Internet

Yelp Refuses to Remove Reviews Ruled Defamatory—With Good Reason. Will California Supreme Court Agree?

The precedent-setting case could have major implications for all sorts of online publishers.

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Yelp is refusing to remove reviews posted to the website that were ruled defamatory by California courts. The company has appealed to the California Supreme Court, which this week agreed to take on the case. And it's a good thing, too—as it stands, California courts have essentially created a European-style "right to be forgotten," in which people could force the removal of online content that portrays them in a true but unflattering light.

Legal scholar Eugene Volokh called the case "an interesting and important" one for Internet law and civil procedure. In an August letter asking the California Supreme Court to review the case, Volokh and co-authors said the appellate court's decision jeopardized "a vast range of online speech."

The Hassell Group

Another signatory to the letter, Santa Clara University law professor Eric Goldman, described the decision—which, because it was one of the rare (less than 10 percent) appellate rulings marked as published, is citable and binding precedent—as "flat-out wrong" and wrote that he "can't stress enough how terrible [the] opinion is."

The case revolves around personal-injury lawyer Dawn Hassell, managing attorney of the Hassell Law Group. In 2013, Hassell sued former client Ava Bird over negative comments Bird made on Yelp.com. Hassell said Bird's comments were defamatory.

Defamatory speech falls under one of a few exceptions to broad First Amendment protection, and Yelp's lawyers say it usually follows court orders to take down content that has been ruled defamatory. But in this case, the reason the court ruled in Hassell's favor is because Bird submitted no documents or statements in her defense and never showed up to the trial.

The San Francisco County Superior Court issued a default judgement to Hassell, awarding her $557,918 and ordering Bird to remove the offending content from Yelp. In addition, the court held 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." (J.D. was allegedly an alias of Bird's on Yelp, though this was never definitively established.) The judgment became final on March 16, 2014.

Yelp was served with an injunction to remove Bird's reviews if she didn't do it herself. She didn't. Neither did Yelp.

The company's lawyers contended that it couldn't be compelled to remove Bird's content because Yelp hadn't been party to the court proceedings in question. Bird may not have had the resources to fight Hassell's lawsuit, but Yelp certainly does. Yet Yelp was never named in Hassell's suit, and thus had no opportunity to defend itself.

In a letter to Hassell, Yelp said the court's judgement and order had been "rife with deficiencies and Yelp sees no reason at this time to remove the reviews at issue. Of course, Yelp has no desire to display defamatory content on its site, but defamation must first be proven."

That May, Yelp filed a motion to set aside and vacate the Bird decision on the "grounds that the legal basis for the decision is not consistent with or supported by the facts or applicable law." Specifically, it asserted that the First Amendment protected Yelp from having to remove the content, as did section 230 of the federal Communications Decency Act. It also claimed that the company's right to due process had been ignored.

A California Superior Court denied the order. It also found that Yelp was "aiding and abetting the ongoing violation of the injunction" and thus "demonstrated a unity of interest with Bird."

Yelp then appealed to the California Court of Appeal for the First Appellate District. In June, the appellate court denied Yelp's motion to vacate the decision and upheld the bulk of the original decision. It did remand the case back to the trial court with the direction to limit Yelp's removal requirements to "specific defamatory statements" and not all future posts from Bird's account.

Because Bird's statements had been found defamatory by default by a lower court, the appeals court decided that there were no First Amendment issues of concern. It also dismissed any due-process concerns. And as for section 230, which prevents third-party publishers and platforms from being held liable for user-generated criminal content, the court found that it didn't apply because no liability was imposed on Yelp.

Having to remove potentially factual reviews when providing an open forum for factual reviews is the core of Yelp's business model? Not a liability, says the court. Facing contempt of court charges and economic penalties if it doesn't comply? Not a liability, says the court. In fact, "sanctioning Yelp for violating a court order" to remove the posts "would not implicate section 230 at all," it states.

The ruling exposes user-generated content sites—a category which includes everything from Yelp to Twitter to Backpage to any outlet with a comments section—to legal liability for things users post.

