EFF to California Supreme Court: Website Owners Have a First Amendment Right to Defend Content on Their Platform – EFF
A bad review on Yelp is an anathema to a business. No one wants to get trashed online. But the First Amendment protects both the reviewers opinion and Yelps right to publish it. A California appeals court ran roughshod over the First Amendment when it ordered Yelp to comply with an injunction to take down speech without giving the website any opportunity to challenge the injunctions factual basis. The case is on appeal to the California Supreme Court, and EFF filed an amicus brief asking the court to overturn the lower courts dangerous holding.
The case, Hassell v. Bird, is procedurally complicated. A lawyer, Dawn Hassell, sued a former client, Ava Bird, for defamation in California state court over a negative Yelp review. Bird never responded to the lawsuit, so the trial court entered a default judgment against her. The courtat Hassells requestnot only ordered Bird to remove her own reviews, but also ordered Yelp to remove themeven though Yelp was never named as a party to the suit. (If this kind of abuse of a default judgment sounds familiar, thats not a coincidence; it seems to be increasingly commonand its a real threat to online speech.)
Yelp challenged the order, asserting that Hassell failed to prove that the post at issue was actually defamatory, that Yelp could not be held liable for the speech pursuant to the Communication Decency Act, 47 U.S.C. 230 (Section 230), and that Yelp could not be compelled to take down the post as a non-party to the suit. The trial court rejected Yelps arguments and refused to recognize Yelps free speech rights as a content provider. The California Court of Appeal affirmed the trial courts decision, holding that Yelp could be forced to remove the supposedly defamatory speech from its website without any opportunity to argue that the reviews were accurate or otherwise constitutionally protected.
This decision is frankly just wrongand for multiple reasons. Neither court seemed to understand that the First Amendment protects not only authors and speakers, but also those who publish or distribute their words. Both courts completely precluded Yelp, a publisher of online content, from challenging whether the speech it was being ordered to take down was defamatoryi.e., whether the injunction to take down the speech could be justified. And the court of appeals ignored its special obligation, pursuant to California law, to conduct an independent examination of the record in First Amendment cases.
Both courts also seemed to completely ignore the U.S. Supreme Courts clear holding that issuing an injunction against a non-party is a constitutionally-prohibited violation of due process.
EFFalong with the ACLU of Northern California and the Public Participation Projecturged the California Supreme Court to accept the case for review back in August 2016. The court agreed to review the case in September, and we just joined an amicus brief urging the court to overrule the problematic holding below.
Our briefdrafted by Jeremy Rosen of Horvitz & Levy and joined by a host of other organizations dedicated to free speechexplains to the California Supreme Court that the First Amendment places a very high bar on speech-restricting injunctions. A default judgment simply cannot provide a sufficient factual basis for meeting that bar, and the injunction issued against Yelp in this case was improper. We also explained that the injunction violated clear Supreme Court case law and Yelps due process rights, and that the injunction violates Section 230, which prohibits courts from holding websites liable for the speech of third parties.
As Santa Clara University law school professor Eric Goldman noted in a blog post about the case, the appeals courts decision opens up a host of opportunities for misuse and threatens to rip a hole in Section 230s protections for online speechprotections that already seem to be weakening. If not overturned, as the already pervasive misuse of default judgments teaches, this case will surely lead to similar injunctions that infringe on publishers free speech rights without giving them any notice or opportunity to be heard. The California Supreme Court cannot allow this.
