Hassell v. Bird

Filed 7/2/18

IN THE SUPREME COURT OF CALIFORNIA

DAWN L. HASSELL et al., )

)

Plaintiffs and Respondents, )

) S235968

v. )

) Ct.App. 1/4 A143233

AVA BIRD, )

) San Francisco County

Defendant; ) Super. Ct. No. CGC 13530525

)

YELP INC., )

)

Objector and Appellant. )

____________________________________)

In this case, we consider the validity of a court order, entered upon a default

judgment in a defamation case, insofar as it directs appellant Yelp Inc. (Yelp) to

remove certain consumer reviews posted on its website. Yelp was not named as a

defendant in the underlying lawsuit, brought by plaintiffs Dawn Hassell and the

Hassell Law Group, and did not participate in the judicial proceedings that led to

the default judgment. Instead, Yelp became involved in this litigation only after

being served with a copy of the aforementioned judgment and order.

Yelp argues that, to the extent the removal order would impose upon it a

duty to remove these reviews, the directive violates its right to due process under

the federal and state Constitutions because it was issued without proper notice and

an opportunity to be heard. Yelp also asserts that this aspect of the order is invalid

under the Communications Decency Act of 1996, relevant provisions of which

SEE CONCURRING & DISSENTING OPINIONS

(found at 47 U.S.C. § 230, hereinafter referred to as section 230)1 relate, “No

provider or user of an interactive computer service shall be treated as the publisher

or speaker of any information provided by another information content provider”

(§ 230(c)(1)), and “No cause of action may be brought and no liability may be

imposed under any State or local law that is inconsistent with this section”

(§ 230(e)(3)).

The Court of Appeal rejected Yelp’s arguments. We reverse. The Court of

Appeal erred in regarding the order to Yelp as beyond the scope of section 230.

That court reasoned that the judicial command to purge the challenged reviews

does not impose liability on Yelp. But as explained below, the Court of Appeal

adopted too narrow a construction of section 230. In directing Yelp to remove the

challenged reviews from its website, the removal order improperly treats Yelp as

“the publisher or speaker of . . . information provided by another information

content provider.” (§ 230(c)(1).) The order therefore must be revised to comply

with section 230.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, defendant Ava Bird approached the Hassell Law Group,

owned by Dawn Hassell (who is hereinafter referred to as Hassell), to represent her

in a personal injury matter. That August, Bird and the law firm entered into a

representation agreement. After e-mail exchanges and communication difficulties

led Hassell to conclude that Bird was unhappy with the firm’s performance, the

Hassell Law Group withdrew from representation in September 2012. Hassell

notified Bird of this decision via e-mail.

Several months later, on January 28, 2013, a one-star (out of five) review of

the Hassell Law Group appeared on Yelp. This website, available to anyone with

1 Subsequent undesignated statutory references are to title 47 of the United

States Code.

2

Internet access, provides a forum for reviews and ratings of businesses and other

entities. Individuals with Yelp accounts author the reviews and issue the ratings.

Individual reviews and ratings appear on the Yelp website together with the

author’s Yelp user name and location. A reviewed business may post a public

response to a user review; this response will appear directly below the review on

Yelp’s website. Yelp also combines individual ratings into an aggregate rating for

each business.

The one-star review was posted by Yelp user “Birdzeye B.” from Los

Angeles, California. It provided in full (with the spelling, spacing, capitalization,

and punctuation in this and all other quoted reviews per the originals) as follows:

“well, here is another business that doesn’t even deserve one star.

basically, dawn hassell made a bad situation much worse for me. she

told me she could help with my personal injury case from falling

through a floor, then reneged on the case because her mom had a

broken leg, or something like that, and that the insurance company

was too much for her to handle. and all of this after i met with her

office (not her personally, she was nowhere to be found) signed

paperwork to ‘hire’ them and gained confidence in her office (due

mostly to yelp reviews) so, in all fairness, i have to share my

experience so others can be forewarned. she will probably not do

anything for you, except make your situation worse. in fact, after

signing all the paperwork with her office, like a broken record, they

repeated ‘DO NOT TALK TO THE INSURANCE COMPANY’ over

and over and over. and over and over. so I honored that and did not

speak to them. but the hassell law group didn’t ever speak with the

insurance company either, neglecting their said responsibilities and

not living up to their own legal contract! nor did they bother to

communicate with me, the client or the insurance company AT ALL.

then, she dropped the case because of her mother and seeming lack

of work ethic. (a good attorney wont do this, in fact, they aren’t

supposed to) to save your case, STEER CLEAR OF THIS LAW

FIRM! and research around to find a law firm with a proven track

record of success, a good work ethic, competence and long term client

satisfaction. there are many in the bay area and with some diligent

smart interviewing, you can find a competent attorney, but this wont

be one of them.”

3

Hassell believed Bird to be the author of this review, and sent her an e-mail.

Hassell wrote Bird that “[y]ou are certainly free to write a review about your

experience and provide constructive feedback. But slandering someone and

intentionally trying to damage their business and reputation is illegal.” Disputing

statements in the review, Hassell requested that Bird remove or revise it, and

wrote that “[i]f you are unwilling to talk to me or respond, I will assume you don’t

intend to work this out [with] me directly and I will retain a defamation attorney

this week to file a legal action against you for slander and defamation.” Bird

responded with a lengthy e-mail of her own, in which she stated that Hassell

would “have to accept the permanent, honest review [I] have given you.”

Shortly thereafter, on February 6, 2013, another one-star review of the

Hassell Law Group was posted on Yelp. This review was from the user “J.D.,”

identified as hailing from Alameda, California. It provided in full as follows: “Did

not like the fact that they charged me their client to make COPIES, send out

FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!!

Isn’t that your job. That’s just ridiculous!!! They Deducted all those expenses out

of my settlement.”

On April 10, 2013, plaintiffs filed suit against Bird in San Francisco

Superior Court. The verified complaint alleged that Bird wrote both of the

previously discussed reviews, that these reviews were libelous, and that in posting

the reviews, Bird cast plaintiffs in a false light and intentionally inflicted

emotional distress upon Hassell. Plaintiffs sought general, special, and punitive

damages, as well as “injunctive relief prohibiting Defendant Ava Bird from

continuing to defame plaintiffs as complained of herein, and requiring Defendant

Ava Bird to remove each and every defamatory review published by her about

plaintiffs, from Yelp.com and from anywhere else they appear on the internet.”

Yelp was not named as a defendant. At oral argument before this court, counsel

4

for plaintiffs candidly acknowledged that this omission was intentional. Plaintiffs

anticipated that if they added Yelp as a defendant and integrated the company into

the action at that time, Yelp could respond by asserting immunity under section

230.

After several attempts at personal service failed, plaintiffs effected

substitute service. On April 17, 2013, the summons and complaint were left with

another individual at the address where Bird was believed to reside. In November

2013, with Bird not yet having appeared in the case, plaintiffs moved for entry of a

default judgment. In the interim, “Birdzeye B.” had posted on Yelp an “update”

of her review of the Hassell Law Group. This update (which henceforth will be

described as a review), dated April 29, 2013, provided as follows:

“here is an update on this review.

dawn hassell has filed a lawsuit against me over this review I posted

on yelp! she has tried to threaten, bully, intimidate, harass me into

removing the review! she actually hired another bad attorney to fight

this. lol! well, looks like my original review has turned out to be truer

than ever! avoid this business like the plague folks! and the staff at

YELP has stepped up and is defending my right to post a review. once

again, thanks YELP! and I have reported her actions to the Better

Business Bureau as well, so they have a record of how she handles

business. another good resource is the BBB, by the way.”

In a declaration filed in support of the request for a default judgment,

Hassell explained that she had connected the January 2013 review to Bird “[b]ased

on the poster’s user name being similar to Ms. Bird’s real name and the details

such as ‘falling through a floor.’ ” Hassell also averred that the review from

“J.D.” had been written by Bird. She further related that since the first of the

challenged reviews had been posted, the Hassell Law Group had seen a significant

decrease in user activity on Yelp that suggested interest in the firm, and that as a

result of this review, its overall Yelp rating had dropped to 4.5 stars.

5

A “prove-up” evidentiary hearing was held on January 14, 2014.2 Hassell

was sworn as a witness and gave testimony at this session. After the hearing, the

court entered judgment in favor of plaintiffs, awarding general and special

damages and costs totaling $557,918.85. The court also ordered Bird “to remove

each and every defamatory review published or caused to be published by her

about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from Yelp.com

and from anywhere else they appear on the internet within 5 business days of the

date of the court’s order.” The court’s order also provides that Bird, and “her

agents, officers, employees or representatives, or anyone acting on her behalf, are

further enjoined from publishing or causing to be published any written reviews,

commentary, or descriptions of DAWN HASSELL or the HASSELL LAW

GROUP on Yelp.com or any other internet location or website.” Finally, the order

states 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.” Exhibit A includes the January 2013 and April 2013 reviews by

“Birdzeye B.,” and the February 2013 review by “J.D.”3

2 In a matter such as the one at bar, upon entry of a default, “[t]he plaintiff

thereafter may apply to the court for the relief demanded in the complaint. The

court shall hear the evidence offered by the plaintiff, and shall render judgment in

the plaintiff’s favor for that relief, not exceeding the amount stated in the

complaint, . . . as appears by the evidence to be just.” (Code Civ. Proc., § 585,

subd. (b).)

3 The Court of Appeal used the term “removal order” to describe only the

sentence within the order that explicitly directs Yelp to remove the three reviews.

We use this same term to describe the order generally.

6

Yelp was served with a copy of the default judgment later that month. 4 In

response, Yelp’s in-house counsel wrote Hassell a letter that identified several

perceived deficiencies with the judgment and removal order. The letter

accordingly advised that “Yelp sees no reason at this time to remove the reviews at

issue.” The letter added that Yelp reserved the right to revisit this decision if it

were to receive additional facts responsive to its concerns. Hassell was told that if

an action were pursued against Yelp premised on its publication of the reviews,

Yelp would “promptly seek dismissal of such action and its attorneys’ fees under

California’s anti-SLAPP law.” (See Code Civ. Proc., § 425.16.) Hassell

responded by letter dated April 30, 2014, explaining her position and asking Yelp

to reconsider and remove the reviews.

The next month, Yelp filed a motion to set aside and vacate the judgment.

In its supporting brief, Yelp argued that to the extent the order to remove the posts

was aimed at it, the directive violated Yelp’s due process rights, exceeded the

scope of relief requested in the complaint, and was barred by section 230. Yelp

also argued that Hassell had not given proper notice of the action to Bird, nor

connected the challenged reviews to Bird sufficiently to justify an injunction.5

Yelp requested that the default judgment be set aside and vacated in its entirety, or

4 In connection with their opposition to Yelp’s motion to set aside and vacate

the default judgment, plaintiffs supplied documentation indicating that in May

2013, their attorney sent Yelp a facsimile that included a copy of the complaint

against Bird, as well as the January 2013 and February 2013 reviews underlying

the action. Counsel’s facsimile cover letter concluded with his “expect[ation]”

that Yelp would “cause these two utterly false and unprivileged reviews to be

removed as soon as possible.”

5 After not appearing below, Ms. Bird has submitted an amicus curiae brief

to this court. In her brief, Bird acknowledges writing the January 2013 “Birdzeye

B.” review, but denies authoring the February 2013 review from “J.D.”

7

in the alternative, “modified to eliminate all provisions that compel Yelp to act in

any manner, or restrain Yelp from engaging in any conduct.”

The superior court denied the motion to set aside and vacate the judgment.

In its order denying the motion, the court quoted this court’s generic assessment

that “ ‘[i]n matters of injunction . . . it has been a common practice to make the

injunction run also to classes of persons through whom the enjoined person may

act, such as agents, servants, employees, aiders, abettors, etc., though not parties to

the action, and this practice has always been upheld by the courts.’ ” (Ross v.

Superior Court (1977) 19 Cal.3d 899, 906.) The superior court applied this

principle to the present case because, in the court’s view, there was a “factual basis

to support Hassell’s contention that Yelp is aiding and abetting Bird’s violation of

the injunction.” As evidence of this aiding and abetting, the superior court noted

that “Yelp highlighted at least one of Bird’s defamatory reviews by featuring it as

a ‘Recommended Review,’ ” that “a litany of favorable reviews are not factored

into the Hassell Law [Group]’s star rating, appearing to give emphasis to Bird’s

defamatory review,” that Yelp was moving “to set aside the judgment in its

entirety, including the portions of the judgment that pertain only to Bird” and

otherwise was advancing arguments “on Bird’s behalf,” and that “notwithstanding

a judicial finding that Bird’s reviews are defamatory, Yelp refuses to delete them.”

