Yelp and the constitutional right to distribute bad reviews

September 23, 2016

(Reuters) – In January 2013, an ex-client of the California personal injury lawyer Dawn Hassell posted a one-star review of Hassell’s firm on Yelp, the online consumer site. The reviewer used a pseudonym, but Hassell figured out it was Ava Bird, whom she had represented briefly. Hassell tried to get Bird to change or take down the review, which the lawyer said was factually inaccurate and defamatory. When Bird doubled down, Hassell sued her in state court in San Francisco. In July 2013, Hassell won a default judgment against Bird, who did not appear in court to defend her supposedly defamatory statements.

The lawyer did not name Yelp in the suit, but in November, she asked the court to order Yelp to remove Bird’s posts. Without hearing from Yelp, the trial judge granted Hassell’s request for a take-down order.

After Yelp was served with the order directing it to take down the post, it moved to vacate Hassell’s judgment, arguing, among other things, that it did not receive due process because it never had a chance to defend against the take-down order. The trial judge denied Yelp’s motion. In June, California’s Court of Appeal upheld the decision ordering Yelp to remove the defamatory posts.

This week, after a broad swath of the Internet attacked the appellate court’s ruling, the California Supreme Court agreed to hear the case.

This appeal has enormous consequences for online sites that post content created by users. As Facebook, Microsoft and Twitter said in one of the many amicus briefs backing Yelp’s request for Supreme Court review, Hassell’s case has created a roadmap for well-funded plaintiffs to erase online criticism through default judgments. (Santa Clara law professor Eric Goldman, who has been tracking this case assiduously, has very helpfully posted all of the briefing before the California Supreme Court at his Technology and Marketing Law Blog.) Businesses are already following Hassell’s map, according to an amicus brief by the employer review site Glassdoor, which said employers have begun sending demand letters citing the Yelp opinion as grounds to compel the site to take down critical reviews by employees.

The Yelp appeal raises obvious due process and Communications Decency Act issues. Yelp contends in its petition to the state Supreme Court that Hassell deliberately chose not to sue Yelp in her original complaint to avoid the CDA’s safe harbor provision, which protects Internet publishers from liability for content posted by users. The case will also test whether the site can be bound by what it calls an injunction issued in a case in which it was not a party and did not register an appearance. (Hassell calls the court’s ruling a removal order – a bit of semantics that could bear on the order’s legality.) The take-down order is the key stretch of road on Hassell’s map to the land of no criticism, so Yelp’s due process defense will be closely watched.

Hassell’s best argument in this litigation is that Ava Bird’s posts were determined to be defamatory. There’s no safe harbor for defamation, Hassell’s lawyers said in their response to Yelp’s petition for a hearing at the Supreme Court. And Yelp has no constitutional right to host defamatory content, according to Hassell’s side. “While Yelp wants to frame this case as implicating important constitutional protections, that framing falls apart when the actual, narrow record is considered: three adjudged defamatory postings that Yelp was ordered to remove,” Hassell contends.

Her arguments implicate the constitutional question I’m most interested in as this case proceeds: Do online publishers have First Amendment rights distinct from those of the users who post content and must they be afforded an opportunity to defend those rights? This is perhaps a more subtle issue than Yelp’s due process right to be heard before a court directs its conduct, but it’s no less important.

Yelp and several of its amici – including the American Civil Liberties Union, the Reporters Committee for Freedom of the Press and other media concerns, and a group of Internet law professors – contend that online publishers do, in fact, have a distinct First Amendment interest in the user content they host. The First Amendment right to distribute speech, according to Yelp, has been upheld by the U.S. Supreme Court (in cases involving obscene materials). As a result, Yelp and its amici argue, the site’s First Amendment rights were abridged when it was ordered to take down posts whose legality it never had a chance to defend.

The ACLU’s brief offered a cogent explanation why this is a problem: “A distributor like Yelp may often value the speech more than the original speaker, or at least be in a better position to defend it,” it said. “For example, when a political operative inadvertently reveals too much about her candidate, she may be happy to see her ill-considered words suppressed; but the reporter who heard the remarks – and his newspaper – may value it immensely and be willing to fight to publish it as part of a story on the candidate. The newspaper’s right to include that quote in a story cannot be made to depend on the outcome of a lawsuit in which no party shares the paper’s interests or protects its rights.”

Publishers enjoy free speech protection that others don’t. A newspaper’s source, for instance, may be subject to prosecution for stealing documents she then leaks to a reporter, but the newspaper is not liable for writing about stolen documents if they’re a matter of public interest.

Moreover, as several of Yelp’s amici pointed out, publishers may be likelier than individual posters to go to court to defend comments, especially when the commenter has not even used his or her real name. In the Hassell case, for instance, the Yelp postings were deemed defamatory based only on Hassell’s assertions. No one came to court to argue that the reviews deserved First Amendment protection.

It could turn out, when all is said and done, that Yelp has no First Amendment right to continue to distribute Ava Bird’s comments about her onetime lawyer. But it is critical for the future of free speech on the Internet that the California Supreme Court take Yelp’s rights into account.

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