See the original post here:
EFF to California Supreme Court: Website Owners Have a First Amendment Right to Defend Content on Their Platform - EFF
- Expressive Discrimination: Universities' First Amendment Right to Affirmative Action Part 2 - Reason - March 3rd, 2025 [March 3rd, 2025]
- Inside Israel's Plan To Resume the War and 'Eradicate Hamas.' Plus, Trump's Press Pool Takeover Is Not an Assault on the First Amendment. - Washington... - March 3rd, 2025 [March 3rd, 2025]
- Expressive Discrimination: Universities' First Amendment Right to Affirmative Action - Reason - March 3rd, 2025 [March 3rd, 2025]
- OPINION: Attacking the First Amendment and America's free press - Midland Daily News - March 3rd, 2025 [March 3rd, 2025]
- Press pool takeover drowns First Amendment - Freedom of the Press Foundation - March 3rd, 2025 [March 3rd, 2025]
- First Amendment Victory! Wyoming Airport Agrees to Settlement After Rejecting PETA Ad - PETA - March 3rd, 2025 [March 3rd, 2025]
- Our View: Theres nothing murky about the First Amendment - Palestine Herald Press - March 3rd, 2025 [March 3rd, 2025]
- Ohio Universitys complicated history with the First Amendment and student expression - The New Political - March 3rd, 2025 [March 3rd, 2025]
- A free press makes a country free The First Amendment protects the liberty of all - Hawaii Tribune-Herald - March 3rd, 2025 [March 3rd, 2025]
- Whats the First Amendment Got to Do With It? The White Houses Associated Press Ban - Law.com - March 3rd, 2025 [March 3rd, 2025]
- Opinion | The First Amendment Isnt on Trumps Side - The Wall Street Journal - March 3rd, 2025 [March 3rd, 2025]
- Trump Tries To Carve Out a First Amendment Exception for 'Fake News' - Reason - March 3rd, 2025 [March 3rd, 2025]
- MTHS receives its 15th First Amendment Press Freedom Award - MLT News - March 3rd, 2025 [March 3rd, 2025]
- The White House takeover of the press pool is a brazen attack on the First Amendment - MSNBC - March 3rd, 2025 [March 3rd, 2025]
- Donald Trump violated the First Amendment when he barred The Associated Press from the White House - The Observer - March 3rd, 2025 [March 3rd, 2025]
- D.C.'s U.S. Attorney Is a Menace to the First Amendment - Reason - March 3rd, 2025 [March 3rd, 2025]
- Ominous Move to Strip Americans of First Amendment Rights - DCReport - March 3rd, 2025 [March 3rd, 2025]
- Editorial New York Daily News: A free press makes a country free The First Amendment protects the liberty of all - The Daily News Online - March 3rd, 2025 [March 3rd, 2025]
- Narrow Applicability Is Not the Same As Narrow Tailoring: Applying the First Amendment in First Choice Womens Resource Centers v. Platkin - The... - February 27th, 2025 [February 27th, 2025]
- More to Every Story: First Amendment rights and public events - KREM.com - February 27th, 2025 [February 27th, 2025]
- Trumps lawsuit barred by the First Amendment, pollsters team argues - The Washington Post - February 27th, 2025 [February 27th, 2025]
- Judge orders local newspaper to remove editorial; owner says this violates First Amendment rights - WLBT - February 27th, 2025 [February 27th, 2025]
- AP sues Trump officials over Oval Office ban, citing First Amendment - Axios - February 27th, 2025 [February 27th, 2025]
- A free press makes a country free: The First Amendment protects the liberty of all - New York Daily News - February 27th, 2025 [February 27th, 2025]
- Ilya Shapiro is back . . . with a new book First Amendment News 458 - Foundation for Individual Rights and Expression - February 20th, 2025 [February 20th, 2025]
- People exercising their First Amendment rights aren't 'wreckers' | Letters - South Bend Tribune - February 20th, 2025 [February 20th, 2025]
- Trump bans AP and words he doesn't like. 'Free speech' was never about First Amendment. | Opinion - USA TODAY - February 20th, 2025 [February 20th, 2025]