Yelp appealed. It reasserted on appeal that the order, to the extent that it

commanded Yelp to remove the challenged reviews, violated the company’s due

process rights, as well as section 230. (Hassell v. Bird (2016) 247 Cal.App.4th

1336, 1341, 1355, 1361.)6 The Court of Appeal rejected both arguments. It first

6 The Court of Appeal’s opinion also addressed several other issues not

encompassed within our grant of review. (See Hassell v. Bird, supra, 247

Cal.App.4th at pp. 1348-1354.) We express no views regarding the Court of

Appeal’s analysis of those topics. We likewise have no occasion to opine on

8

found no due process violation in allowing the injunction to run against Yelp. As

had the superior court, the Court of Appeal regarded Yelp as being among the

actors to whom the injunction could properly extend, even though it was not a

party to the proceedings that led to the injunction. (Id., at pp. 1355-1357.) The

Court of Appeal also found no merit in Yelp’s related argument that, regardless of

whether an injunction normally can run against nonparties, the injunction here

could not properly extend to it because such a reach would unduly limit the

dissemination of speech. The Court of Appeal questioned the premise of this

argument, opining that “it appears to us that the removal order does not treat Yelp

as a publisher of Bird’s speech, but rather as the administrator of the forum that

Bird utilized to publish her defamatory reviews.” (Id., at p. 1358.) The Court of

Appeal also observed that in Balboa Island Village Inn, Inc. v. Lemen (2007) 40

Cal.4th 1141, this court ruled that “ ‘an injunction issued following a trial that

determined that the defendant defamed the plaintiff that does no more than

prohibit the defendant from repeating the defamation, is not a prior restraint and

does not offend the First Amendment.’ ” (Hassell v. Bird, at p. 1360, quoting

Balboa Island, at p. 1148.) The Court of Appeal concluded that “[u]nder the

authority of Balboa Island . . . the trial court had the power to make the part of this

order requiring Yelp to remove the three specific statements . . . because the

injunction prohibiting Bird from repeating those statements was issued following a

determination at trial that those statements are defamatory.” (Id., at p. 1360.)

Turning to Yelp’s section 230 argument, the Court of Appeal recognized

that “section 230 has been construed broadly to immunize ‘providers of interactive

whether the challenged reviews are in fact defamatory, in whole or in part. Our

analysis assumes the correctness of the superior court’s determination on this

point.

9

computer services against liability arising from content created by third parties’ ”

(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1361, quoting Fair Housing Coun.,

San Fernando v. Roommates.com (9th Cir. 2008) 521 F.3d 1157, 1162, fn.

omitted), and that in Barrett v. Rosenthal (2006) 40 Cal.4th 33 (Barrett), this court

similarly regarded section 230 as, in the words of the Court of Appeal,

“afford[ing] interactive service providers broad immunity from tort liability for

third party speech” (Hassell v. Bird, at p. 1362). The Court of Appeal further

acknowledged that “section 230 also ‘precludes courts from entertaining claims

that would place a computer service provider in a publisher’s role. Thus, lawsuits

seeking to hold a service provider liable for its exercise of a publisher’s traditional

editorial functions — such as deciding whether to publish, withdraw, postpone or

alter content — are barred.’ ” (Id., at pp. 1361-1362, quoting Zeran v. America

Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).)

The Court of Appeal nevertheless determined that section 230 does not

prohibit a directive that Yelp remove the challenged reviews. The court reasoned

that “[t]he removal order does not violate . . . section 230 because it does not

impose any liability on Yelp. In this defamation action, [plaintiffs] filed their

complaint against Bird, not Yelp; obtained a default judgment against Bird, not

Yelp; and [were] awarded damages and injunctive relief against Bird, not Yelp.”

(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1363.)

The Court of Appeal recognized that other courts (e.g., Kathleen R. v. City

of Livermore (2001) 87 Cal.App.4th 684 (Kathleen R.); Noah v. AOL Time

Warner, Inc. (E.D.Va. 2003) 261 F.Supp.2d 532; Smith v. Intercosmos Media

Group (E.D.La., Dec. 17, 2002, No. 02-1964) 2002 WL 31844907; Medytox

Solutions, Inc. v. Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So.3d 727)

had construed section 230 immunity as extending to claims for injunctive relief.

(Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364.) But the Court of Appeal

10

regarded those cases as inapposite because they involved situations in which

section 230 immunity had been interposed by a named party at a stage of the

proceedings when the cases merely involved allegations of improper conduct by a

third party, “and not a judicial determination that defamatory statements had, in

fact, been made by such third party on the Internet service provider’s Web site” in

a case filed against only the third party. (Hassell v. Bird, at pp. 1364-1365.) The

court also rejected the argument that the prospect of contempt sanctions would

amount to “liability” under the statute. (Id., at p. 1365.) According to the Court of

Appeal, “sanctioning Yelp for violating a court order would not implicate section

230 at all; it would not impose liability on Yelp as a publisher or distributor of

third party content.” (Ibid.)

The Court of Appeal thus affirmed the superior court’s order denying

Yelp’s motion to set aside and vacate the judgment, albeit with instructions to the

superior court to modify the order on remand so that it compelled only the removal

of the three challenged reviews. (Hassell v. Bird, supra, 247 Cal.App.4th at

pp. 1365-1366.)7 We granted review.

II. DISCUSSION

Before this court, Yelp renews the constitutional and statutory arguments it

raised before the Court of Appeal. Namely, Yelp maintains that the removal order

does not comport with due process insofar as it directs Yelp to remove the three

reviews at issue without affording prior notice and an opportunity to be heard.

Yelp also claims that this aspect of the order violates section 230 by treating it as

7 This modification owed to the Court of Appeal’s conclusion that “to the

extent the trial court additionally ordered Yelp to remove subsequent comments

that Bird or anyone else might post, the removal order is an overbroad prior

restraint on speech.” (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1360.) The

Court of Appeal therefore remanded the case “to the trial court with directions that

it modify the removal order consistent with this limitation.” (Ibid.)

11

“the publisher or speaker of . . . information provided by another information

content provider.” (§ 230(c)(1); see also § 230(e)(3).) Because the statutory

argument is dispositive, there is no need to address the due process question. (See

Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102 [“[o]ur jurisprudence

directs that we avoid resolving constitutional questions if the issue may be

resolved on narrower grounds”]; Santa Clara County Local Transportation

Authority v. Guardino (1995) 11 Cal.4th 220, 230-231.)

A. Section 230

Section 230 appears within the Communications Decency Act of 1996, 8

enacted as Title V of the Telecommunications Act of 1996 (Pub.L. No. 104-104,

110 Stat. 56). Congress enacted section 230 “for two basic policy reasons: to

promote the free exchange of information and ideas over the Internet and to

encourage voluntary monitoring for offensive or obscene material.” (Carafano v.

Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1122; see also Barrett,

supra, 40 Cal.4th at pp. 50-54 [reviewing the legislative history of section 230].)

One of the impetuses for section 230 was a judicial decision opining that because

an operator of Internet bulletin boards had taken an active role in policing the

content of these fora, for purposes of defamation law it could be regarded as the

“publisher” of material posted on these boards by users. (Stratton Oakmont, Inc.

v. Prodigy Services Co. (N.Y.Sup.Ct. 1995) 23 Media L.Rep. 1794 [1995 WL

323710]; see also Barrett, supra, 40 Cal.4th at pp. 50-53.)

Section 230 begins with a series of findings and policy declarations. The

findings include, “The rapidly developing array of Internet and other interactive

computer services available to individual Americans represent an extraordinary

8 Provisions of the Communications Decency Act of 1996 different from the

ones presently before the court were struck down as unconstitutional in Reno v.

American Civil Liberties Union (1997) 521 U.S. 844.

12

advance in the availability of educational and informational resources to our

citizens” (§ 230(a)(1)), and “The Internet and other interactive computer services

have flourished, to the benefit of all Americans, with a minimum of government

regulation” (§ 230(a)(4)). The policies include the goals “to promote the

continued development of the Internet and other interactive computer services and

other interactive media” (§ 230(b)(1)), and “to preserve the vibrant and

competitive free market that presently exists for the Internet and other interactive

computer services, unfettered by Federal or State regulation” (§ 230(b)(2)).

Implementing these views, section 230(c)(1) provides, “No provider or user

of an interactive computer service shall be treated as the publisher or speaker of

any information provided by another information content provider.” 9

Section 230(e)(3), meanwhile, relates in relevant part, “No cause of action may be

brought and no liability may be imposed under any State or local law that is

inconsistent with this section.” Section 230 defines an “interactive computer

service” as “any information service, system, or access software provider that

provides or enables computer access by multiple users to a computer server,

including specifically a service or system that provides access to the Internet and

such systems operated or services offered by libraries or educational institutions.”

(§ 230(f)(2).) The term “information content provider,” meanwhile, “means any

person or entity that is responsible, in whole or in part, for the creation or

9 Section 230(c)(2), another immunity provision within the statute, provides,

“No provider or user of an interactive computer service shall be held liable on

account of — [¶] (A) any action voluntarily taken in good faith to restrict access to

or availability of material that the provider or user considers to be obscene, lewd,

lascivious, filthy, excessively violent, harassing, or otherwise objectionable,

whether or not such material is constitutionally protected; or [¶] (B) any action

taken to enable or make available to information content providers or others the

technical means to restrict access to material described in paragraph (1).” Yelp’s

claim of immunity invokes section 230(c)(1), not section 230(c)(2).

13

development of information provided through the Internet or any other interactive

computer service.” (§ 230(f)(3).)

B. Judicial Construction of Section 230

The immunity provisions within section 230 “have been widely and

consistently interpreted to confer broad immunity against defamation liability for

those who use the Internet to publish information that originated from another

source.” (Barrett, supra, 40 Cal.4th at p. 39; accord, Doe v. MySpace, Inc. (5th

Cir. 2008) 528 F.3d 413, 418 [“[c]ourts have construed the immunity provisions in

§ 230 broadly in all cases arising from the publication of user-generated content”];

Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at p. 1123 [“reviewing courts

have treated § 230(c) immunity as quite robust”].) Although a full review of the

substantial body of case law interpreting section 230 is unnecessary to resolve this

case, an overview of certain leading decisions follows.

1. Zeran

Section 230 was the subject of an early and influential construction in

Zeran, supra, 129 F.3d 327. (See Barrett, supra, 40 Cal.4th at p. 41 [describing

Zeran as “[t]he leading case on section 230 immunity”].) The lawsuit in Zeran

involved messages posted on an America Online, Inc. (AOL) online bulletin

board. (Zeran, at p. 329.) These messages promoted t-shirts, bumper stickers, and

key chains bearing offensive content, and added that anyone interested in

purchasing one of these items should contact the plaintiff at his home phone

number. (Ibid.) As a result of these posts, the plaintiff — who in fact had no

connection to the wares — was inundated by angry phone calls, including death

threats. (Ibid.) The plaintiff subsequently brought a negligence claim against

AOL, alleging that AOL took an unreasonably long time to remove the messages,

“refused to post retractions of those messages, and failed to screen for similar

postings thereafter.” (Id., at p. 328.)

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AOL claimed immunity under section 230. (Zeran, supra, 129 F.3d at

p. 328.) In affirming a grant of judgment on the pleadings entered in favor of

AOL on this ground (id., at p. 330), the federal court of appeals in Zeran

emphasized the broad parameters of the statutory grant of immunity. The court

observed, “By its plain language, § 230 creates a federal immunity to any cause of

action that would make service providers liable for information originating with a

third-party user of the service. Specifically, § 230 precludes courts from

entertaining claims that would place a computer service provider in a publisher’s

role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a

publisher’s traditional editorial functions — such as deciding whether to publish,

withdraw, postpone or alter content — are barred.” (Ibid.) The Zeran court

continued, “The purpose of this statutory immunity is not difficult to discern.

Congress recognized the threat that tort-based lawsuits pose to freedom of speech

in the new and burgeoning Internet medium. The imposition of tort liability on

service providers for the communications of others represented, for Congress,

simply another form of intrusive government regulation of speech. Section 230

was enacted, in part, to maintain the robust nature of Internet communication and,

accordingly, to keep government interference in the medium to a minimum.”

(Ibid.)

The plaintiff in Zeran, supra, 129 F.3d 327, argued that section 230 should

be read narrowly, so that AOL could be held liable as a “distributor” of the online

posts. (Zeran, at pp. 331-332.) In rejecting this limited view of section 230

immunity, the Zeran court stressed that if the notice-based legal standard for

defamation liability that applies to distributors of printed information was

transplanted to the Internet, it would place online intermediaries in an untenable

position. “If computer service providers were subject to distributor liability,” the

court observed, “they would face potential liability each time they receive notice

15

of a potentially defamatory statement — from any party, concerning any message.

Each notification would require a careful yet rapid investigation of the

circumstances surrounding the posted information, a legal judgment concerning

the information’s defamatory character, and an on-the-spot editorial decision

whether to risk liability by allowing the continued publication of that information.

Although this might be feasible for the traditional print publisher, the sheer

number of postings on interactive computer services would create an impossible

burden in the Internet context.” (Zeran, at p. 333.) In the same vein, the court

also stressed that “notice-based liability for interactive computer service providers

would provide third parties with a no-cost means to create the basis for future

lawsuits. Whenever one was displeased with the speech of another party

conducted over an interactive computer service, the offended party could simply

‘notify’ the relevant service provider, claiming the information to be legally

defamatory.” (Ibid.)

2. Kathleen R.

Other courts have followed Zeran in adopting a broad view of section 230’s

immunity provisions. (See Barrett, supra, 40 Cal.4th at p. 39.) Several decisions

by the Courts of Appeal of this state, for example, have advanced a similar

understanding of section 230. (See, e.g., Doe II v. MySpace Inc. (2009) 175

Cal.App.4th 561, 567-575 [section 230 immunity applies to tort claims against a

social networking website, brought by minors who claimed that they had been

assaulted by adults they met on that website]; Delfino v. Agilent Technologies, Inc.

(2007) 145 Cal.App.4th 790, 804-808 [section 230 immunity applies to tort claims

against an employer that operated an internal computer network used by an

employee to allegedly communicate threats against the plaintiff]; Gentry v. eBay,

Inc. (2002) 99 Cal.App.4th 816, 828-836 [section 230 immunity applies to tort and

16

statutory claims against an auction website, brought by plaintiffs who allegedly

purchased forgeries from third party sellers on the website].)

Among the decisions of the Courts of Appeal construing section 230, the

ruling in Kathleen R., supra, 87 Cal.App.4th 684, is particularly relevant here, for

as recognized by the Court of Appeal below, the court in Kathleen R. held that

section 230 immunity extends to claims for injunctive relief.