It also "opens up holes that everyone… can abuse," notes Goldman. Following the pattern laid out here in this case, all it takes is a defendant that doesn't fight back for anyone disgruntled about online content to force its removal by a third-party. They could also use this process to force removal of posts by unrelated but unidentified users by claiming that these, too, were made by the no-show defendant. It worked in Hassell's case even though it was never proven that user "J.D." was really Ava Bird. Regardless, Yelp was ordered to remove posts from both Bird's confirmed handle, Birdzeye B, and by user J.D.

As Goldman puts it: "Voila! A right to be forgotten in the U.S., despite the First Amendment and Section 230." The opinion's "scrubbing roadmap should be equally effective against search engines," he predicts.

Libertarian-leaning think tank the R Street Institute has also been highly critical of the decision. It "creates an end-run around constitutional due process, eviscerates the First Amendment rights of publishers to distribute third-party speech and creates a loophole to the immunity granted to online publishers by Section 230 of the federal Communications Decency Act," opined Steven Greenhut, R Street's Western Region Director (and a Reason contributor) and Cameron Smith, R Street general counsel, in a letter to the California Supreme Court.

Yelp's appeal to the state Supreme Court seeks to "reverse the orders of the trial court and appellate court, and direct those courts to enter an order granting Yelp's Motion to Vacate the Judgment."

"Occasionally a legal principle adopted to prevent abuse gets transformed through misinterpretation into a weapon for abuse," Yelp stated in its petition. "When that happens in California, it falls to this Court to step in and correct such misuse. This is such a time."

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  1. If California courts have essentially created a European-style “right to be forgotten,” why is it a good thing that the California Supreme Court is going to hear this case?
    Wouldn’t it be better for a more libertarian-leaning state supreme court to take this issue up via a similar Yelp-style case first? Let that ruling set the precedent rather than cementing California’s version of reality.

    1. State courts don’t set precedent for other states.

  2. And it’s a good thing, too?as it stands, California courts have essentially created a European-style “right to be forgotten,” in which people can force the removal of online content that portrays them in a true but unflattering light.

    If they’ve been ruled as defamation by courts, doesn’t that imply that the reviews are not factual?

    1. My thought as well.

    2. But in this case, the reason the court ruled in Hassell’s favor is because Bird submitted no documents or statements in her defense and never showed up to the trial.

      Just because the court ruled in the plaintiff’s favor does not mean that the case in question was actually proven.

      1. True but mostly irrelevant from a legal standpoint.

      2. Just because the court ruled in the plaintiff’s favor does not mean that the case in question was actually proven.

        So what we’re to be upset about is that default judgments are given when a defendant fails to appear at trial?

        I’m with Yelp’s laywers on this, though. They were not party to the proceedings, not named as defendants, and should not be subject to judgments against them until they get their day in court. We don’t need America’s judiciary getting the kind of power over free speech that apparently is afforded to judges in Brazil (who ordered all of WhatsApp shut down because they couldn’t pressure the company to decrypt stuff for them).

        My point was merely that the sentence was sloppily written and self-contradictory. It’s robably a slippery slope argument too (though it remains to be seen if it’s fallacious).

        1. The plaintiff claimed damages and the named defendant never showed up to contest. Therefor, by default judgement, the named defendant must pay up.

          However, defamation was never proved, as evidence was never even heard. Yelp should not have t remove the content until they are named as a defendant and evidence is heard that there was indeed illegal defamation.

          Another huge implication is that a free market depends on the ability of consumers to assess and evaluate companies they consider doing business with. If those companies can hide information simply because it’s negative then consumers are being denied fairness in the market place. It will give companies license to hide the truth.

    3. The article indicates the court issued a default ruling, as the defendant didn’t submit any documents or statements in her defense or even show up at the proceedings. Yelp’s lawyers contend defamation was not proven, so they don’t have to take down the reviews.

      1. That doesn’t actually matter. If a court rules by default that statements were defamation, then in the eyes of the law those statements are defamation regardless of whether they actually were.

        What is important is that a third party to a dispute who was not named in the dispute, could be denied due process and have a judgment rendered against them requiring compliance. That is a steaming load of horseshit right there, and Yelp is right to fight it on the grounds that rolling over “just this once” would invite further tampering by overreaching judges and hurt their business.

