California Supreme Court Puts Counsel for Yelp Through the Grinder in Hassell v. Bird

The tale of Hassell v. Bird.

I previously published a long article on the case of Hassell v. Bird, and I was invited to file a friend of the court brief in the California Supreme Court after it took up the case.

My original article provides much greater detail, but briefly for purposes of this article, Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc.

Here, the trial court felt that it was reasonable to require Yelp to take down the review, even though it was not a party to the action. The review had been deemed to be defamatory, and it was not Yelp’s speech that was being attacked, so certainly Yelp would have no horse in the race. Indeed, presumably Yelp wants the reviews posted on its site to be as truthful as possible, so it should welcome an order that would result in the removal of a false review.

But Yelp’s business model depends on negative reviews, so it cried foul. Even after the Court of Appeal found that the judge’s order was entirely proper, Yelp went to the Supreme Court to fight for the right to publish false and defamatory reviews.

Today, I attended the oral argument held in that case, in front of the seven justices of the California Supreme Court.

It was pretty painful to watch, given the positions counsel for Yelp was forced to defend.

Yelp was represented by Thomas Burke, from a firm called Davis Wright Tremaine. Burke did a completely competent job of presenting Yelp’s argument, but the problem for him (and Yelp) was that he was forced to present a logically indefensible argument while fighting for an untenable result. It made for oral argument that was painful to watch.

But first, a little legal background.

Before getting to the Burke’s time in the meat grinder, allow me to set the legal stage.

Section (c)(1) of the Communications Decency Act (“CDA”) provides that “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.” It is these few words that give immunity to sites such as Yelp for the information published by third parties.

But often forgotten is section (e)(1), which provides that “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.”

Everyone agrees that Yelp cannot be sued for the reviews posted by its users. If at the outset of Hassell’s action against Bird, it had decided to include Yelp as a defendant, just for the purpose of seeking injunctive relief (the removal of the review), there is no question that Yelp would have brought an anti-SLAPP motion, claiming that the lawsuit against Yelp runs afoul of the CDA.

But simply including Yelp in the order to remove the review is the one means available for removing a review that does not run afoul of the CDA. We want to maintain the “vibrant and competitive free market” of the internet, as the CDA puts it, and that would be irreparably harmed if sites such as Yelp had to defend every challenged posting, or even had to appear in actions seeking injunctive relief. The best solution for all concerned is to let the defamed party duke it out with the defamer, and only involve Yelp when and if the content is deemed to be defamatory.

Some have argued even that is too much. They contend that requiring Yelp to deal with the many takedown orders will be too onerous, and could chill free speech. Respectfully, that argument is pure horse dung. Every site that allows third parties to post content brings with it a certain amount of oversight and maintenance. If I were to post the entire Harry Potter series by way of reviews on Yelp, no one would seriously argue that Yelp has no duty to remove that copyrighted material just because it was posted by a third party. More commonly, someone will post a copyrighted photo, and the site receives a DMCA takedown notice, to which it must comply or face liability.

Few people will have the time, energy and resources to take a case all the way to trial in order to have a Yelp review adjudicated as defamatory. The number of takedown orders will be relatively small.

Yelp’s crazy arguments.

So now you have the legal background. Let’s get to Yelp’s crazy arguments.

As you saw above, Yelp can’t be sued directly for the third party content, so Hassell v. Bird really just comes down to whether including Yelp in the injunction runs afoul of the CDA, keeping in mind that the CDA states that it does not trump State law so long as that law is consistent with the CDA.

Yelp instead made the argument about due process, arguing that the reviews are also its speech, and therefore it should have been permitted to make its own First Amendment arguments. It was deprived of that ability by not being named in the action, Yelp argued.

Well, that argument naturally invokes the question, “Does Yelp WANT to be named in lawsuits?”, which the justices asked in about 12 different ways, never receiving a straight answer.

So, on the one hand Burke was arguing that Yelp should have been named in the action so it could have its day in court, but when asked how Yelp would have responded to being named in the action, Burke eventually and painfully had to admit that Yelp would likely respond with an anti-SLAPP motion.

Sorry for all the whipsawing, but that was the nature of the argument. “We should have been named in the action, but it we had been named in the action we would have immediately brought a motion to be removed from the action,” was basically the entire Yelp argument.

The point that was sadly never made clear during argument was that Yelp being in the action would not have changed the result one whit. If Hassell had attempted to navigate a narrow course between including Yelp in the action, while not running afoul of the CDA, perhaps by including Yelp only in a claim for injunctive relief, it would have failed. Yelp would have brought a successful anti-SLAPP motion, claiming it cannot be sued for third-party content.

But that result would not have dictated any different result as to the eventual order. Yelp might be out of the action, but the trial court would still be faced with fashioning an order best designed to getting the review removed, and the only way to absolutely guarantee the removal of the review would be by ordering Yelp to do so.