The plaintiff in Kathleen R., supra, 87 Cal.App.4th 684, filed suit against a

city after her son, a minor, used computers at the city library to download sexually

explicit photos from the Internet. (Id., at p. 690.) She brought claims under state

and federal law. (Id., at p. 691.) The plaintiff sought injunctive relief in

connection with all of her causes of action, with her state-law claims seeking to

prevent the city “from acquiring or maintaining computers which allow people to

access obscenity or minors to access harmful sexual matter; from maintaining any

premises where minors have that ability; and from expending public funds on such

computers.” (Ibid.)

The court in Kathleen R., supra, 87 Cal.App.4th 684, held that section 230

barred all of the plaintiff’s state-law claims, even insofar as they sought injunctive

relief.10 (Kathleen R., at p. 698.) In reaching this result, the court expressly

rejected the plaintiff’s position that section 230 immunity does not adhere to the

extent that a plaintiff pursues declaratory or injunctive relief, as opposed to

damages. (Kathleen R., at p. 698.) The court reasoned, “Section 230 provides

broadly that ‘[n]o cause of action may be brought and no liability may be imposed

under any State or local law that is inconsistent with this section.’ (§ 230(e)(3),

italics added.) Thus, even if for purposes of section 230 ‘liability’ means only an

award of damages [citation], the statute by its terms also precludes other causes of

10 The court in Kathleen R., supra, 87 Cal.App.4th 684, rejected the plaintiff’s

federal claim on a different ground. (Id., at pp. 698-702.)

17

action for other forms of relief.” (Kathleen R., at p. 698.) The court also observed

that the plaintiff’s pursuit of injunctive relief, if it came to fruition, could “prevent

[the city] from providing open access to the Internet on its library computers,”

which would “contravene section 230’s stated purpose of promoting unfettered

development of the Internet no less than her damage claims.” (Ibid.)

3. Barrett

In the one prior occasion we have had to construe section 230, we, too,

have read its provisions as conferring broad immunity.

In Barrett, supra, 40 Cal.4th 33, the plaintiffs sued for defamation after the

defendant posted copies of an assertedly libelous article on two websites. (Id., at

pp. 40-41.) The defendant had received the article from another individual via an

e-mail. (Id., at p. 41.)

In vacating an order entered by the superior court, which had granted the

defendant’s motion to strike under the anti-SLAPP statute, the Court of Appeal in

Barrett adopted the same narrow reading of the word “publisher” within section

230(c)(1) that had been rejected by the court in Zeran — i.e., it construed section

230 as being concerned only with preventing online intermediaries from being

held liable under standards applicable to publishers, while leaving distributor

liability, where appropriate, intact. In the view of the Court of Appeal in Barrett,

when the defendant in that case reposted the article she had received from another

online source, she acted as a distributor of this information. (Barrett, supra,

40 Cal.4th at p. 39.) This designation meant that the defendant could be held

liable if she distributed a defamatory statement with notice of its libelous

character. (Id., at pp. 39, 41, 44-45.)

We reversed. Our unanimous majority opinion in Barrett, supra,

40 Cal.4th 33, rejected both the Court of Appeal’s interpretation of the term

“publisher” within section 230(c)(1), and a comparably constrained construction

18

of the term “user” within that same subsection that would distinguish between

“passive” users who could claim section 230 immunity and “active” users who

could not. (Barrett, at p. 63.) As had the Zeran court, we declined to read section

230(c)(1) as leaving Internet intermediaries subject to liability on the same terms

applicable to distributors of printed material. Instead, we endorsed as “sound”

Zeran’s construction of “publisher” (Barrett, at p. 48), and adopted a similarly

“inclusive” interpretation of that word (id., at p. 49). We observed, “the terms of

section 230(c)(1) . . . reflect the intent to promote active screening by service

providers of online content provided by others. Congress implemented its

intent . . . by broadly shielding all providers from liability for ‘publishing’

information received from third parties. Congress contemplated self-regulation,

rather than regulation compelled at the sword point of tort liability.” (Id., at p. 53,

fn. omitted.) Later, we reiterated that section 230 confers “blanket immunity from

tort liability for online republication of third party content.” (Barrett, at p. 57.)11

Our analysis in Barrett, supra, 40 Cal.4th 33, also elaborated upon

Congress’s intent in enacting section 230, and the practical consequences

associated with a cramped construction of the statute. We explained, “It is

inaccurate to suggest that Congress was indifferent to free speech protection when

it enacted section 230,” given the statute’s many findings extolling the value of

Internet speech and evincing legislators’ interest in further development of this

forum. (Barrett, at p. 56.) We also noted that “[t]he provisions of section

230(c)(1), conferring broad immunity on Internet intermediaries, are themselves a

11 Barrett, supra, 40 Cal.4th 33, was clear that section 230 immunity is broad

— not all-encompassing. We recognized, for example, that “[a]t some point,

active involvement in the creation of a defamatory Internet posting would expose

[an otherwise immunized] defendant to liability as an original source.” (Barrett, at

p. 60, fn. 19; see also § 230(e)(1), (2), (4), (5) [describing areas of the law as to

which section 230 immunity has no effect].)

19

strong demonstration of legislative commitment to the value of maintaining a free

market for online expression.” (Ibid.) A limited construction of section 230

would conflict with Congress’s goal of facilitating online discourse, we observed,

because “subjecting Internet service providers and users to defamation liability”

for the republication of online content — even under the standards applicable to

distributors — “would tend to chill online speech.” (Barrett, at p. 56, citing

Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at pp. 1123-1124, Batzel v.

Smith (9th Cir. 2003) 333 F.3d 1018, 1027-1028, Noah v. AOL Time Warner, Inc.,

supra, 261 F.Supp.2d at p. 538, Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp.

44, 52, Donato v. Moldow (N.J.Super.Ct.App.Div. 2005) 865 A.2d 711, 726.)

This chilling effect could materialize for reasons including the fact that “[a]ny

investigation of a potentially defamatory Internet posting is . . . a daunting and

expensive challenge.” (Id., at p. 57.)

In closing, our opinion in Barrett, supra, 40 Cal.4th 33, voiced some

qualms about the result it reached. It explained that “[w]e share the concerns of

those who have expressed reservations about the Zeran court’s broad

interpretation of section 230 immunity. The prospect of blanket immunity for

those who intentionally redistribute defamatory statements on the Internet has

disturbing implications.” (Id., at pp. 62-63.) But, we added, these concerns were

of no legal consequence, because the tools of statutory interpretation compelled a

broad construction of section 230. (Barrett, at p. 63.)

C. Analysis

In construing section 230, we apply our standard approach to statutory

interpretation. “ ‘When we interpret a statute, “[o]ur fundamental task . . . is to

determine the Legislature’s intent so as to effectuate the law’s purpose. We first

examine the statutory language, giving it a plain and commonsense meaning. We

do not examine that language in isolation, but in the context of the statutory

20

framework as a whole in order to determine its scope and purpose and to

harmonize the various parts of the enactment. If the language is clear, courts must

generally follow its plain meaning unless a literal interpretation would result in

absurd consequences the Legislature did not intend. If the statutory language

permits more than one reasonable interpretation, courts may consider other aids,

such as the statute’s purpose, legislative history, and public policy.” [Citation.]

“Furthermore, we consider portions of a statute in the context of the entire statute

and the statutory scheme of which it is a part, giving significance to every word,

phrase, sentence, and part of an act in pursuance of the legislative

purpose.” ’ [Citation.]” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608,

616-617.)

Our analysis of the statute begins with an uncontroversial observation:

Yelp could have promptly sought and received section 230 immunity had

plaintiffs originally named it as a defendant in this case. There is no doubt that

Yelp is a “provider or user of an interactive computer service” within the meaning

of section 230(c)(1) (see Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096,

1101 [concluding that as an operator of a website, Yahoo acts as a provider of an

interactive computer service]), or that the substance of the reviews was provided

to Yelp by “another information content provider” (§ 230(c)(1); see Shiamili v.

Real Estate Group of New York, Inc. (N.Y. 2011) 952 N.E.2d 1011, 1019-1020).

Had plaintiffs’ claims for defamation, intentional infliction of emotional distress,

and false light been alleged directly against Yelp, these theories would be readily

understood as treating Yelp as the “publisher or speaker” of the challenged

reviews. (See, e.g., Barrett, supra, 40 Cal.4th at p. 63 [section 230 applies to

claims for defamation]; Bennett v. Google, LLC (D.C. Cir. 2018) 882 F.3d 1163,

1164, 1169 [section 230 applies to claims for intentional infliction of emotional

distress]; Jones v. Dirty World Entertainment Recordings LLC (6th Cir. 2014) 755

21

F.3d 398, 402, 417 [section 230 applies to claims for defamation, intentional

infliction of emotional distress, and false light].) This immunity, moreover, would

have shielded Yelp from the injunctive relief that plaintiffs seek. (See Kathleen

R., supra, 87 Cal.App.4th at p. 687; Noah v. AOL Time Warner, Inc., supra, 261

F.Supp.2d at pp. 539-540; Smith v. Intercosmos Media Group, Inc., supra, 2002

WL 31844907 at pp. *4-*5; Medytox Solutions, Inc. v. Investorshub.com, Inc.,

supra, 152 So.3d at p. 731.)

The question here is whether a different result should obtain because

plaintiffs made the tactical decision not to name Yelp as a defendant. Put another

way, we must decide whether plaintiffs’ litigation strategy allows them to

accomplish indirectly what Congress has clearly forbidden them to achieve

directly. We believe the answer is no.

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.” (§ 230(c)(1).) 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. (See Barrett, supra, 40 Cal.4th at pp.

48, 53; Zeran, supra, 129 F.3d at p. 330 [under section 230, “lawsuits seeking to

hold a service provider liable for its exercise of a publisher’s traditional editorial

functions — such as deciding whether to publish, withdraw, postpone or alter

content — are barred”]; Medytox Solutions, Inc. v. Investorshub.com, Inc., supra,

152 So.3d at p. 731 [“[a]n action to force a website to remove content on the sole

22

basis that the content is defamatory is necessarily treating the website as a

publisher, and is therefore inconsistent with section 230”].)12

Plaintiffs assert in their briefing that “Yelp’s duty to comply [with the

removal order] does not arise from its status as a publisher or speaker, but as a

party through whom the court must enforce its order.” To plaintiffs, “the removal

order simply prohibits Yelp from continuing to be the conduit through which Bird

violates her injunction.” Just as other courts have rebuffed attempts to avoid

section 230 through the “creative pleading” of barred claims (Kimzey v. Yelp! Inc.

(9th Cir. 2016) 836 F.3d 1263, 1266), we are not persuaded by plaintiffs’

description of the situation before the court. It is true that plaintiffs obtained a

default judgment and injunction in a lawsuit that named only Bird as a defendant.

12 Although not directly pertinent to this case, we observe that in another

instance where Congress became aware of procedural end-runs around section

230, it took steps to rein in these practices — instead of regarding a judgment so

obtained as a fait accompli that must be enforced, without further consideration of

the circumstances surrounding it.

Specifically, in 2010 Congress enacted the Securing the Protection of Our

Enduring and Established Constitutional Heritage Act (SPEECH Act), 28 U.S.C.

§ 4101 et seq. This measure responded to concerns that defamation judgments

were being obtained in countries that did not recognize the same free-speech

protections as those provided in the United States, “significantly chilling

American free speech and restricting both domestic and worldwide access to

important information” in the United States. (Sen.Rep. No. 111-224, 2d Sess., p. 2

(2010).)

To combat forum shopping and “ensure that American authors, reporters,

and publishers have nationwide protection from foreign libel judgments”

(Sen.Rep. No. 111-224, supra, at p. 2), the SPEECH Act includes provisions such

as one providing that “[n]otwithstanding any other provision of Federal or State

law, a domestic court shall not recognize or enforce a foreign judgment for

defamation against the provider of an interactive computer service, as defined in

section 230 of the Communications Act of 1934 (47 U.S.C. [§] 230) unless the

domestic court determines that the judgment would be consistent with section 230

if the information that is the subject of such judgment had been provided in the

United States.” (28 U.S.C. § 4102(c)(1).)

23

And it is also true that as a general rule, when an injunction has been obtained,

certain nonparties may be required to comply with its terms. (See, e.g., Ross v.

Superior Court, supra, 19 Cal.3d at p. 906.) But this principle does not supplant

the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have

the responsibility to comply with court orders, including injunctions. But an order

that treats an Internet intermediary “as the publisher or speaker of any information

provided by another information content provider” nevertheless falls within the

parameters of section 230(c)(1). (Cf. Giordano v. Romeo (Fla.Dist.Ct.App. 2011)

76 So.3d 1100, 1102 [recognizing that an online intermediary may claim section

230 immunity from injunctive relief associated with a defamation claim,

notwithstanding a lower-court determination that at least part of the challenged

online post was defamatory].) In substance, Yelp is being held to account for

nothing more than its ongoing decision to publish the challenged reviews. Despite

plaintiffs’ generic description of the obligation they would impose on Yelp, in this

case this duty is squarely derived from “the mere existence of the very relationship

that Congress immunized from suit.” (Klayman v. Zuckerberg (D.C. Cir. 2014)

753 F.3d 1354, 1360.)13

At the same time, we recognize that not all legal duties owed by Internet

intermediaries necessarily treat them as the publishers of third party content, even

when these obligations are in some way associated with their publication of this

13 In arguing that section 230 immunity should not apply, Justice Liu

emphasizes that here there was a judicial determination — albeit through an

uncontested proceeding — that the challenged reviews are defamatory. (Dis. opn.

of Liu, J., post, at pp. 2-3.) We recognize that in applying section 230 a distinction

could, in theory, be drawn between situations in which an injunction (or its

extension to a nonparty) follows from a judicial finding of some kind, and

scenarios where there has been no such determination. But we see no persuasive

indication that this is a distinction Congress wanted courts to regard as decisive in

circumstances such as these. (Accord, Giordano v. Romeo, supra, 76 So.3d at

p. 1102.)