        If you want to force compliance within our government in a legal way, you must pass a law or take the potential offender to court to determine guilt.

  3. Bruce Jenner’s high school yearbook photo is adorable.

      1. Sorry, I meant Chelsea Jenner.

  4. But in this case, the reason the court ruled in Hassell’s favor is because Bird submitted no documents or statements in her defense and never showed up to the trial.

    Just because the court ruled in the plaintiff’s favor does not mean that the case in question was actually proven.

    1. That is true. But that is true of any case. No trial is fool proof. What a ruling in the plaintiff’s favor does mean is that the case is legally settled. Once a party wins a lawsuit, absent an appeal, it should not have to then win it again every time it tries to enforce its judgement on a third party.

      Okay the defendant didn’t’ show up to court. If you say that means the plaintiff can’t enforce its default judgment without then proving its case to the new party, then defendants will just stop showing up to defend lawsuits. What is the point of spending the money to defend a lawsuit if the plaintiff will still have reprove its case when it tries to enforce its judgment?

      1. In can enforcce against the 2nd party. Fine her if she doesnt remove the posts from Yelp.

        But until Yelp is made a party to a lawsuit and has there chance to defend in court, they shouldnt be required to remove anything. That is a 13th amendment violation, if nothing else.

        1. you could do it that way but you don’t and should not have to. I have a valid judgement that says those posts are libel They are on Yelp’s server. Yelp should have to abide by that judgement just like the art gallery has to abide by the judgement that gave me the painting in the hypothetical I give below.

          You can’t depend on the person who was the party to compel third parties to do things. What if the person disappears? What if they don’t have any money? In the example I give below, would you let the Art Gallery keep my lawful property or make me rerty my case to get my property because Trashmnster disappeared or doesn’t give a shit about the court fining him? By our logic you would and that is whacked.

          1. Who is responsible for the cost of me hiring someone to remove the painting?

            If the answer is me, the gallery owner, the 13th amendment just came up again.

            1. Yes, I have to come and get my property. I can’t expect you to mail it to me. But when I show up with my court order, you have to hand it over.

              1. So that means Dawn Hassell needs to be remove the post from the Yelp servers.

                Not sure how that is gonna happen.

                1. No wait, I do know how. The court can require Bird to turn over her account passwords to Hassell.

                  Problem solved.

                2. No. Yelp might be able to bill Dawn Hassell for removing the posts. Her tort cost them the money of removing her post. But that does not mean they can ignore the court order and not remove the posts.

                  1. Yelp might be able to bill Dawn Hassell for removing the posts.

                    Might?

                    Do they get to choose their billing rate?

                    Can they do like the FOIA requests and charge some ludicrous amount per post?

                    Sure, we will remove them, but it costs us $10k per post?

                    1. What if Yelp operates as a distributed system, like bitcoin, over which they have no control once a post is made?

          2. The key to me seems to be to name the 3rd party in the initial suit. At that point, the 3rd party can choose to participate in the trial or not.

            1. That is not the key. You can’t participate in the case unless you have a real case or controversy. If you are a third party, you don’t have a real case or controversy. Yelp has no dog in the fight of whether this post was defamatory, because if it is, it can’t be held responsible for any damages it caused. So they have no due process rights in that case. Once the case is resolved and the plaintiff takes it’s judgment to Yelp, Yelp has to honor it and take down the posts. Yelp can challenge the validity of the judgment. For example they could say that the judgment was not final or maybe is a forgery. But what they can’t do is try and relitigate the case that it is based on because it wasn’t a party and didn’t have standing to be so. Yelp has to live with the judgment in the case and take down the posts just like the gallery has to hand over my painting in the example below.

      2. That’s the way lawsuits work and have always worked. They only determine the rights of the parties to the suit, and persons that are related or under the control of those parties. They don’t bind unrelated persons. The CA court here is out of its goard.

        1. They only determine the rights of the parties to the suit, and persons that are related or under the control of those parties.

          The court’s “unity of interest” ruling addresses that issue. Basically, if my 25+ year recollection of Civ Pro isn’t too foggy, they ruled that Yelp was estopped from challenging the earlier ruling.

