The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Weitsman v. Levesque, decided Friday by Judge Janis L. Sammartino (S.D. Cal.):
[T]he Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction. See Proposed Order (providing that the Court requests that "Google, Yahoo!, Bing, Facebook, Instagram, Twitter, YouTube, and other websites with the same or similar defamatory content about Plaintiffs remove all associated webpages and URLs from their respective search indexes and websites").
Plaintiffs can request that these third parties voluntarily remove the material in question and/or suspend Defendant's accounts, and, should Defendant fail to comply with the terms of the injunction, they can return to this Court and seek to hold Defendant in contempt or sanction him. However, the Court will not compel third parties who have not appeared in this matter to act. Any mandatory injunction is … "… an 'extraordinary' and 'drastic' remedy" …, and Plaintiffs have cited no authority indicating that such a remedy is appropriate as to parties who are not alleged to have committed any wrongful acts themselves and who have not had an opportunity to oppose the requested relief.
During the November 5, 2020 hearing, Plaintiffs' counsel indicated that the Communications Decency Act of 1996 ("CDA") may support this request. However, the Court finds that the CDA, in fact, cuts against ordering a third party who has not appeared in the action to remove defamatory speech. See, e.g., Hassell v. Bird, 5 Cal. 5th 522, 541 (2018) ("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.' 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.") (citing 47 U.S.C. § 230(c)(1); Barrett v. Rosenthal, 40 Cal. 4th 33, 48, 53 (2006); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Medytox Sols., Inc. v. Investorshub.com, Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014)).
The Court fervently hopes that the third parties in question will voluntarily remove the posts in question given the Court's determination that the posts are defamatory and the Court's injunction against Defendant's making or continuing to make the statements in question, but the Court cannot order the third parties to do so.
Quite correct, I think, for the reasons the court mentioned, and also because of the Due Process Clause and the First Amendment: For a court to order someone to do something (especially to take down speech that the target may otherwise choose to publish), that someone must at least be made a party to the case and given an opportunity to defend its own rights in court before an injunction is issued.
I also wrote about other aspects of Judge Sammartino's decision below.