24

material. (See, e.g., Barnes v. Yahoo!, Inc., supra, 570 F.3d at p. 1107 [regarding

section 230 immunity as inapplicable to a claim of promissory estoppel alleging

that an Internet intermediary promised to remove offensive content].) In this case,

however, Yelp is inherently being treated as the publisher of the challenged

reviews, and it has not engaged in conduct that would take it outside section 230’s

purview in connection with the removal order. The duty that plaintiffs would

impose on Yelp, in all material respects, wholly owes to and coincides with the

company’s continuing role as a publisher of third party online content.

In his dissent, Justice Cuéllar argues that even if the injunction cannot on its

face command Yelp to remove the reviews, the removal order nevertheless could

run to Yelp through Bird under an aiding and abetting theory premised on conduct

that remains inherently that of a publisher. (See dis. opn. of Cuéllar, J., post, at

pp. 3, 20-22, 34-37.) We disagree. As applied to such behavior, Justice Cuéllar’s

approach would simply substitute one end-run around section 230 immunity for

another. (Accord, Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 568.) As

for the other scenarios involving materially different types of conduct that Justice

Cuéllar might hypothesize, such as conspiracies between a named party and an

Internet republisher who has not been named as a party, it suffices for now to say

that they are not before this court, and we have no occasion to consider whether

they could lead to some remedy vis-à-vis the republisher.14

14 As previously noted, when the trial court denied Yelp’s motion to set aside

and vacate the judgment, it emphasized several facts that, in the court’s opinion,

indicated Yelp was aiding and abetting Bird’s violation of the injunction. The

court observed that Yelp had featured at least one of Bird’s defamatory reviews as

a “Recommended Review”; that Yelp had not factored some positive reviews into

the Hassell Law Group’s overall rating; that Yelp had raised arguments in

connection with its motion that would invalidate the judgment entirely, as opposed

to merely the portion of the removal order specifically directed at it; and that Yelp

25

Plaintiffs also assert that Yelp cannot claim section 230 immunity because,

under section 230(e)(3), no “cause of action” has been alleged directly against it as

a defendant, and in their view making Yelp subject to an injunction does not

amount to the imposition of “liability.” This argument reads constraining force

into the language within section 230(e)(3) that provides, “No cause of action may

be brought and no liability may be imposed under any State or local law that is

inconsistent with this section.” This phrasing does not provide strong support for,

much less compel, plaintiffs’ construction. Section 230(e)(3) does not expressly

demand that a cause of action always must be alleged directly against an Internet

intermediary as a named defendant for the republisher to claim immunity under

the statute. And in common legal parlance at the time of section 230’s enactment,

“liability” could encompass more than merely the imposition of damages. (See

Black’s Law Dict. (6th ed. 1990) p. 914 [defining “liability” as “a broad legal

term” that “has been referred to as of the most comprehensive significance,

refused to remove the reviews at issue, “notwithstanding a judicial finding that

Bird’s reviews are defamatory.”

Even though it upheld the removal order in most respects, the Court of

Appeal did not rely on an aiding and abetting theory to justify the extension of the

injunction to Yelp. (See Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364.) We

expressly reject the argument, offered by Justice Cuéllar in his dissent (dis. opn. of

Cuéllar, J., post, at p. 35), that the circumstances stressed by the trial court (plus,

perhaps, Yelp’s letter to Hassell, in which it explained its decision not to remove

the reviews) might somehow serve to deprive Yelp of immunity. Most of these

facts involve what are clearly publication decisions by Yelp. (See, e.g., Jones v.

Dirty World Entertainment Recordings LLC, supra, 755 F.3d at pp. 414-415.)

Meanwhile, we do not regard the letter relating the basis for Yelp’s decision, or

Yelp’s failure to make only pinpoint challenges to the injunction in court, as

somehow transforming the company into something other than a publisher of third

party content for purposes of the removal order. Section 230 immunity is not that

fragile.

26

including almost every character of hazard or responsibility, absolute, contingent,

or likely”].)15

Even more fundamentally, plaintiffs’ interpretation misses the forest for the

trees. Section 230(e)(3) underscores, rather than undermines, the broad scope of

section 230 immunity by prohibiting not only the imposition of “liability” under

certain state-law theories, but also the pursuit of a proscribed “cause of action.”

(See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) 591 F.3d

250, 254 [section 230 is not just a “ ‘defense to liability’ ”; it instead confers

“ ‘immunity from suit’ ” (italics omitted)]; Medytox Solutions, Inc. v.

Investorshub.com, Inc., supra, 152 So.3d at p. 731.) This inclusive language, read

in connection with section 230(c)(1) and the rest of section 230, conveys an intent

to shield Internet intermediaries from the burdens associated with defending

against state-law claims that treat them as the publisher or speaker of third party

content, and from compelled compliance with demands for relief that, when

viewed in the context of a plaintiff’s allegations, similarly assign them the legal

role and responsibilities of a publisher qua publisher. (See Barrett, supra, 40

Cal.4th at pp. 53, 56, 57; Barnes v. Yahoo!, Inc., supra, 570 F.3d at pp. 1101-

1102; Zeran, supra, 129 F.3d at p. 330.) As evidenced by section 230’s findings,

Congress believed that this targeted protection for republishers of online content

15 Justice Cuéllar would define “liability” within section 230(e)(3) as “a

financial or legal obligation.” (Dis. opn. of Cuéllar, J., post, at p. 11.) His

dissenting opinion then proceeds as if the broad word “legal” within this very

definition is irrelevant. This oversight is in a sense understandable, because,

inconveniently, plaintiffs absolutely regard Yelp as having a “legal obligation” to

comply with the removal order.

Yet Justice Cuéllar’s equation of “liability” under section 230(e)(3) with

only financial obligations raises other questions that cannot be satisfactorily

answered. Among them, if “liability” involves only financial debts, it is unclear

why Congress recently felt the need to exclude from section 230 immunity certain

state-law criminal actions associated with sex trafficking. (§ 230(e)(5)(B), (C).)

27

would facilitate the ongoing development of the Internet. (See § 230(a)(1), (a)(4),

(b)(1), (b)(2).)

These interests are squarely implicated in this case. An injunction like the

removal order plaintiffs obtained can impose substantial burdens on an Internet

intermediary. Even if it would be mechanically simple to implement such an

order, compliance still could interfere with and undermine the viability of an

online platform. (See Noah v. AOL Time Warner, Inc., supra, 261 F.Supp.2d at

p. 540 [“in some circumstances injunctive relief will be at least as burdensome to

the service provider as damages, and is typically more intrusive”].) Furthermore,

as this case illustrates, a seemingly straightforward removal order can generate

substantial litigation over matters such as its validity or scope, or the manner in

which it is implemented. (See Barrett, supra, 40 Cal.4th at p. 57.) Section 230

allows these litigation burdens to be imposed upon the originators of online

speech. But the unique position of Internet intermediaries convinced Congress to

spare republishers of online content, in a situation such as the one here, from this

sort of ongoing entanglement with the courts.16

16 There are numerous reasons why a removal order that appears facially valid

may nevertheless be challenged by an Internet intermediary as illegitimate. As

detailed in the amicus curiae brief submitted by Professor Eugene Volokh, a

document that purports to represent a proper removal order might have been

fraudulently obtained, secured after only meager attempts at service, or represent a

forgery. A removal order also may be overbroad (as Bird claims to be the case

here), or otherwise inaccurate or misleading.

Professor Volokh’s brief incorporates a request for judicial notice of court

filings that assertedly illustrate these concerns. We denied this request for judicial

notice by a separate order. Formal notice is unnecessary to recognize the basic

point being made — to wit, that plaintiffs’ position, if accepted, would open the

door to fraud and to sharp litigating tactics. (See People v. Acosta (2002) 29

Cal.4th 105, 119, fn. 5 [denying a request for judicial notice of case files because

such notice “is not necessary . . . to envision” the general circumstances evinced in

the cases].)

28

To summarize, we conclude that in light of Congress’s designs with respect

to section 230, the capacious language Congress adopted to effectuate its intent,

and the consequences that could result if immunity were denied here, Yelp is

entitled to immunity under the statute. Plaintiffs’ attempted end-run around

section 230 fails.17

The dissents see this case quite differently. The dissenting justices would

endorse plaintiffs’ gambit as consistent with Congress’s intent in enacting section

230. We disagree on several levels with the dissents’ construction of section

230.18 The narrow, grudging view of section 230’s immunity provisions advanced

in both dissents is at odds with this court’s analysis in Barrett, and for that matter

with the views of virtually all courts that have construed section 230. Although

Justice Cuéllar, in his dissent, repeatedly suggests that Yelp somehow improperly

or prematurely injected itself into this action in a manner material to the necessary

analysis (e.g., dis. opn. of Cuéllar, J., post, at pp. 6, 25, 26), with this case’s

17 Other shortcomings of plaintiffs’ approach further expose it as something

quite different from what Congress intended. These include the fact that even if it

were accepted, plaintiffs’ vehicle for avoiding section 230 immunity would offer

no remedy for those wronged by authors who write anonymously or using a

pseudonym, and whose identities cannot be ascertained through third party

discovery in cases filed against Doe defendants. For in those instances, no

judgments, default or otherwise, could be obtained against the authors. (See Code

Civ. Proc., § 474; Flythe v. Solomon and Straus, LLC (E.D.Pa., June 8, 2011, No.

09-6120) 2011 WL 2314391 at *1 [“default judgments cannot be entered against

unnamed or fictitious parties because they have not been properly served”].)

18 We also dispute Justice Cuéllar’s characterizations of various aspects of

this opinion. Yet we see no need to address each of the numerous instances where

his dissent misstates our views. It is enough to recall former Justice Werdegar’s

observation that “[c]haracterization by the . . . dissenters of the scope of the

majority opinion is, of course, dubious authority.” (People v. Caballero (2012) 55

Cal.4th 262, 271 (conc. opn. of Werdegar, J.).)

29

unusual litigation posture — which was engineered by plaintiffs, not Yelp — it

was perfectly appropriate for Yelp to seek clarification of its legal obligations

before plaintiffs chose to initiate contempt proceedings against it. Additionally,

although the dispositive nature of Yelp’s section 230 argument makes it

unnecessary to dwell on the due process concerns addressed by Justice Kruger in

her concurring opinion (see generally conc. opn. of Kruger, J., post), at a bare

minimum we find it troubling that the dissents’ approach, if it were the law, could

create unfortunate incentives for plaintiffs to provide little or no prejudgment

notice to persons or entities that could assert immunity as defendants. A plaintiff

might reason that if even informal notice were provided, a nonparty republisher

might seek to intervene as a defendant and claim immunity prior to the entry of

judgment.19

Perhaps the dissenters’ greatest error is that they fail to fully grasp how

plaintiffs’ maneuver, if accepted, could subvert a statutory scheme intended to

promote online discourse and industry self-regulation. What plaintiffs did in

attempting to deprive Yelp of immunity was creative, but it was not difficult. If

plaintiffs’ approach were recognized as legitimate, in the future other plaintiffs

could be expected to file lawsuits pressing a broad array of demands for injunctive

relief against compliant or default-prone original sources of allegedly tortious

online content. Injunctions entered incident to the entry of judgments in these

19 Justice Cuéllar’s dissenting opinion could be construed as allowing an

injunction that on its face runs only against a party to be enforced, via a feeble

aiding and abetting theory, against a different person or entity that also had been

named as a party, but had successfully invoked section 230 immunity prior to the

entry of judgment. (See, e.g., dis. opn. of Cuéllar, J., post, at pp. 34-37.) If that

were the law, Justice Cuéllar would be correct that the incentive to intervene might

be dampened because the invocation of section 230 immunity might have little

practical effect in the long run. But it is not the law.

30

cases then would be interposed against providers or users of interactive computer

services who could not be sued directly, due to section 230 immunity. As evinced

by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which

demanded nothing less than control over what local library patrons could view on

the Internet (id., at p. 691), the extension of injunctions to these otherwise

immunized nonparties would be particularly conducive to stifling, skewing, or

otherwise manipulating online discourse — and in ways that go far beyond the

deletion of libelous material from the Internet. Congress did not intend this result,

any more than it intended that Internet intermediaries be bankrupted by damages

imposed through lawsuits attacking what are, at their core, only decisions

regarding the publication of third party content.

For almost two decades, courts have been relying on section 230 to deny

plaintiffs injunctive relief when their claims inherently treat an Internet

intermediary as a publisher or speaker of third party conduct. Certainly in some

instances where immunity has been recognized prior to judgment, the plaintiff was

in fact defamed or otherwise suffered tortious harm susceptible to being remedied

through an injunction. Yet Congress has declined to amend section 230 to

authorize injunctive relief against mere republishers, even as it has limited

immunity in other ways. (See Pub.L.No. 115-164, §4 (April 11, 2018) 132 Stat.

1253 [amending section 230 to add section 230(e)(5), clarifying that immunity

does not apply to certain civil claims and criminal actions associated with sex

trafficking].) Although this acquiescence is not itself determinative, it provides a

final indication that the dissenting justices are simply substituting their judgment

for that of Congress regarding what amounts to good policy with regard to online

speech. But that is not our role.

Even as we conclude that Yelp is entitled to immunity, we echo Barrett,

supra, 40 Cal.4th 33, in emphasizing that our reasoning and result do not connote

31

a lack of sympathy for those who may have been defamed on the Internet.