  5. I don’t see why Yelp has to be involved in the case in order for it to have to abide by the ruling. Yelp is not a necessary party to the defamation case. Moreover, I really don’t think Yelp wants the courts to make it one because doing that would make Yelp jointly and severally liable for any damages its users’ slanders might create.

    If the review has been determined by a court to be slander, Yelp should take it down. There really isn’t too much more to this than that.

    1. I really don’t think Yelp wants the courts to make it one because doing that would make Yelp jointly and severally liable for any damages its users’ slanders might create.

      Isn’t this a (tangental) rationale for regulating airbnb and also claiming it’s racist?

      If AirBnB is merely a ‘clearing house’ for people to connect with each other for private rentals, AirBnB still gets flack.

      Shorter: Isn’t that horse already out of the barn?

      1. I’m already seeing those commercials about how racist Airbnb is. SMDH.

        1. Wait, what? AirBNB is racist? How? And people are putting up commercials about this? Like, on TV?

      2. yelp isn’t like Uber or Air B&B. I don’t actually purchase anything from Yelp. Yelp is nothing but a wiki version of newspaper restaurant reviews. I don’t have any kind of commercial relationship with Yelp. I can’t really sue them if their reviews sucked because they are more or less offered gratus.

        In contrast, I do have a commercial relationship with Air B&B. I pay them and they take a cut off the top before giving it to the driver or the renter. It is not a two way transaction. It is a three way transaction with Air B&B and Uber acting as the facilitator. That makes liability issues a bit more sticky. Suppose Air B&B rents to the new John Wayne Gacy and I rent a room and end up buried in his crawl space. Is Air B&B liable? Maybe. I assumed it was safe when I went to their sight. I think they probably have a duty to make some effort ensure the people renting rooms on their service are not serial killers. It likely isn’t much of a duty but I think it probably is there.

        1. I hear what you’re saying, and I’m no lawyer (or Doctor) but if AirBnB can be subject to regulations like Equal Housing, merely by hosting ads (and taking a percentage of the rental fee) isn’t that still in the same vein? AirBnB hasn’t ‘vetted’ anything.

          And if AirBnB CAN be subject to Equal Housing, then they’re subject to ALL the local regs of ‘rental properties’ that may occur in each locality where a user posts his unit.

          LOL… POSTS HIS UNIT! I MADE A FUNNY!

    2. Yelp has a business case for fighting this, just like that porn actress who showed up at the trial of a man who was accused of simulating underage sex or some other fake child pornography by watching her movies. Yelp might be irreparably harmed by the ruling even without being party to it, so they fight it.

      1. Then they can always intervene. But it is not the court’s responsibility to intervene for them. Moreover, I am not convinced Yelp even has standing in this case. Unless Yelp is willing to admit that they could potentially be on the hook for paying the plaintiffs’ damages, which I seriously doubt they want to do, Yelp doesn’t have a case or controversy with the plaintiff. Their case is with the defendant. Yelp’s business model depends upon honest reviews and the defendant if the plaintiff is to be believed put up a dishonest review. They really have no case with the plaintiff.

        1. Then they can always intervene. But it is not the court’s responsibility to intervene for them. Moreover, I am not convinced Yelp even has standing in this case.

          Aren’t we getting into due process issues now? If you can just willy-nilly throw injunctions at third parties without their ability to state their case, you’re treading all over due process. It’s one thing to establish privity between the third party and the defendant, but even then, the third party is able to make its case.

          1. No we are not. You most certainly can throw injunctions at third parties. You only have a right to intervene in a case if you have standing in the case or controversy. For example, lets say you have a painting that rightfully belongs to me and have donated it to an art gallery. I wouldn’t sue the art gallery for possession of the painting, i would sue you. The art gallery doesn’t own it and couldn’t give it to me if they wanted to. You own it. So you and I fight it out and court and I win. I can then take my order to the gallery and get my painting. They can challenge that. but they can only challenge the facial validity of my order. They can’t try and retry our case and argue that no, TRSHMNSTR not John owns the painting. Moreover, they cant’ intervene in our case because they have no ownership interest in the painting and thus no real case or controversy with me.