One interesting exchange in that regard came from (as best I recall) Chief Justice Tani G. Cantil-Sakauye. Burke was attempting to make the argument that the injunction against Yelp was unnecessary, because Bird can remove her own review, and to date Hassell had not even attempted to force her to do so with a contempt proceeding. But the Chief Justice pointed out that by Yelp’s own terms of use, there is no guarantee that it will allow users to remove their own reviews.

How, then, is a defamed party to remove content from Yelp?

The Justices expressed concern even after a review has been deemed to be defamatory, and the defamer has been ordered to take it down, Yelp can just thumb its nose at the courts and say, “Well, that’s cool and all, but we choose to keep it up.”

As Justice Leondra R. Kruger put it, “So Section 230 is basically a license to continue to publish unlawful or defamatory content in perpetuity?”

Counsel for Hassell has an easier time.

Counsel for Hassell, Monique Olivier, from the firm of Duckworth Peters Lebowitz Olivier, had a much better time of it, given that she was not forced to take such untenable positions. Still, it was not a walk in the park for her either.

Oliver was walked into a bit of a corner by the Chief Justice. Oliver quite properly explained that Hassell did not name Yelp in the action because doing so would have been met with an anti-SLAPP motion. The Chief Justice took that to be basically an admission that Hassell had not named Yelp to avoid the process, stating “well, doesn’t Yelp have the right to appear and defend on that basis?”

That misses the point. The best analogy I can come up with is an action against trust property. When you sue for property held by a trust, you sue the trustee, not the trust. The trust is not a proper party, but the eventual order will order the trustee to do something with the trust property. If I explained to the court that I did not name the trust because doing so would have resulted in a motion to strike or demurrer, that is not an admission that I am somehow gaming the system by keeping the trust out of the lawsuit. It is just a recognition of the reality that the trust cannot be name.

So it was here. Hassell can’t include Yelp in the action, but it is sophistry for Yelp to then argue that it should have been included so it could have its day in court. Its day in court would have consisted entirely of arguing that it should not have been named. The Chief Justice may have missed that point.

Justice Goodwin Liu appeared to get it, based on his questions. Burke was making the specious argument that had Yelp someone been named in the action, it would have been afforded the opportunity to show that the review was not defamatory. This argument was specious both because Yelp would have never reached that point, and because Yelp had no ability to show one way or the other whether the speech was defamatory, since it possesses no knowledge of the representation. But Liu called Burke’s bluff, and assumed the fiction that Yelp would appear and argue that the review was not defamatory.

“But what if you had done so, and the result had been the same, with the trial court concluding that the review was defamatory and ordering Yelp to take it down. Would you have honored the order?”

Burke conceded, with sufficient contingencies, that Yelp would likely not follow the order and appeal. Justice Liu (and others) repeatedly asked Burke what Yelp would have done if it had been named in the action.

“It sounds like you’re having your cake and eating it too,” Liu said.

“Quality of the judgment.”

Burke got walked into his own corner on one final point.

Since Bird utterly failed to participate in the process, the judgment in Hassell v. Bird came from a default prove-up hearing. There was no question that she knew about the action because she discussed it on social media, but she nonetheless chose to ignore it.

In its appeal brief, Yelp had tried to make the argument that the holding of Balboa Island (the Supreme Court case holding that a court may enjoin speech after it has been determined to be defamatory) should not apply to a default judgment. I pointed out the fallacy of that argument at the time. Such a determination cannot turn on the willingness of the defendant to participate on the process.

Counsel for Yelp didn’t listen to me. Justice Liu set a trap, asking if Burke’s analysis was based in part of the “quality of the judgment” — it having come from a default prove-up. Burke fell into the trap (or at a minimum stayed consistent with the papers), contending that yes the nature of the judgment further militates against its validity. I anticipate there will be language in the opinion, making clear that a default judgment is not somehow lesser in value than a court trial.

My prediction of the result.

The evil part of me wants the court to hoist Yelp on its own petard. Yelp says it wants the opportunity to defend the reviews of its users. The Court could fashion a procedure, whereby Yelp can be named in actions for injunctive relief, so long as no liability is sought as to Yelp. Yelp would be free to appear in the action to assert its self-proclaimed First Amendment right to leave up defamatory posts, or it could ignore the action and let the parties involved adjudicate whether the review is defamatory, and then follow any order issued by the court.

But I fear the case could go sideways because of the completely unnecessary statements of the trial judge. When Yelp brought a motion attacking the injunction, the trial judge stated that Yelp was liable as an “aider and abettor.” This seemed to really bother some of the Justices, since it is contrary to the CDA. To hold that Yelp is liable as an aider and abettor to the third party who posted the defamatory review is antithetical to the intent and wording of the CDA. Counsel for Hassell properly argued that the judge’s ruling was basically a throwaway statement, since it did not turn on that determination, and in fact the Court of Appeal did not use that as a basis to uphold the decision of the trial court, but some of the Justices seemed unconvinced.

I think the Supremes might punt, and conclude that under proper circumstances Yelp could be made to obey a takedown order, but find that “aider and abettor” conclusion keeps this from being such a case.

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Aaron Morris
Morris & Stone, LLP
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