- Silenced: The Joby Weeks Case and the Erosion of First Amendment Rights - NewsBreak - February 20th, 2025 [February 20th, 2025]
- White House barring AP from press events violates the First Amendment - Foundation for Individual Rights and Expression - February 16th, 2025 [February 16th, 2025]
- A New Hampshire town and a bakery owner are headed for trial in a First Amendment dispute - The Associated Press - February 16th, 2025 [February 16th, 2025]
- New Hampshire town and bakery take their 'First Amendment' legal battle over colossal pastry mural to trial - New York Post - February 16th, 2025 [February 16th, 2025]
- A.P. Accuses White House of Violating First Amendment - The New York Times - February 16th, 2025 [February 16th, 2025]
- First Amendment law legend: Fight back - Freedom of the Press Foundation - February 16th, 2025 [February 16th, 2025]
- First Amendment in Trump's second term: 'We're going to be busy,' free speech group says - Tallahassee Democrat - February 16th, 2025 [February 16th, 2025]
- Expression Over Radio Waves Is Not Exempt from the First Amendment - The Federalist Society - February 16th, 2025 [February 16th, 2025]
- Iowa lawmakers try again to pass anti-SLAPP bill expediting First Amendment cases - Iowa Capital Dispatch - February 16th, 2025 [February 16th, 2025]
- Three Senators Blast FCC for 'Weaponizing its Authority,' Cite First Amendment Concerns - Adweek - February 16th, 2025 [February 16th, 2025]
- The AP says Trump blocking its reporter from Oval Office over not using Gulf of America "violates the First Amendment" - CBS News - February 16th, 2025 [February 16th, 2025]
- Wave of state-level AI bills raise First Amendment problems - Foundation for Individual Rights and Expression - February 16th, 2025 [February 16th, 2025]
- Legendary First Amendment lawyer begs press to fight Trumps attacks - Freedom of the Press Foundation - February 16th, 2025 [February 16th, 2025]
- Timothy Zicks Executive Watch: Introduction First Amendment News 457 - Foundation for Individual Rights and Expression - February 16th, 2025 [February 16th, 2025]
- Trump accused of violating First Amendment after AP reporter barred from event over Gulf of America renaming - The Independent - February 16th, 2025 [February 16th, 2025]
- Editorial: Trump goes to war on the First Amendment - Detroit News - February 16th, 2025 [February 16th, 2025]
- Voices are meant to be heard: the First Amendment and you - Northern Iowan - February 16th, 2025 [February 16th, 2025]
- CBS News Lesley Stahl to be honored at First Amendment Awards - Editor And Publisher Magazine - February 16th, 2025 [February 16th, 2025]
- The AP says Trump blocking its reporter from Oval Office over not using Gulf of America violates the First Amendment - KWTX - February 16th, 2025 [February 16th, 2025]
- Trump takes another dump on the First Amendment - Daily Kos - February 16th, 2025 [February 16th, 2025]
- Spreading the news and defending the First Amendment since August 1787 - Lexington Herald Leader - February 16th, 2025 [February 16th, 2025]
- Publishing Pro-Hamas Propaganda Is Protected by First Amendment - Reason - February 7th, 2025 [February 7th, 2025]
- "Title VI Must Be Applied Consistent with First Amendment Principles" - Reason - February 7th, 2025 [February 7th, 2025]
- Coming soon: Executive Watch Tracking the Trump Administrations free speech record First Amendment News 456 - Foundation for Individual Rights and... - February 7th, 2025 [February 7th, 2025]
- Q&A: Professor emphasizes the impact the TikTok ban could have on the First Amendment - Elon News Network - February 7th, 2025 [February 7th, 2025]
- First Amendment Audit of ELPD Draws Widespread Attention Online - East Lansing Info - February 7th, 2025 [February 7th, 2025]
- Groups demand U.S. attorney for D.C. respect First Amendment - Freedom of the Press Foundation - February 7th, 2025 [February 7th, 2025]