            That is all that is happening here. One party slandered the other. Yelp by merely putting it on their site, doesn’t automatically get standing in that dispute anymore than the art gallery would have standing in our dispute over the painting.

            1. I wouldn’t sue the art gallery for possession of the painting, i would sue you. The art gallery doesn’t own it and couldn’t give it to me if they wanted to. You own it. So you and I fight it out and court and I win. I can then take my order to the gallery and get my painting.

              Yes, because I have privity with the art gallery in the form of the agreement for the gallery to showcase my painting. Therefore, if I’m not interested in playing nice, the court can reach out to the gallery to have the painting returned to you.

              It’s completely different when the connection between the third party and the defendant is much more tenuous. For example, if I were to write “John likes to streak at football games” on a Post-It note, Post-It isn’t in privity with me, and when the court starts issuing injunctions, Post-It isn’t going to be forced to comply.

              Yelp sits somewhere in between. They do more than just supply the pad of paper, but they do less than showcasing the painting.I think they’re closer to Post-It than to the art gallery, personally

              1. Yelp owns what amounts to a builtin board. If you put “John Fucks Sheep” on the bulletin board of the apartment where we both live and I sue and win for libel, I can take my judgement to our apartment building and tell them to take it down. This is no different.

            2. I’m not convinced by an argument from establishing standing. The California Supreme Court must not be convinced that it knows how to rule just yet either, as it has agreed to hear this case.

              Your metaphor misses the mark. If the museum keeps the painting once it’s been established as stolen, then you can take them to court for theft. The judge who hears that case may be particularly punitive given the circumstances and means to pay. Once Yelp refused to comply with the order, I’d think that it would be sufficient cause to sue them directly because they are now owners of the defamatory material.

              Could judges just start issuing injunctions to any third party regardless of involvement? If they can, then that would be a prog’s wet dream when any given murder case involving a firearm could also result in judgments against firearms manufacturers.

              1. Yes they can. And the parties they apply to can come to court and fight them. The issue is on what grounds can they fight. I am saying they can’t fight on the merits of the judgement. The judgement stands. They can only object on the limited basis that it is somehow facially invalid.

                1. I ask again: why haven’t we seen a rash of liberal judges handing out fines to firearms manufacturers as unnamed third parties to murders?

                  There has to be more to it than a judge just making any decision he wants to against anyone as collateral damage in any given case.

                  As I also mentioned, the California Supreme Court isn’t convinced one way or another right now either, otherwise they’d have simply affirmed the ruling and/or remanded it back to the lower courts by declining to hear it.

              2. Zero, I think there’s a difference between an injunction and damages. I don’t think you can ever assess damages against someone without them first being a party the lawsuit.

                Injunctions are a little squishier.

            3. Um, no, you’d have to sue the art gallery too. No sane court would give you an injunction to retrieve the painting without that art gallery being a party.

              1. No sane court would give you an injunction to retrieve the painting without that art gallery being a party.

                It depends on who the current “owner” of the allegedly stolen painting is.

                If its not the art gallery, but somebody else who has consigned it to the gallery, I don’t think the gallery is a necessary party to establish ownership. When you win your court case, the painting is yours, you have no consignment contract with the gallery, and you can tell the gallery to give it back. If the gallery refuses, I think they are committing theft of some kind.

                Would a court issue an injunction against the gallery anyway? I don’t know, but if they do, I don’t see what grounds the gallery has to refuse the injunction. They could challenge it (hell, anybody can challenge anything), but on what grounds?

                If the gallery is the owner, OTOH, then I think they have to be a party because it is their ownership of the painting that is at issue.

              2. No you would not. You would get the sheriff to retrieve your property. They could go to court but their basis for challenge would be limited.

                You don’t understand what you are talking about.

    3. As practicing CA trial lawyer, I think this ruling is a good one. Immunity from damages should not equate to immunity from following court orders against third parties. If Yelp is right then it would never have to remove even intentional, brutal libel, ever. I doubt that was the intent of the publishing immunity. Yelp isn’t harmed at all other than the meagre act of complying with a Court order.