(Barrett, at p. 63.) Nevertheless, on this record it is clear that plaintiffs’ legal

remedies lie solely against Bird, and cannot extend — even through an injunction

— to Yelp.

On this last point, we observe that plaintiffs still have powerful, if

uninvoked, remedies available to them. Our decision today leaves plaintiffs’

judgment intact insofar as it imposes obligations on Bird. Even though neither

plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment

requires Bird to undertake, at a minimum, reasonable efforts to secure the removal

of her posts. A failure to comply with a lawful court order is a form of civil

contempt (Code Civ. Proc., §1209, subd. (a)(5)), the consequences of which can

include imprisonment (see In re Young (1995) 9 Cal.4th 1052, 1054). Much of the

dissents’ rhetoric regarding the perceived injustice of today’s decision assumes

that plaintiffs’ remaining remedies will be ineffective. One might more readily

conclude that the prospect of contempt sanctions would resonate with a party who,

although not appearing below, has now taken the step of filing an amicus curiae

brief with this court.

32

III. DISPOSITION

For the foregoing reasons, section 230 immunity applies here. We

therefore reverse the judgment of the Court of Appeal insofar as it affirmed the

trial court’s denial of Yelp’s motion to set aside and vacate the judgment. That

motion should have been granted to the extent that it sought to delete from the

order issued upon entry of the default judgment any requirement that Yelp

remove the challenged reviews or subsequent comments of the reviewers. The

cause is remanded for further proceedings as appropriate in light of this court’s

disposition.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

33

CONCURRING OPINION BY KRUGER, J.

I concur in the judgment. I agree with the plurality opinion that the

injunction against Yelp Inc. (Yelp) is invalid, but I begin with a more basic reason.

Yelp is not a party to this litigation, and the courts’ power to order people to do (or

to refrain from doing) things is generally limited to the parties in the case.

Although there are qualifications to the rule, there is no exception that permits the

sort of order we confront here: an order directing a nonparty website operator to

remove third party user content just in case the user defaults on her own legal

obligation to remove it. Before Yelp can be compelled to remove content from its

website, the company is entitled to its own day in court.

The plurality opinion instead concludes the injunction is invalid because it

violates section 230 of title 47 of the United States Code, part of the federal

Communications Decency Act of 1996 (Pub.L. No. 104-104 (Feb. 8, 1996) 110

Stat. 56; hereafter section 230), a statute that bars civil suit against website

operators like Yelp for permitting third parties to post content on their sites.

Although I believe it is unnecessary to reach the issue, I agree with the plurality

opinion that even if it were permissible to enter an injunction against a nonparty

website operator based solely on its past decision to permit the defendant to post

content on its website, the operator would be entitled to section 230 immunity in

that proceeding. I express no view on how section 230 might apply to a different

request for injunctive relief based on different justifications.

1

I.

A.

Although the plurality opinion begins its analysis with the special immunity

conferred on interactive computer service providers in section 230, I would begin

with legal principles of considerably older vintage. It is an “elementary common

law principle of jurisprudence”—followed in California, as elsewhere—that “a

judgment may not be entered either for or against one not a party to an action or

proceeding.” (Fazzi v. Peters (1968) 68 Cal.2d 590, 594.) A court’s power is

limited to adjudicating disputes between persons who have been designated as

parties or made parties by service of process; it has “no power to adjudicate a

personal claim or obligation unless it has jurisdiction over the person of the

defendant.” (Zenith Corp. v. Hazeltine (1969) 395 U.S. 100, 110 (Zenith).) This

common law principle is backed by the Constitution’s guarantee of procedural

fairness—a guarantee that, at its core, entitles persons to meaningful notice and

opportunity to be heard before a court fixes their legal rights and responsibilities.

(Hansberry v. Lee (1940) 311 U.S. 32, 40.)

Consistent with this principle, courts have long observed a general rule

against entering injunctions against nonparties. An injunction is a “ ‘personal

decree’ ” that “ ‘operates on the person of the defendant by commanding him to do

or desist from certain action’ ” as a remedy for violations or threatened violations

of the law. (Comfort v. Comfort (1941) 17 Cal.2d 736, 741.) More than a century

ago, the United States Supreme Court invalidated an injunction enjoining

nonparties, explaining: “[W]e do not think it comports with well-settled principles

of equity procedure to include [nonparties] in an injunction in a suit in which they

were not heard or represented, or to subject them to penalties for contempt in

disregarding such an injunction.” (Scott v. Donald (1897) 165 U.S. 107, 117.)

Some decades later, the high court again invalidated an injunction as “clearly

erroneous” insofar as it “assumed to make punishable as a contempt the conduct of

persons who act independently and whose rights have not been adjudged

2

according to law.” (Chase National Bank v. Norwalk (1934) 291 U.S. 431, 436–

437, fn. omitted.) And again, in Zenith, supra, 395 U.S. at page 110, the high

court ruled that the district court had erred in entering an injunction against an

entity (there, the parent company of the named defendant) that “was not named as

a party, was never served and did not formally appear at the trial.”

Judge Learned Hand, in an oft-cited statement of the rule, explained its

logic in this way: “[N]o court can make a decree which will bind any one but a

party; a court of equity is as much so limited as a court of law; it cannot lawfully

enjoin the world at large, no matter how broadly it words its decree. If it assumes

to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free

to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its

jurisdiction is limited to those over whom it gets personal service, and who

therefore can have their day in court.” (Alemite Mfg. Corp. v. Staff (2d Cir. 1930)

42 F.2d 832, 832–833 (Alemite).) The court in Alemite held that the district court

had no power to issue an injunction against a former employee of the defendant

because the former employee was not a party to the underlying action. (Ibid.)

California courts, employing the same general principle, have reached similar

conclusions in a variety of other scenarios. (People ex rel. Gwinn v. Kothari

(2000) 83 Cal.App.4th 759, 769 [“ ‘The courts . . . may not grant an . . . injunction

so broad as to make punishable the conduct of persons who act independently and

whose rights have not been adjudged according to law.’ ”]; People v. Conrad

(1997) 55 Cal.App.4th 896, 902 (Conrad) [“Injunctions are not effective against

the world at large.”].)

As all these authorities have recognized, while the law generally forbids

courts from naming nonparties, the law does in certain circumstances permit a

court to enforce an injunction against a nonparty. Without such a rule, enjoined

parties could “play jurisdictional ‘shell games’ ”; that is, they could “nullify an

injunctive decree by carrying out prohibited acts with or through nonparties to the

original proceeding.” (Conrad, supra, 55 Cal.App.4th at p. 902.) For that reason,

3

as this court observed more than a century ago, even though injunctions

“[o]rdinarily” run only to the named parties in an action, it is “common practice to

make the injunction run also to classes of persons through whom the enjoined

party may act, such as agents, servants, employees, aiders, abetters, etc., though

not parties to the action.” (Berger v. Superior Court (1917) 175 Cal. 719, 721

(Berger).) “[S]uch parties violating its terms with notice thereof are held guilty of

contempt for disobedience of the judgment.” (Ibid.; accord, e.g., Regal Knitwear

Co. v. Board (1945) 324 U.S. 9, 14.)

But under this general rule, while nonparties may be barred from acting on

behalf of, or in concert with, a defendant in violating an injunction, they may not

be barred from acting independently. The “whole effect” of the practice, we

explained in Berger, “is simply to make the injunction effectual against all through

whom the enjoined party may act, and to prevent the prohibited action by persons

acting in concert with or in support of the claim of the enjoined party, who are in

fact his aiders and abetters.” (Berger, supra, 175 Cal. at p. 721.) Put differently,

the practice permits a court to punish a nonparty for violating an injunction only

“when he has helped to bring about, not merely what the decree has forbidden,

because it may have gone too far, but what it has power to forbid, an act of a

party.” (Alemite, supra, 42 F.2d at p. 833, italics added.) To extend the court’s

power beyond this point would authorize a court in effect to impose judgment

without hearing, a result at odds with basic notions of procedural fairness.

B.

In the litigation underlying this appeal, plaintiffs sued defendant Ava Bird

for posting allegedly defamatory reviews on Yelp. Bird did not respond, and after

a prove-up hearing (Code Civ. Proc., § 585, subd. (b)), the trial court entered a

default judgment against her. In addition to awarding other relief, the trial court

ordered Bird to remove the offending reviews from Yelp. And then, apparently as

4

backup, the trial court ordered Yelp to do the same. 1 Until this point, Yelp was a

stranger to the litigation; it had neither been named as a party nor served with

process. And although plaintiffs had previously sent Yelp a copy of the

complaint, the complaint neither named Yelp as a party defendant nor notified

Yelp of their plans to seek injunctive relief against it. Unsurprisingly, then, Yelp

did not participate in the proceedings. It did not learn of the injunction until

plaintiffs served it with the court order.

When Yelp was served, it promptly filed a motion to set aside and vacate

the judgment. It argued, among other things, that the issuance of the injunction

against it violated both due process and section 230. The trial court denied the

motion. It reasoned that the injunction against Yelp was proper because Yelp is

aiding and abetting Bird’s violation of the injunction by, among other things,

1 In full, the trial court’s order reads:

Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA

BIRD is ordered to remove each and every defamatory review

published or caused to be published by her about plaintiffs HASSELL

LAW GROUP and DAWN HASSELL from Yelp.com and from

anywhere else they appear on the internet within 5 business days of

the date of the court’s order.

Defendant AVA BIRD, her agents, officers, employees or

representatives, or anyone acting on her behalf, are further enjoined

from publishing or causing to be published any written reviews,

commentary, or descriptions of DAWN HASSELL or the HASSELL

LAW GROUP on Yelp.com or any other internet location or website.

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.

As the plurality opinion explains, we are here concerned only with the

validity of the third paragraph of the order insofar as it requires Yelp to remove

specified reviews from its website.

5

allowing the reviews to remain posted on the website. The Court of Appeal

affirmed in pertinent part, though it pointedly declined to rely on the trial court’s

findings that Yelp was aiding and abetting Bird’s noncompliance. The trial

court’s aiding and abetting findings, the Court of Appeal ruled, were “premature”

and “also potentially improper to the extent proceedings were conducted without

the procedural safeguards attendant to a contempt proceeding.” (Hassell v. Bird

(2016) 247 Cal.App.4th 1336, 1354 (Hassell).) Instead, relying on Berger and

subsequent cases, the court reasoned that the trial court has “the power to fashion

an injunctive decree so that the enjoined party may not nullify it by carrying out

the prohibited acts with or through a nonparty to the original proceeding,” and thus

also has the power to direct Yelp “to effectuate the injunction against Bird.”

(Hassell, at pp. 1356–1357.)

The Court of Appeal’s reasoning reflects a misunderstanding of the scope

of the trial court’s power to enjoin a nonparty. The common law rule described in

Berger would have permitted the court to forbid Yelp and others from acting in

concert with Bird, or on Bird’s behalf, to violate the court’s injunction against

Bird. This is what it means to bind individuals “with or through” whom the

enjoined party acts. (Conrad, supra, 55 Cal.App.4th at p. 902.) But because Yelp

was not a party to the case, it could not, consistent with the common law rule, be

enjoined “from engaging in independent conduct with respect to the subject matter

of th[e] suit.” (Additive Controls & Measurement Sys. v. Flowdata (Fed.Cir.

1996) 96 F.3d 1390, 1395.) Here, the injunction expressly names Yelp and

“impose[s] obligations directly on [it].” (Ibid.) The injunction requires Yelp to

take action, regardless of whether it acts independently of or in concert with Bird

in failing to remove the challenged reviews, and “to that extent is in error.”

(Ibid.)2

2 Justice Liu disputes the characterization; he argues that the injunction at

issue does not forbid Yelp from engaging in independent conduct with respect to

6

Plaintiffs, as well as Justice Liu, argue that the injunction naming Yelp is

valid because it merely makes explicit that Yelp, as an entity “through” whom

Bird acts, is obligated to carry out the injunction on her behalf. (Dis. opn. of Liu,

J., post, at pp. 4–6.) But the trial court made no finding that Bird acts, or has ever

acted, “through” Yelp in the sense relevant under Berger, nor does the record

contain any such indication; we have no facts before us to suggest that Yelp is

Bird’s “agent” or “servant.” (Berger, supra, 175 Cal. at p. 720.) It is true and

undisputed, as plaintiffs and Justice Liu emphasize, that Bird’s statements were

posted on Yelp’s website with Yelp’s permission. (Dis. opn. of Liu, J., post, at

p. 6.) And as a practical matter, Yelp has the technological ability to remove the

reviews from the site. These facts might well add up (at least absent section 230)

to a good argument for filing suit against Yelp and seeking an injunctive remedy

in the ordinary course of litigation. But the question presented here is whether

these facts establish the sort of legal identity between Bird and Yelp that would

justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no

meaningful opportunity to participate. Without more, I do not see how they could.

(Cf., e.g., Paramount Pictures Corp. v. Carol Pub. Group, Inc. (S.D.N.Y. 1998)

25 F.Supp.2d 372, 375–376 (Paramount Pictures) [denying request to expand the

scope of copyright infringement injunction to nonparties merely because the

nonparties’ conduct “ ‘ may well be found [to render them] directly liable for

copyright infringement’ ”].)3

the subject matter of this lawsuit. (Dis. opn. of Liu, J., post, at pp. 4–5.) But of

course it does: The order requires Yelp to remove Bird’s reviews even if, acting

entirely independently of Bird, and “solely in pursuit of [its] own interests” (U.S.

v. Hall (5th Cir. 1972) 472 F.2d 261, 264), Yelp chooses not to (thus potentially

incurring its own defamation liability).

