingras for XCentric Ventures, LLC as Amicus Curiae
on behalf of Objector and Appellant.
Scott & Cyan Banister First Amendment Clinic at UCLA School of Law and Eugene Volokh as Amici
Curiae on behalf of Objector and Appellant.
Duckworth Peters Lebowitz Olivier, Monique Olivier and J. Erick Heath for Plaintiffs and Respondents.
Harder Mirell & Abrams, Douglas E. Mirell, Charles J. Harder and Dilan E. Esper for Erwin Chemerinsky,
Valencia Corridor Merchants Association, Derik Lewis, Aaron Morris and Henry Karnilowicz as Amici
Curiae on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas R. Burke
David Wright Tremaine
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
(415) 276-6500
Monique Olivier
Duckworth Peters Lebowitz Olivier
100 Bush Street, Suite 1800
San Francisco, CA 94104
(415) 433-0333