      The fact that the merits were determined on a default should not change the outcome. The law professor whining probably has no real clue about how civil procedure works in the real world.

      Frankly, I think total immunity for hosting unlawful posts is outdated — Yelp has a ton of AI and it would not be too hard to remove posts that people complain about pending confirmation. Yelp censors posts that it doesn’t like. A qualified immunity is probably more appropriate.

      1. I doubt that was the intent of the publishing immunity.

        Since the immunity refers to “liability”, I don’t think it applies to injunctions at all.

      2. If Yelp is right then it would never have to remove even intentional, brutal libel, ever.

        Good.

        Yelp has a ton of AI and it would not be too hard to remove posts that people complain about pending confirmation.

        It’s not Yelp’s job to develop (almost certainly flawed) automated tools to make the government’s job easier.

    4. As practicing CA trial lawyer, I think this ruling is a good one. Immunity from damages should not equate to immunity from following court orders against third parties. If Yelp is right then it would never have to remove even intentional, brutal libel, ever. I doubt that was the intent of the publishing immunity. Yelp isn’t harmed at all other than the meagre act of complying with a Court order.

      The fact that the merits were determined on a default should not change the outcome. The law professor whining probably has no real clue about how civil procedure works in the real world.

      Frankly, I think total immunity for hosting unlawful posts is outdated — Yelp has a ton of AI and it would not be too hard to remove posts that people complain about pending confirmation. Yelp censors posts that it doesn’t like. A qualified immunity is probably more appropriate.

    5. As practicing CA trial lawyer, I think this ruling is a good one. Immunity from damages should not equate to immunity from following court orders against third parties. If Yelp is right then it would never have to remove even intentional, brutal libel, ever. I doubt that was the intent of the publishing immunity. Yelp isn’t harmed at all other than the meagre act of complying with a Court order.

      The fact that the merits were determined on a default should not change the outcome. The law professor whining probably has no real clue about how civil procedure works in the real world.

      Frankly, I think total immunity for hosting unlawful posts is outdated — Yelp has a ton of AI and it would not be too hard to remove posts that people complain about pending confirmation. Yelp censors posts that it doesn’t like. A qualified immunity is probably more appropriate.

    6. As practicing CA trial lawyer, I think this ruling is a good one. Immunity from damages should not equate to immunity from following court orders against third parties. If Yelp is right then it would never have to remove even intentional, brutal libel, ever. I doubt that was the intent of the publishing immunity. Yelp isn’t harmed at all other than the meagre act of complying with a Court order.

      The fact that the merits were determined on a default should not change the outcome. The law professor whining probably has no real clue about how civil procedure works in the real world.

      Frankly, I think total immunity for hosting unlawful posts is outdated — Yelp has a ton of AI and it would not be too hard to remove posts that people complain about pending confirmation. Yelp censors posts that it doesn’t like. A qualified immunity is probably more appropriate.

      1. i disagree about total immunity. Sure Yelp could do it, but I don’t see why they should be expected to do it. How is Yelp supposed to adjudicate what is true and what is false? If the person claims it is false, that is a controversy that belongs in the courts. Yelp has neither the authority or really the ability to make that call. What if they get it wrong and remove something that turns out to be true? Can the author then sue them? If they get it wrong and leave defamatory material up, can the victim then sue? By what standard would they be held to?

      2. Yelp doesn’t have to remove posts that people just complain about, and would probably be well advised not to start moderating in that fashion.

        However, removing posts specified in a court order is a different thing.

    7. Let me give what might be a related example. Party A sues Party B. I have no interest, financial or otherwise, in this case, but I may know something about the facts. Guess what, I’m going to get subpoenaed and deposed, wasting my time and incurring significant costs. The legally-required fee is like $40 a day, which won’t even pay my parking; in some jurisdictions, it’s lower.

      I’m not a party to the case, but I am an indentured servant to the court nonetheless. So there’s all kinds of precedents for people (and presumably entities) to nonetheless have to abide by a court order without giving consent or even having a say in the proceedings.