3 I would note, moreover, that if the trial court had relied on the existence of

an agency (or agency-like) relationship as a basis for issuing an injunction directly

against Yelp, the company would have been entitled to notice and an opportunity

to be heard on that issue. (See Zenith, supra, 395 U.S. at p. 111 [invalidating

7

The nature of the injunction, as well as the relationship between Yelp and

Bird, distinguishes this case from Ross v. Superior Court (1977) 19 Cal.3d 899

(Ross), on which the Court of Appeal relied. In Ross, an injunction was issued

against state officials and their agents, requiring payment of welfare benefits that

had been improperly withheld. Although state officials had ordered the counties

administering the benefits to make the payments as the injunction required, one

county’s board of supervisors refused and contempt proceedings were brought

against them. The supervisors argued that they could not be bound by the

injunction because they were not parties to the underlying action in which the

injunction was issued. (Id. at pp. 902–903.) This court rejected the argument,

explaining that, by statute, counties act on behalf of the state in administering

welfare benefits, and thus are bound to carry out an order against the state

concerning the administration of the benefits. (Id. at pp. 905–909.) In so holding,

the court relied on In re Lennon (1897) 166 U.S. 548, in which the high court held

in contempt a railway employee who refused to move cars of the defendant

railway to comply with an injunction against the defendant, despite the

defendant’s order to do so. (See Ross, at p. 905.)

injunction premised on parent company’s status as “alter ego” of the defendant,

where parent company had no opportunity to be heard].) Yelp received neither.

Justice Liu argues that the injunction against Yelp was properly entered

based on its “relationship to Bird’s tortious conduct,” but notes that Yelp “may

yet” raise arguments to the contrary in a contempt proceeding. (Dis. opn. of

Liu, J., post, at p. 9.) Here, Justice Liu appears to allude to the fact that in

California (unlike some other jurisdictions) a person to whom an injunction

applies is not barred from collaterally attacking the injunction’s validity in a

contempt proceeding. (People v. Gonzalez (1996) 12 Cal.4th 804, 818

(Gonzalez).) This rule does mean that Yelp would have an opportunity to litigate

its status as agent or aider and abettor of Bird’s noncompliance if the removal

order were to stand. But the opportunity to collaterally attack the injunction could

not, of course, make up for the court’s issuance of an overbroad injunction in the

first instance.

8

The Court of Appeal appeared to read Ross to mean that a trial court has

broad power to enjoin a nonparty with the practical ability to “effectuate” an

injunction entered against a party. (Hassell, supra, 247 Cal.App.4th at p. 1355.)

But Ross (like Lennon before it) stands for a far more limited proposition: A

party’s agent or servant, acting in his or her capacity as an agent or servant, is

bound to comply with an injunction against the party. This is because the acts of

the agent are imputed to the party; the agent’s failure to act as the law demands is

the party’s failure, and it thus falls within the scope of the court’s power to punish.

The same is not, however, true of an individual who acts independently. The law

draws this distinction, as Judge Hand explained of Lennon, “for it is not the act

described which the decree may forbid, but only that act when the defendant does

it.” (Alemite, supra, 42 F.2d at p. 833, italics added.) The nonparty who

independently does, or fails to do, what the decree commands is entitled to his or

her own day in court.

C.

Although plaintiffs, like the Court of Appeal, rely largely on a rule

concerning a trial court’s power to forbid parties from nullifying an injunctive

decree by carrying out prohibited acts through nonparties, their real concern does

not appear to be that Bird is using or will use Yelp as a pawn to play

“jurisdictional ‘shell games.’ ” (Conrad, supra, 55 Cal.App.4th at p. 902.) Their

concern instead appears to be that Bird will simply ignore the injunction—all on

her own—and the offending reviews will remain visible unless and until Yelp

takes independent action.

The concern is a substantial one, but the usual remedy for such concerns is

to sue for a determination of the third party’s legal obligation to do as plaintiffs

wish. Plaintiffs have identified no instance in which a court has upheld the

issuance of an injunction against a nonparty under remotely similar circumstances.

Perhaps the closest plaintiffs have come is U.S. v. Hall, supra, 472 F.2d 261, in

which a federal court of appeals upheld the criminal contempt conviction of a

9

nonparty for interference with the operation of a school campus for purposes of

obstructing implementation of a desegregation order. The nonparty’s actions, the

court explained, “imperiled the court’s fundamental power to make a binding

adjudication between the parties properly before it.” (Id. at p. 265.) But the

court’s holding in that case turned on the nonparty’s willful obstruction of the

defendant’s compliance with the court’s judgment. (Ibid. [distinguishing Alemite

and Chase National Bank]; see also U.S. v. Paccione (2d Cir. 1992) 964 F.2d

1269, 1275 [similarly distinguishing Alemite because the case before it “dealt with

a person who interfered with the res, the disposition of which the district court had

specifically restricted, and who consciously impeded the rights, obligations and

efforts of the parties bound by the court’s order from attempting to comply with

valid court orders”]; see generally Rest.2d Judgments, § 63 [discussing duty not to

obstruct compliance with court judgment].) In this case, there is no argument that

Yelp is obstructing Bird’s compliance with the court’s order; Yelp represents (and

we have no reason to doubt) that it will not stand in the way if Bird herself

removes the reviews. 4 The concern is instead that Bird is withholding her own

compliance, and the question is whether Yelp can be ordered to act independently,

even though Yelp has not been served or its own rights adjudicated. Again,

plaintiffs have cited no authority that permits that result.

Plaintiffs also argue that the order is proper because Yelp has no

independent interest in continuing to publish reviews that have been found by the

trial court to be defamatory (albeit in a case to which Yelp was not a party). Yelp

and its amici vigorously disagree, arguing that it has a protected First Amendment

interest in the publication of the reviews, separate and apart from Bird’s own

4 As a practical matter, that Bird can independently effectuate the judgment

further distinguishes Ross, supra, 19 Cal.3d 899, where the defendant “could

comply with the provisions of the . . . order requiring the payment of retroactive

welfare benefits only through the actions of county welfare departments.” (Id. at

p. 909, italics added.)

10

authorial interest, that has not yet been adjudicated. (Cf., e.g., New York Times

Co. v. Sullivan (1964) 376 U.S. 254 [discussing First Amendment rights of both

the authors of a newspaper advertisement and the newspaper that published it];

Taylor v. Sturgell (2008) 553 U.S. 880, 892–893 [“A person who was not a party

to a suit generally has not had a ‘full and fair opportunity to litigate’ the claims

and issues settled in that suit,” and therefore ordinarily is not bound by the

judgment.].) We need not definitively resolve this controversy here, however,

because it is incontestable that Yelp has an interest in avoiding a court order,

backed by the threat of contempt sanctions, requiring it to do something it does not

believe it is legally obligated to do. Whether Yelp is right or wrong about the

nature of its obligations is beside the point. A person may be wrong and

nevertheless entitled to his or her day in court.

D.

So far, I have described common ground with Justice Cuéllar’s dissenting

opinion. Justice Cuéllar does not defend the trial court’s decision to issue an

injunction against Yelp in a proceeding to which it was not a party, and he would

vacate the Court of Appeal’s judgment upholding that order. (Dis. opn. of Cuéllar,

J., post, at pp. 34–39.) Justice Cuéllar would, however, remand for consideration

of whether the injunction against Bird can be enforced against Yelp because the

company has aided and abetted, or otherwise acted in concert with, Bird in her

violation of the court’s injunction. (Id. at p. 39.)

I agree with Justice Cuéllar that this is the pertinent standard under Berger

and related cases, but I do not believe a remand is warranted to consider whether

Yelp has aided and abetted Bird’s noncompliance with the court’s order against

her. The question before us concerns only the validity of the injunction entered

against Yelp. To be sure, after that injunction issued, the trial court later

concluded that Yelp had also aided and abetted the violation of the injunction

against Bird and could be ordered to remove the reviews for that reason. But as

noted, the Court of Appeal held that these aiding and abetting findings were both

11

“premature” and “also potentially improper” to the extent they were made in the

context of Yelp’s legal challenge to the validity of the judgment, and without the

procedural protections to which Yelp would have been entitled in a contempt

proceeding. (Hassell, supra, 247 Cal.App.4th at p. 1354; cf. Gonzalez, supra, 12

Cal.4th at p. 816 [contempt proceedings are “considered quasi-criminal, and the

defendant possesses some of the rights of a criminal defendant”]; Blockowicz v.

Williams (7th Cir. 2010) 630 F.3d 563, 568 (Blockowicz) [“Actions that aid and

abet in violating the injunction must occur after the injunction is imposed[.]”];

Paramount Pictures, supra, 25 F.Supp.2d at p. 375 [“Nor does an injunction reach

backwards in time to action taken prior to the time it was issued.”].) Plaintiffs

have not challenged the Court of Appeal’s holding on this point. That holding

does not preclude plaintiffs from instituting further proceedings if they believe

Yelp has engaged in relevant post-order evasive conduct, or from seeking

appropriate clarification of the scope of the injunction against Bird, but it does

foreclose reliance on an aiding and abetting theory to validate the order enjoining

Yelp in the first instance. And for present purposes, the conclusion that the

injunction against Yelp is invalid is a complete answer to the issue presented to us.

To the extent the question might arise in the future, however, I offer a

cautionary note. The difficulties with the trial court’s aiding and abetting analysis

extend beyond matters of timing and procedure. The trial court in this case

reasoned, among other things, that Yelp is aiding and abetting Bird’s violation of

the injunction simply by failing to remove Bird’s reviews from the website. But

this establishes only that Yelp has not stepped forward to act despite Bird’s

noncompliance. That is not aiding and abetting. (See Blockowicz, supra, 630 F.3d

at p. 568 [concluding that Internet service provider’s refusal to comply with an

injunction was “mere inactivity” that was “simply inadequate to render them

aiders and abettors in violating the injunction”]; see also Conrad, supra, 55

Cal.App.4th at p. 903 [before a nonparty can be punished for violating the terms of

an injunction, it must be shown that the nonparty has acted “with or for those who

12

are restrained”; “some actual relationship with an enjoined party is required” and

“[m]ere ‘mutuality of purpose’ is not enough”].) Put differently: The mere fact

that Yelp has not removed Bird’s reviews from its website is not reason enough to

avoid litigating the question whether Yelp does, in fact, have a legal obligation to

remove the reviews from its website, in a forum in which Yelp has a meaningful

opportunity to be heard.5

II.

In my view, these basic common law principles suffice to decide the case.

The plurality opinion, however, decides the matter on a different ground. It holds

that the trial court’s order directing Yelp to remove the reviews from the website is

barred by Yelp’s statutory immunity under section 230. Although I believe it is

unnecessary to reach the section 230 question, I agree with the plurality opinion’s

conclusion given the particular circumstances of this case: Even if it were

permissible to issue an injunction against Yelp solely because it once permitted

Bird to post her reviews and has the ability to remove them, the proceedings

would be barred by section 230.

Two subsections of section 230 form the basis of the immunity Yelp claims

in this case. First, section 230, subsection (c)(1) provides that “[n]o provider or

user of an interactive computer service shall be treated as the publisher or speaker

of any information provided by another information content provider.” Second,

section 230, subsection (e)(3) provides that “[n]o cause of action may be brought

and no liability may be imposed under any State or local law that is inconsistent

with this section.” Together, “[t]hese provisions have been widely and

5 In his dissent, Justice Cuéllar suggests other “evidence and interactions”

that perhaps might support a finding that a website operator or other Internet

platform acted as an aider and abettor. (Dis. opn. of Cuéllar, J., post, at pp. 35–

36.) We have not received full briefing on this question, and I express no view on

it. I do, however, caution that even when the common law permits the

enforcement of an injunction against a third party aider and abettor, other sources

of law, including section 230, may not. (Cf. plur. opn., ante, at p. 25.)

13

consistently interpreted to confer broad immunity against defamation liability for

those who use the Internet to publish information that originated from another

source.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 39 (Barrett).)

In an early, influential discussion of section 230, the Fourth Circuit

interpreted the provision to forbid any legal obligation that “would place a

computer service provider in a publisher’s role.” (Zeran v. America Online, Inc.

(4th Cir. 1997) 129 F.3d 327, 330.) The language of Zeran might be read to

suggest that a court could never order a website to remove third party content,

since any such order would necessarily interfere with the website’s choices about

what content to publish. But section 230 immunity has not been thought to sweep

quite so broadly. Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 is

illustrative. There, the Ninth Circuit concluded that section 230 immunity

precluded a plaintiff’s claim of negligence against the website Yahoo for failure to

take down fake profile accounts purporting to be the plaintiff, but did not preclude

a claim of promissory estoppel based on Yahoo’s failure to fulfill a promise to

remove the material. (Barnes, at pp. 1104–1109.) The Ninth Circuit reasoned that

the plaintiff’s promissory estoppel claim “does not seek to hold Yahoo liable as a

publisher or speaker of third party content, but rather as the counter-party to a

contract, as a promisor who has breached.” (Id. at p. 1107.) Liability on the latter

claim, the court explained, “would come not from Yahoo’s publishing conduct,

but from Yahoo’s manifest intention to be legally obligated to do something,

which happens to be removal of material from publication.” (Ibid.)

Distilling the available authorities, section 230 immunity applies to an

effort to bring a cause of action or impose civil liability on a computer service

provider that derives from its status as a publisher or speaker of third party

content. This reading of the statute is consistent with the policies articulated in

influential cases interpreting section 230 immunity such as Zeran and reiterated in

the plurality opinion: Section 230 forbids a cause of action or the imposition of

liability when the effect is to impose liability for, or draw the provider into

14

litigation to defend, its past editorial judgments (or lack thereof) in permitting

third party postings. But section 230 does not bar a cause of action solely because

the result might be a court order requiring the provider, as the publisher of the

posting in question, to take steps to remove it.

