Big Mess on Due Process and CDA

Hassell v. Bird, No. S235968 (Cal. July 2, 2018)

Like me, the California Supreme Court found this 2016 opinion problematic. It granted review and now issues one of the more fractured opinions I've seen from the Court in recent years.

To recap, Law Firm sued former Client for posting defamatory reviews on Yelp. It did not join Yelp as a defendant. Client defaulted and the trial court signed off on proposed injunction ordering Client to take down her review. Not only did it enjoin Client, it ordered Yelp to take the review down too. The Court of Appeal held that (1) the trial court could entertain Yelp’s post-judgment objection under its inherent power; (2) the injunction was not invalid because it violated Yelp’s due process rights as a non-party; and (3) the order wasn’t invalid based on the immunity for Internet re-posting of the content of others afforded by the Communications Decency Act, 47 U.S.C. § 230.

The Court doesn’t address the threshold procedural issue regarding Yelp’s post-judgment objection. But it issues a splintered set of opinions on the other two issues. First, there’s a plurality opinion by the Chief Justice, joined by Justices Chin and Corrigan, holding that the CDA § 230 applied and precluded the injunction, but declining to reach the due process question. 

Then there’s a concurrence from Justice Kruger that would have reversed on the due process question, but which also agrees with the plurality’s CDA § 230 result, albeit for slightly different reasons. The latter is basically the holding of four justices, and thus the Court. 

Then there’s a dissent from Justice Liu, which principally takes issue with Justice Kruger’s due process analysis, but which also disagrees with the Court on the CDA issue. 

And then there’s another dissent from Justice Cuellar, joined by Justice Stewart—a justice from the 1/2 stilling pro tem while we continue to wait for the Governor to find another Yalie to fill Justice Werdergar’s seat. He goes whole hog on why the plurality is wrong on the CDA.

A draft of this post has been sitting in my cue for a long time. I’m a bit at a loss as to what to say. The due process issue I flagged in my post on the Court of Appeal opinion is a side-card fight between Justices Kruger and Liu. To me, Kruger has the better of the argument. Maybe I’ve been a mostly defense lawyer for too long, but the idea that some court could enter an order that obliges my client to do anything without notice and an opportunity to be heard chafes my sensibilities.

The CDA question is not really in my lane. Practically speaking, I think Justice Cuellar has the better of the argument. This mostly won’t be an issue, because if someone posts defamatory content on a platform, usually enjoining them to take it down will be enough. But if they refuse, I don’t see a strong case from the text of the statute that the host can’t be enjoined solely as a relief defendant, provided, of course due process is observed. But again, I’m no copyright guru. 

For what it’s worth.

Court of Appeal Reversed.