      1. Good point, Renegade. A subpoena is a flavor of court order (they typically read “You are hereby ordered to appear . . . “), and they are issued to non-parties by the millions every year.

  6. Would be a shame if something were to happen to the current 4 1/2 star Yelp rating for the Supreme Court of California.

  7. “But in this case, the reason the court ruled in Hassell’s favor is because Bird submitted no documents or statements in her defense and never showed up to the trial.”

    What a pathetic excuse for Yelp to violate someone’s rights.

  8. “Defamatory speech falls under one of a few exceptions to First Amendment protection”

    The First Amendment means you get to choose what you say. The Second Amendment means you get to choose to own a gun.

    The First Amendment doesn’t mean you have the right to violate someone’s rights with your speech any more than the Second Amendment means you have the right to rob someone with a gun.

    Defamation isn’t an exception to the First Amendment. Robbing people with a gun isn’t an exception to the Second Amendment. No Amendment gives anyone the right to violate someone’s rights.

    Just because you’re free to make choices for yourself doesn’t mean you can’t be held responsible for choosing to violate other people’s rights.

    Is this confusing to someone? If so, why?

    1. The First Amendment doesn’t mean you have the right to violate someone’s rights with your speech any more than the Second Amendment means you have the right to rob someone with a gun.

      Defamation isn’t an exception to the First Amendment. Robbing people with a gun isn’t an exception to the Second Amendment. No Amendment gives anyone the right to violate someone’s rights.

      You just made a dangerously cogent case for hate speech laws.

      1. I don’t see how hate speech violates anyone’s rights.

        1. It’s perceived to violate rights. Therefore it violates rights.

      2. Show me a crime that doesn’t involve anyone’s rights being violated, and I’ll show you something that shouldn’t be a crime.

      3. No he didn’t. Actual monetary damages are an element of libel. It is nothing but a tort action. I did something negligent, lying, and that caused you harm that I am required to make good on. Hate speech laws are not torts. They are just blanket prohibitions to speech.

    2. Exactly that. In a defamation case, you are not being prohibited from saying something. You are having to pay for the damages what you said caused. The 1st Amendment means the government can’t throw you in jail for saying something. Defamation means you have to pay for the damages your saying something causes. The two concepts are in no way contradictory or mutually exclusive such that defamation is in any way an exception to the first amendment.

      Saying Defamation is an exception to the first amendment is like saying the ability to foreclose on real estate is an exception to the right to own property.

      1. In that reddit Q&A Welch did the other week, he described himself as approaching libertarianism from more of a journalistic rather than philosophical perspective.

        He’s certainly as real a real libertarian as anyone needs to be.

        But some other journalists are coming at this from more of a journalistic perspective than others.

        And it shows.

        No, libertarianism isn’t all about being free to violate people’s rights with your speech.

        We need Reason out there preaching the libertarian gospel. To preach it properly, they gotta know their stuff better than this.

        Sullum couldn’t have written this article by accident.

        1. I’m with Ken and John on this, from both a rights perspective and strict legal reasoning perspective. You’ve summed it up well.

    3. “…violate someone’s rights with your speech …”

      All depends on the definition of the above.

      If I said to my buddies at the bar, “Tonight, let’s all get together and burn down Ken’s house”, that’s inciting and plotting and scheming… A right violation via speech.

      If I said to my buddies at the bar, “Ken is an asshole. So let’s vote for bigger-asshole politicians who will pay the cops to go and burn down Ken’s house”… That’s policy, political debate / free speech… It ain’t clean and it ain’t nice, it’s immoral, but should remain legal.

      Not very satisfying, but it’s the best I can do…

      1. I didn’t say everyone is going to agree about whether any particular instance constitutes a violation of someone’s rights.

        Not everyone agrees that O.J. was guilty. Still, stabbing people to death is a crime because someone’s rights were violated. If you should win a lawsuit against someone for stabbing you, it’s because he violated your rights.

        Just because there exists some ambiguity about whether some particular instance really constitutes a violation of someone’s rights, that doesn’t mean rights violations aren’t the correct standard.

        Real life is complicated. Jurors sometimes disagree. It’s “beyond a reasonable doubt” or “by a preponderance of the evidence” not “with absolutely certainty”.