In each of the cases cited in the plurality opinion, the court applied section

230 to bar the filing of a lawsuit seeking to hold an interactive computer service

responsible for offending posts written by a third party. This case concerns a

different scenario. In this case, plaintiffs have filed no lawsuit against Yelp and

have pursued no substantive claim against it. The injunction, as narrowed to

Bird’s past reviews, on its face does not seek to draw Yelp into litigation to second

guess or penalize Yelp for its initial decision to post Bird’s reviews, despite their

defamatory content. As plaintiffs emphasize, the injunction instead requires only

that, now that the reviews have been found by a court to be defamatory, Yelp

remove the reviews. The injunction of course recognizes that Yelp is—as a matter

of fact—the publisher of Bird’s reviews; the reviews cannot come down without

Yelp’s cooperation. But that is not the pertinent question. The question is instead

whether the injunction necessarily holds Yelp legally responsible for, or otherwise

authorizes litigation against Yelp solely because of, its editorial choices.

As the case comes to us, I agree with the plurality opinion that the answer

to that question is yes. The justification plaintiffs offer for the issuance of the

injunction is that Bird acted with Yelp’s permission in posting her reviews on its

website, and Yelp has the ability to remove them even if Bird chooses not to. This

means, as the plurality opinion says, that plaintiffs are proceeding against Yelp

based on nothing more than its role as a publisher of third party content. (Plur.

opn., ante, at pp. 22–25.) As such, the only distinction between this case and a

lawsuit seeking to hold Yelp civilly liable for granting this permission to third

party users—which, as all agree, would unquestionably be barred by section 230

immunity—is plaintiffs’ decision not to name Yelp as a party (and thus, as

plaintiffs would have it, to save Yelp the trouble of defending itself). But for

15

reasons I have already explained, plaintiffs’ decision cannot deprive Yelp of its

opportunity to be heard on the propriety of the injunction against it. The

distinction in procedure thus ultimately makes no difference. Either way,

plaintiffs have drawn Yelp into litigation solely because of its past decision to

allow Bird to post her reviews. Even if the trial court otherwise had the power to

issue an injunction against Yelp solely on that basis, the proceedings would be

barred by section 230.

I would, however, stop there; I venture no opinion as to how section 230

might apply to other take-down orders based on different justifications. I

understand the plurality opinion’s application of section 230 to be similarly

limited. The plurality opinion “recognize[s] that not all legal duties owed by

Internet intermediaries necessarily treat them as the publishers of third party

content, even when these obligations are in some way associated with their

publication of this material”; it instead holds that, on the record before us, “Yelp is

inherently being treated as the publisher of the challenged reviews, and it has not

engaged in conduct that would take it outside section 230’s purview in connection

with the removal order.” (Plur. opn., ante, at pp. 24–25.) This restraint is, I

believe, appropriate here. Section 230 is often credited with giving rise to the

modern Internet as we know it, but the broad sweep of section 230 immunity also

has “troubling consequences.” (Barrett, supra, 40 Cal.4th at p. 40; see id. at

pp. 62–63.) Section 230, as broadly construed, has brought an end to a number of

lawsuits seeking remedies for a wide range of civil wrongs accomplished through

Internet postings—including, but not limited to, defamation, housing

discrimination, negligence, securities fraud, cyberstalking, and material support of

terrorism. (See, e.g., Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817

F.3d 12, 19 [citing cases]; Pennie v. Twitter, Inc. (N.D.Cal. 2017) 281 F.Supp.3d

874, 888–889.) Whether to maintain the status quo is a question only Congress

can decide. But at least when it comes to addressing new questions about the

scope of section 230 immunity, we should proceed cautiously, lest we

16

inadvertently forbid an even broader swath of legal action than Congress could

reasonably have intended.

III.

I, like my colleagues, am sympathetic to plaintiffs’ dilemma. Plaintiffs

have proved to the satisfaction of the trial court that Bird’s critical Yelp reviews

are false; Bird has yet to comply with the court’s order to remove the reviews; and

section 230 forbids them from suing Yelp to require it to remove the reviews if

Bird fails to do so. But as I see it, issuing an injunction directly against Yelp,

without affording it a meaningful opportunity to be heard, is not an available

alternative. Plaintiffs’ understandable desire to circumvent section 230 does not

permit us to cast aside either the “ ‘ “deep-rooted historic tradition that everyone

should have his own day in court,” ’ ” or the fundamental due process principles

on which that tradition rests. (Richards v. Jefferson County (1996) 517 U.S. 793,

798.) I therefore join the plurality opinion in concluding that Yelp’s motion to

vacate the injunction against it should have been granted.

KRUGER, J.

17

DISSENTING OPINION BY LIU, J.

The court expresses “sympathy” for those who have been defamed on the

Internet, including plaintiffs Dawn Hassell and the Hassell Law Group, who won a

lawful judgment against defendant Ava Bird for defamatory reviews that Bird

posted on Yelp. (Plur. opn., ante, at p. 32; see conc. opn. of Kruger, J., ante, at

p. 17.) But Hassell is not seeking sympathy. She is seeking a remedy for the

damage done to her and her law firm. The trial court provided that remedy in the

form of damages against Bird and an injunction ordering both Bird and Yelp to

remove the defamatory reviews, and the Court of Appeal affirmed. However,

more than four years after the trial court issued its order, Bird’s defamatory

reviews remain posted on Yelp. Bird has refused to comply with the injunction,

and Yelp claims it is under no legal obligation to comply. Today’s decision agrees

with Yelp, thereby ensuring that Hassell will continue to suffer reputational harm

from the unlawful postings unless Bird is somehow made to comply.

This “dilemma” (conc. opn. of Kruger, J., ante, at p. 17) is one of the

court’s own making. As Justice Cuéllar explains, today’s extension of the

Communications Decency Act of 1996 (47 U.S.C. § 230) (section 230) to

immunize Yelp is not supported by case law or by the statute’s text and purpose.

(Dis. opn. of Cuéllar, J., post, at pp. 7–29.) Section 230 does not immunize Yelp

from this removal order issued by a California court in a case where “[n]o claim

was ever brought against Yelp seeking defamation or tort liability for its editorial

1

decisions.” (Dis. opn. of Cuéllar, J., post, at p. 18.) Decisions like Zeran v.

America Online, Inc. (4th Cir. 1997) 129 F.3d 327 are inapposite because they

involved lawsuits filed directly against providers of interactive computer services

for tort liability. In Barrett v. Rosenthal (2006) 40 Cal.4th 33 (Barrett), we relied

on those decisions to conclude that “section 230 exempts Internet intermediaries

from defamation liability for republication.” (Id. at p. 63.) We rested our holding

on the understanding that “[s]ubjecting service providers to notice liability would

defeat ‘the dual purposes’ of section 230, by encouraging providers to restrict

speech and abstain from self-regulation. [Citation.] A provider would be at risk

for liability each time it received notice of a potentially defamatory statement in

any Internet message, requiring an investigation of the circumstances, a legal

judgment about the defamatory character of the information, and an editorial

decision on whether to continue the publication.” (Barrett at p. 45, italics added.)

We emphasized that “[a]ny investigation of a potentially defamatory Internet

posting is . . . a daunting and expensive challenge.” (Id. at p. 57, italics added.)

Our opinion repeatedly explained that section 230 is intended to protect service

providers from investigation and litigation burdens arising from notice of users’

“potentially” defamatory statements. (Id. at pp. 44–46, 55, 57.)

These concerns are not present in this case. No one has burdened Yelp

with defending against liability for potentially defamatory posts. Here, the trial

court ordered Yelp to remove postings that have been already adjudicated to be

defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to

incur expenses to defend its editorial judgments or any of its business practices.

The trial court ruled that Bird had defamed Hassell on Yelp, and it directed Yelp

to help effectuate the remedy. Yelp’s conduct as a speaker or publisher was never

at issue in Hassell’s lawsuit, and the trial court imposed no liability on Yelp for

such conduct. Instead, the trial court enjoined Yelp as part of the remedy for

2

Bird’s tortious conduct toward Hassell. A company in Yelp’s position may face

burdens associated with determining the “validity or scope” of a removal order or

“the manner in which it is implemented.” (Plur. opn., ante, at p. 29.) But these

are not the type of burdens contemplated by Barrett or the cases upon which

Barrett relied in explaining the purpose of section 230 immunity.

As for Yelp’s due process claim, the Court of Appeal properly clarified that

the question here is “whether the trial court was without power to issue the

removal order in the first instance.” (Hassell v. Bird (2016) 247 Cal.App.4th

1336, 1357, italics added.) The matter before us is Yelp’s motion to vacate the

trial court’s judgment; this is not a contempt proceeding or other action seeking to

impose liability on Yelp for violating the injunction. (Ibid. [Yelp’s postjudgment

conduct “has no bearing on the question” presented].) Justice Kruger argues that

the removal order directed at Yelp violates due process because Yelp was never

given its “own day in court” before the order was issued. (Conc. opn. of Kruger,

J., ante, at p. 9.) She cites Judge Learned Hand’s opinion in Alemite

Manufacturing Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 (Alemite) for the

proposition that a court generally cannot “bind any one but a party” and “cannot

lawfully enjoin the world at large.” (Id. at p. 832; see conc. opn. of Kruger, J.,

ante, at p. 3.)

But “[g]eneral propositions do not decide concrete cases” (Lochner v. New

York (1905) 198 U.S. 45, 76 (dis. opn. of Holmes, J.)), and the facts of Alemite are

instructive. The plaintiff there won a patent infringement suit against John Staff

and obtained an injunction “against John, ‘his agents, employees, associates and

confederates,’ enjoining them from infringing, or ‘aiding or abetting or in any way

contributing to the infringement.’ ” (Alemite, supra, 42 F.2d at p. 832.) “At the

time of the suit [John’s brother] Joseph was a salesman for John, but later, having

left his employ, he set up in business for himself, and was proved to have

3

infringed the patent. The plaintiff then began proceedings in the original suit to

punish Joseph for contempt, asserting that he was bound by the decree, and that

his new business was a violation of the writ.” (Ibid.) The Second Circuit held that

the injunction in the action against John could not extend to Joseph’s new act of

infringement. (Id. at p. 833.) Noting that “[t]he District Judge found that John

‘had no connection or part whatever in the acts of contempt hereby adjudged

against Joseph Staff’ ” (id. at p. 832), Judge Hand explained that “[t]he District

Court had no more power in the case at bar to punish [Joseph] than a third party

who had never heard of the suit” (id. at p. 833).

The injunction in Alemite could not reach Joseph, a nonparty, because his

infringement of the same patent was entirely independent of John’s original act of

infringement. It was in that sense that Judge Hand said Joseph was a stranger to

the underlying suit. The same is not true here. The trial court did not enjoin Yelp

“ ‘from engaging in independent conduct with respect to the subject matter of th[e]

suit.’ ” (Conc. opn. of Kruger, J., ante, at p. 6.) Yelp was directed to remove

Bird’s defamatory reviews of Hassell, the very subject matter of the underlying

suit. The trial court did not enjoin Yelp from posting any other defamatory

reviews of Hassell, even if such reviews were identical to Bird’s. This is fully

consistent with Judge Hand’s admonition that “it is not the act described which the

decree may forbid, but only that act when the defendant does it.” (Alemite, supra,

42 F.2d at p. 833.) The defendant here is Bird; the unlawful acts are Bird’s

defamatory reviews; and the injunction directs Yelp to remove only Bird’s

defamatory reviews, not anyone else’s. The removal order illustrates the rule that

an injunction may extend to a nonparty “when [the nonparty] has helped to bring

about . . . what [the injunction] has power to forbid, an act of a party.” (Ibid.)

In saying that the removal order enjoins Yelp from engaging in

“independent conduct,” Justice Kruger strays from the meaning of that term as

4

used in the cases she cites. (See Additive Controls & Measurement Sys. v.

Flowdata (Fed.Cir. 1996) 96 F.3d 1390, 1395 (Flowdata); Paramount Pictures

Corp. v. Carol Pub. Group, Inc. (S.D.N.Y. 1998) 25 F.Supp.2d 372, 375–376

(Paramount Pictures).) In those cases, as in Alemite, a plaintiff obtained an

injunction against one or more defendants for patent or copyright infringement and

thereafter sought to bind nonparties to the injunction based on the nonparties’ acts

of infringement. This was prohibited, the courts explained, because the nonparties

had engaged in their own acts of infringement separate and apart from the

defendants’ infringing acts that were the subject of the injunction. (See Flowdata,

at pp. 1395–1397; Paramount Pictures, at pp. 375–376.) “Independent conduct”

in this context means conduct by a nonparty that is allegedly unlawful independent

of the defendant’s wrongdoing; it does not encompass conduct by a nonparty that

facilitates the defendant’s wrongdoing. Indeed, Flowdata recognized — with no

misgivings about due process — that courts have authority to issue a directive to a

nonparty when “ ‘necessary or appropriate to effectuate and prevent the frustration

of orders’ ” directed at a party. (Flowdata, at p. 1396, quoting U.S. v. New York

Tel. Co. (1977) 434 U.S. 159, 172 [court may require telephone company to

cooperate with installation of pen register device].) Alemite, Flowdata, and

Paramount Pictures would be more on point if the trial court had ordered Yelp to

remove identical reviews posted by people other than Bird. But the removal order

targets only the reviews written by Bird, the defendant in the underlying suit.

