California Supreme Court hears arguments in case that implicates the rights of online news publishers

Earlier this month, the Supreme Court of California heard oral arguments in Hassell v. Bird, a case that could have implications for whether courts can force online publishers to take down third-party content without first accounting for the publishers’ First Amendment interests.

The case arises out of a 2014 dispute in which California attorney Dawn Hassell sued her former client, Ava Bird, for posting what Hassell alleged was a defamatory review of her legal services on Yelp, which publishes third-party reviews about local businesses online. When Bird did not show up in court, Hassell won a default judgment, and the San Francisco County Superior Court ordered Yelp to remove the review from its website. Yelp, which was not a party to the original lawsuit, filed a motion to vacate the judgment on the basis that it infringed upon Yelp’s due process and First Amendment speech rights, but the court denied Yelp’s motion. After a California appellate court affirmed the trial court’s denial, Yelp appealed the case to the California Supreme Court.

The Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression, along with 18 other media organizations, filed a friend-of-the-court brief with the California Supreme Court in support of Yelp. The brief argues that the order threatens the public’s ability to have vibrant discussions online because it allows these discussions to be curtailed without permitting operators of online forums — which can include news publishers — to object and assert their First Amendment interests in maintaining robust public conversation. The brief also notes the important role that the free exchange of ideas in forums and comment sections can play in increasing the accuracy of reporting and enhancing relationships between reporters and their audiences.

During oral arguments, Davis Wright Tremaine’s Thomas Burke, on behalf of Yelp, argued that Yelp’s right to publish the review is protected by both the First Amendment and the Communications Decency Act (CDA) — a law that provides immunity to online publishers from being held legally responsible for content posted on their websites by third parties. He also argued that any court order demanding that Yelp remove content must not be issued until the company has an opportunity to argue in court that the content should not be removed.

The justices asked whether Yelp, if it had been given a chance to defend the speech in court and then lost, would have then claimed immunity under the CDA and refused to take down the content — a “have your cake and eat it too” scenario, as one justice put it. Another justice asked whether requiring Yelp to appear in court to defend its right to publish the content would undercut the purpose of the CDA, which, he supposed, is intended to prevent companies like Yelp from being embroiled in litigation.

In response, Burke pointed out that there was no question that a newspaper publisher would be given an opportunity to assert its independent First Amendment rights in publishing third-party content. He emphasized that although Yelp is an online publisher, the case implicates these same long-standing First Amendment rights that predate the internet.

The arguments also considered whose speech was at issue, the individual reviewer’s or Yelp’s. Although the review itself was written by Bird, Burke argued that Yelp’s speech was implicated as well. Burke explained that Yelp’s ratings of businesses are derived from a proprietary algorithm that assigns different weights to various reviews, like Bird’s, and therefore reflect Yelp’s editorial processes.

Hassell’s attorney, Monique Olivier, argued that the review at issue is not Yelp’s speech, and that Yelp’s ratings cannot be protected speech if the underlying speech — the review itself — is unprotected. Chief Justice Tani Cantil-Sakauye asked whether the trial court order itself was not a recognition that Yelp amplified Bird’s voice and, as an online publisher, is an independent speaker. The justices also grappled with whether it mattered that the trial court found the speech defamatory through a default judgment rather than after hearing legal arguments on the merits of the case.

The First Amendment interests involved in this case extend to parties far beyond Hassell and Bird. As noted in the Reporters Committee’s brief in the case, if the trial court order stands, it may lead to an increase in similar orders that force online publishers — including news publishers — to take down third-party content online without accounting for publishers’ First Amendment interests and the value of that information to the public.

Read the full brief submitted by the Reporters Committee and the Thomas Jefferson Center in the case here.