        Meanwhile, the First Amendment doesn’t give anyone permission to violate someone’s rights, and violating someone’s rights with speech is not an exception to the First Amendment–any more than violating someone’s rights with a gun is an exception to the Second Amendment.

        The government “shall make no law” does not mean that you can’t be held accountable for willfully choosing to violate someone’s rights.

      2. Fraud is willfully violating someone’s rights with speech. Threatening to shoot the cashier if she doesn’t empty the register is willfully violating someone’s rights with speech. Slander and Libel are violating other people’s rights with speech. These are not exceptions to the First Amendment. Nothing in the First Amendment gives anyone permission to violate someone’s rights.

        The First Amendment does allow us to say harmful things to or about people that don’t violate their rights, but the standard of rights violations remains clear–even if the situation surrounding it can be complicated from a jury’s perspective.

  9. Nothing has changed since 1924.

    “All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mahjong factory, we’d be freer and safer, and our taxes would be reduced by almost a half.” H. L. Mencken

  10. I don’t think this is technically true:

    The ruling exposes user-generated content sites?a category which includes everything from Yelp to Twitter to Backpage to any outlet with a comments section?to legal liability for things users post.

    The ruling exposes user-generated content sites to legal liability for refusing a court order to remove something a user posted.

    section 230, which prevents third-party publishers and platforms from being held liable for user-generated criminal content

    “Liability” has a specific meaning, which is a fine or restitution imposed by a court. It doesn’t encompass injunctions or other court orders.

    Having to remove potentially factual reviews when providing an open forum for factual reviews is the core of Yelp’s business model? Not a liability, says the court.

    Absolutely correct.

    Facing contempt of court charges and economic penalties if it doesn’t comply? Not a liability, says the court.

    Still correct, as the economic penalties are for refusing to comply with a court order, not for hosting the comment before it got the order.

    Now, there’s a lot to complain about here, but its mostly about the scope of the original order, much of which was corrected on appeal. The idea that, following a court decision that a given post is defamatory, the court cannot order the defamatory material removed, should be pretty unexceptional, IMO.

    1. Did you read the Complaint?

      The opinion of the Appellate Court provides some of the allegations, but just a few.

      Haskell probably claimed that some statements in the Yelp review were defamatory, per se, due to the fact that the statements tended to discredit her in her business or profession. As you, my learned friend probably know, one aggrieved by a statement that is defamatory, per se, need not prove actual damages. That is the case in most states, including here in the People’s Republic of Dukakis.

      Nevertheless, the court still must do its job in assessing damages. True, that does not speak to Yelp’s position, but I do find it troubling that the trial court assessed anything more than nominal money damages.

      1. No, I haven;t read the Complaint. I was really looking at the injunction on Yelp, not the damages on the commenter. I thought that was pretty appalling: even in a default judgment, the court gets to set any fines, etc. and those were pretty appalling.

        From what I know of small time plaintiff’s lawyers, she’s lucky to net $100K a year. Those damages are ridiculous. Judge Dean would have issued the injunction and maybe a token damage award.

      2. Looks like in most states you have to prove up damages in even a defamation per se case. I can’t tell if California is one of those states.

        http://apps.americanbar.org/li…..mages.html

        Even when you have olde schoole per se liability, that begs the question of the amount of liability. As a practical matter, I don’t see how any court awards damages without some basis for the amount of the award.

        “Plaintiff has shown the defendant committed defamation per se, entitling the plaintiff to damages. However, in the absence of any showing of what damages the plaintiff actually suffered, aside from unsubstantiated allegations, the court awards One and no/100 Dollars ($1.00).”

  11. The ruling exposes user-generated content sites?a category which includes everything from Yelp to Twitter to Backpage to any outlet with a comments section?to legal liability for things users post.

    Stop! Preet’s penis can only get so erect!

  12. This seems appropriate for this thread

  13. This is why I read EULAs. When the “agreement” states I “agree” to use the California legal system, I tend to disagree. It is why I use very few of Google’s and Apple’s products. Whatever else you want to say about Microsoft, they aren’t a California company.

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