- Maryland age assurance lawsuit shows NetChoice digging in on First Amendment - Biometric Update - February 7th, 2025 [February 7th, 2025]
- What does the first amendment protect during public comment? - Spectrum News 1 - February 7th, 2025 [February 7th, 2025]
- FOX News Trey Yingst to be honored at First Amendment Awards - Editor And Publisher Magazine - February 7th, 2025 [February 7th, 2025]
- NetChoice sues to block Marylands Kids Code, saying it violates the First Amendment - The Verge - February 7th, 2025 [February 7th, 2025]
- Stevens: Oklahoma tests First Amendment in move to fund Catholic charter school - The Post and Courier - February 7th, 2025 [February 7th, 2025]
- OPINION: Keeping the First Amendment on Facebook - Lebanon Reporter - February 7th, 2025 [February 7th, 2025]
- RFK Jr. wants to ban pharma ads on TV. The First Amendment may have something to say. - MSNBC - February 1st, 2025 [February 1st, 2025]
- Standing Up for the First Amendment: The Roundtable Submits Comment Letter Opposing Amicus Brief Disclosure Requirements - Philanthropy Roundtable - February 1st, 2025 [February 1st, 2025]
- Trial begins in First Amendment suit against St. John the Baptist Parish - The Lens NOLA - February 1st, 2025 [February 1st, 2025]
- RCFP reviews Pam Bondis record on newsgathering, First Amendment issues - Reporters Committee for Freedom of the Press - February 1st, 2025 [February 1st, 2025]
- Texas county challenges First Amendment ruling on library book bans in 5th Circuit hearing - Yahoo! Voices - February 1st, 2025 [February 1st, 2025]
- Trump "Global Gag Rule" as to Abortion Likely Doesn't Violate the First Amendment - Reason - February 1st, 2025 [February 1st, 2025]
- It was a violation of our First Amendment rights: FIU students react to the TikTok ban - PantherNOW - February 1st, 2025 [February 1st, 2025]
- CWRU First Amendment clinic receives crucial grant from the Stanton Foundation - Crain's Cleveland Business - February 1st, 2025 [February 1st, 2025]
- Matt Gaetz says the First Amendment was "harmed gravely" by January 6 prosecutions - Media Matters for America - January 26th, 2025 [January 26th, 2025]
- New FCC Chair Revives Complaints About ABC, CBS And NBC Content That His Predecessor Rejected As "At Odds With The First Amendment" -... - January 26th, 2025 [January 26th, 2025]
- Trumps stated promise: Stop all government censorship and his free speech Executive Order First Amendment News 454 - Foundation for Individual Rights... - January 26th, 2025 [January 26th, 2025]
- We Must Protect The First Amendment At All Costs vs. No Thanks, Ill Just Take My Freedoms For Granted Until They Disappear - The Onion - January 26th, 2025 [January 26th, 2025]
- TikTok and the First Amendment Robert G. Natelson - Law & Liberty - January 26th, 2025 [January 26th, 2025]
- De Pere man sued city of Green Bay for violating his First Amendment rights. The city settled. - Green Bay Press Gazette - January 26th, 2025 [January 26th, 2025]
- UChicago Student Sues University, Alleging First Amendment and Tenant Rights Violations - The Chicago Maroon - January 26th, 2025 [January 26th, 2025]
- Dr. Rand Paul Introduces Free Speech Protection Act to Safeguard Americans First Amendment Rights Against Government Censorship - Senator Rand Paul - January 26th, 2025 [January 26th, 2025]
- Capistrano School District Accused of Trampling First Amendment Rights of Student - California Globe - January 26th, 2025 [January 26th, 2025]
- Jerry Zahorchak | Keeping the First Amendment on Facebook | Columns | tribdem.com - TribDem.com - January 26th, 2025 [January 26th, 2025]
- 2 blockbuster cases about the First Amendment and online speech - The Hill - January 26th, 2025 [January 26th, 2025]
- The First Amendment is First for a Reason - The Wilson Quarterly - January 26th, 2025 [January 26th, 2025]