This court long ago observed that “it has been a common practice to make

the injunction run also to classes of persons through whom the enjoined party may

act, such as agents, servants, employees, aiders, abetters, etc., though not parties to

the action, and this practice has always been upheld by the courts, and any of such

parties violating its terms with notice thereof are held guilty of contempt for

disobedience of the judgment.” (Berger v. Superior Court (1917) 175 Cal. 719,

5

721 (Berger).) Justice Kruger doubts that “Bird acts, or has ever acted, ‘through’

Yelp in the sense relevant under Berger” (conc. opn. of Kruger, J., ante, at p. 7)

and suggests that Yelp’s conduct here is merely passive. But such a

characterization of Yelp’s role blinks reality.

If Bird had gone to the town square every day to shout defamatory

comments about Hassell, or if Bird had made those comments to 50 friends, it is

doubtful this case would be here today. Instead, Bird posted a review on Yelp, a

website that attracts tens of millions of visitors every month. Yelp is an

interactive service provider dedicated to inviting people like Bird to post reviews

of local businesses and inviting users to search, sort, and read those reviews (all

while exposing website visitors to advertisements). Yelp formats the reviews,

makes the reviews searchable, and aggregates reviews of each business into a

rating from one to five stars. Yelp’s Terms of Service make clear to reviewers that

“[w]e may use Your Content in a number of different ways, including publicly

displaying it, reformatting it, incorporating it into advertisements and other works,

creating derivative works from it, promoting it, distributing it, and allowing others

to do the same in connection with their own websites and media platforms.” The

Terms of Service also state that Yelp owns “visual interfaces, interactive features,

graphics, design, compilation, including, but not limited to, our compilation of

User Content and other Site Content, computer code, products, software, aggregate

user review ratings, and all other elements and components of the Site excluding

Your Content, User Content and Third Party Content.”

The treatment of user comments by other websites may be more passive,

and I do not suggest that any website that posts user comments may be subject to a

removal order like the one here. But Yelp’s relationship with reviewers like Bird

is not passive. Even if Yelp was not Bird’s agent or servant (cf. Ross v. Superior

Court (1977) 19 Cal.3d 899, 905–909 (Ross); Ex parte Lennon (1897) 166 U.S.

6

548, 555–556), it is evident that Bird acted through Yelp in the most relevant

sense: It was Bird’s defamation of Hassell, facilitated by Yelp’s willing and active

participation, that the trial court sought to enjoin. The removal order directed at

Yelp is an example of the “common practice” of “mak[ing] the injunction

effectual against all through whom the enjoined party may act, and to prevent the

prohibited action” — here, the continued display of Bird’s defamatory reviews on

Yelp — “by persons acting in concert with or in support of the claim of the

enjoined party.” (Berger, supra, 175 Cal. at p. 721, italics omitted.)

Justice Kruger suggests that whether Bird acted through Yelp in a manner

that made Yelp a proper subject of the injunction is an issue on which Yelp had a

right to notice and an opportunity to be heard before the injunction issued. (Conc.

opn. of Kruger, J., ante, at p. 7, fn. 3.) But I agree with the Court of Appeal that

“a trial court does have the power to fashion an injunctive decree so that the

enjoined party may not nullify it by carrying out the prohibited acts with or

through a nonparty to the original proceeding.” (Hassell v. Bird, supra, 247

Cal.App.4th at p. 1357.)

Again, Alemite is instructive. After obtaining an injunction “against John,

‘his agents, employees, associates and confederates,’ enjoining them from

infringing, or ‘aiding or abetting or in any way contributing to the infringement,’ ”

the aggrieved plaintiff initiated an action “to punish Joseph for contempt, asserting

that he was bound by the decree” as a nonparty within the ambit of the

injunction’s terms. (Alemite, supra, 42 F.2d at p. 832.) It is true that Joseph had

notice and an opportunity to be heard in the contempt proceeding, and he

convinced the district court that his new act of infringement had no connection to

John’s prior act of infringement that was the subject of the injunction. But

suppose the district court had concluded otherwise and found Joseph in contempt.

That determination would rest on the premise that the injunction validly applied to

7

Joseph when it was issued (provided he had notice of it, which he did). If Joseph

could not have been bound by the injunction because he had no notice or

opportunity to be heard before it was issued, then he could not have been punished

for contempt under any scenario. Joseph could only have been bound by a new

injunction after being heard on the nature of his conduct; he could not have been

punished for violating the existing injunction. Yet Alemite provides no support for

this view. Instead, Judge Hand recognized the validity of punishing a nonparty

who “has helped to bring about” the prohibited act of a party as a narrow

exception to the general rule that an injunction can apply only to persons who have

had “their day in court.” (Id. at p. 833.)

In Ross, supra, 19 Cal.3d 899, we rejected the local supervisors’ claim that

they could not be held in contempt for violating an injunction directed at state

officials and their “ ‘agents’ ” (id. at p. 906) because they were not parties to the

suit in which the injunction was issued and “received no notice and were afforded

no opportunity to defend that action” (id. at p. 905). We determined that the local

supervisors were, by statute, “agents” of the state officials for purposes of

administering welfare benefits, notwithstanding the supervisors’ arguments to the

contrary. (Id. at pp. 906–909.) The supervisors had no opportunity to present

their arguments that they were not “agents” of the state before the injunction

issued — yet we upheld the finding of contempt because they “wilfully refused to

comply with the judgment.” (Id. at p. 904.) In other words, the injunction was

binding on the supervisors when issued, even though they had no notice or

opportunity to be heard beforehand. Justice Kruger does not explain how, under

her view, the supervisors in Ross could have been bound.

The only difference here is that the injunction names Yelp instead of using

a general phrase to refer to nonparties (e.g., “Bird’s agents, employees, associates,

confederates, aiders and abettors”) as in Alemite and Ross. But that makes no

8

difference to the due process inquiry. Yelp may yet argue in a contempt

proceeding that its relationship to Bird’s tortious conduct was not sufficient to

justify the trial court’s removal order. But if that argument were to fail, the fact

that Yelp — like the supervisors in Ross — had no notice or opportunity to be

heard before the trial court issued the injunction would not preclude a finding of

contempt. Such a finding would necessarily mean the injunction was valid when

issued.

Finally, the nature of Yelp’s relationship to Bird that makes Yelp a proper

subject of the injunction is not that of a “publisher or speaker” for purposes of

section 230 immunity. Yelp’s obligation to remove Bird’s defamatory reviews

does not stem from any judgment as to the legality of any editorial decision by

Yelp to publish Bird’s speech. As noted, the only issue in the underlying suit was

whether Bird, not Yelp, had defamed Hassell and her firm; the suit did not impose

on Yelp any burdens of defending itself against liability for “potentially

defamatory” statements. (Barrett, supra, 40 Cal.4th at p. 45.) Whether Yelp

could claim section 230 immunity in a contempt proceeding on the ground that its

continued refusal to remove Bird’s reviews is a matter of editorial judgment,

notwithstanding a state court judgment finding the reviews defamatory, is a matter

not before us.

The Court of Appeal got it right: Yelp has no statutory immunity from the

removal order, and the removal order directed at Yelp does not violate due process

of law. I would affirm the judgment of the Court of Appeal.

LIU, J.

9

DISSENTING OPINION BY CUÉLLAR, J.

Even — indeed, perhaps especially — in a society that values free

expression, people expect courts and statutes to offer them minimal protections

from disparaging misrepresentations or abject lies deliberately circulated to the

public. Today’s plurality opinion does not. Despite clear evidence that the federal

Communications Decency Act of 1996 (47 U.S.C. § 230 (hereafter section 230))1

was no trump card letting providers of “interactive computer service” (§ 230(f)(2))

such as Internet platforms evade responsibility for complying with any state court

order involving defamation or libel, the plurality opinion posits that our state’s

protections against the willful spread of false, damaging information are just not

compatible with the Internet. In reaching this conclusion, the plurality opinion

unfortunately misconstrues the Communications Decency Act and misapplies our

precedent. It also runs the risk of misjudging the consequences of implying, in the

early 21st century, that protections from libel, defamation, so-called “revenge

porn,” and similar actions are plenty available except, of course, where they

arguably matter most: on the digital network that gives a lone voice in the public

square a megaphone loud enough to be heard in the most remote corners of the

planet.

In fact, the question this case presents is as novel as it is important –– one

undecided by this court or any other. We must resolve whether section 230 grants

an interactive computer service provider immunity from complying with a

1 Undesignated references are to section 230.

1

properly issued state court order, and if not, under what circumstances a court may

require such a service provider to remove posted information that a court has

found defamatory. At core this case implicates a dispute not only about

defamation on the Internet, but about whether a court can fashion an effective

remedy that applies to Internet platforms. The plurality opinion is right to

recognize that this question depends crucially on section 230 –– but it also

implicates due process principles, as well as California law governing court issued

injunctions.

Yet the plurality opinion’s answer to this question follows almost entirely

from its analysis of section 230. Remarkably, it asserts that section 230 alone

prevents a California court from directing Yelp, Inc. (Yelp) to remove from its

website statements that have been judicially adjudged defamatory. The plurality

opinion expands this court’s precedent to reach its conclusion and authorizes

interactive computer service providers to flout California court orders by asserting

section 230 immunity. In doing so, the plurality opinion endangers victims of

torts committed online, impermissibly limits the remedies available to Californians

who rely on our state courts for protection, and sanctions a rule bereft of

justification under California or federal law, with troubling implications for an

Internet-dependent society.

To the extent the plurality opinion maintains that section 230 acts as an

absolute bar to this long-standing application of California law, we disagree ––

and so does a majority of the court. The plurality opinion’s analysis of section 230

is no more compelled by the statutory language of section 230, the legislative

history of the statute, or any previous case law broadly interpreting section 230

than it is by anything in California law. Although it explicitly addresses only

section 230, the plurality opinion nonetheless concludes that there is no remedy

for Dawn L. Hassell and her law firm, even through an injunction extended to

Yelp. (Plur. opn., ante, at p. 32.) We disagree.

2

To provide the nuanced analysis necessary for resolution of the question

before us, we identify the circumstances under which a California court may

properly enjoin an interactive service provider. A California court has such power

if it is wielded appropriately and in the right circumstances. Even in the context of

this case, Justice Liu’s opinion posits an injunction might be properly enforced

against an interactive service provider. (See dis. opn. of Liu, J., ante, at pp. 8-9.)

And as Justice Kruger explains, section 230 does not necessarily foreclose a state

court from specifically naming and enjoining an interactive service provider,

provided courts observe proper procedural safeguards. (Conc. opn., ante, at pp.

11-12, 14-16.)

We also contemplate a different situation in our analysis –– one specifically

raised by Yelp before the Court of Appeal and in its petition for review. Our

analysis addresses whether the injunction, issued against Ava Bird and directing

her to remove her defamatory posts from Yelp.com, may run to Yelp. We

conclude that, under proper conditions, it may. Although the trial court in this

case did not make sufficiently clear findings supporting the conclusion that Yelp

acted as an agent of or conspirator with Bird, or aided and abetted her,

circumstances may indeed arise where a nonparty interactive service provider is

found to have developed such a close entanglement of interests –– based on the

provider’s behavior before the injunction, and having received sufficient notice

and opportunity to participate in the litigation.

What this case does not implicate is the kind of situation where section 230

does confer immunity –– against a cause of action filed directly against the

platform, seeking to hold it liable for conduct as the publisher of third party

content. (Plur. opn., ante, at p. 14, citing Barrett v. Rosenthal (2006) 40 Cal.4th

33, 39 (Barrett).) Our view diverges from the plurality opinion’s conclusion that

section 230 protects an Internet platform from complying with a state court order

simply because the platform operates as the publisher of third party speech. We

find no reason to read section 230 as categorically protecting an interactive service

3

provider from responsibility to comply with a properly issued injunction from a

California court. Underlying our conclusion is what we take to be the most

sensible reading of the relevant statutory terms and structure, precedent and

persuasive case authority, and practical considerations grounded in the statutory

purpose as well as California law.

In pressing its argument to the contrary –– that courts effectively have no

power to affect what information an Internet platform posts –– Yelp raises a

variety of procedural and constitutional concerns. We take these concerns

seriously, because fair adjudication and due process protections depend on an

opportunity to be heard before a court for parties whose interests are at stake. But

after careful review and reflection on applicable California and federal law, we do

not believe Yelp offers a persuasive argument why the trial court is powerless to

order removal of posted information by an interactive service provider that aids

and abets the underlying violation. We also affirm a long-standing principle of

California law that permits an injunction to run to a nonparty, where it has aided,

abetted, or acted in concert with or support of the enjoined party to violate the

terms of the injunction. We disagree with the plurality opinion’s apparent

assertion that section 230 categorically preempts the power of California courts to

enforce injunctive remedies on nonparties because of their status as publishers.

(Plur. opn., ante, at p. 25.) What we conclude instead is that Yelp may not assert

blanket immunity under section 230, where no cause of action has been filed

against and no liability has been imposed upon it as the speaker or publisher of

third party content.

I.

Dawn L. Hassell and the Hassell Law Group (collectively, Hassell) filed

suit against their former client, Ava Bird, on April 10, 2013. They alleged that

Bird posted “factually inaccurate and defamatory remarks” about Hassell on

Yelp.com. Although Yelp was not named as a defendant in Hassell’s lawsuit,

4

Hassell sent copies of the complaint to Yelp via fax and e-mail on May 15, 2013.

In their prayer for relief, Hassell sought damages and injunctive relief prohibiting

Bird from continuing to defame Hassell as well as removal of every defamatory

review Bird published about Hassell from Yelp’s website and anywhere else on

the Internet.

Bird never filed an answer to Hassell’s complaint. She did, however, file a

request with the San Francisco Bar Association to mediate the lawsuit. Hassell

attempted to engage in mediation with Bird, but Bird was nonresponsive to the

assigned mediator’s scheduling requests. Hassell requested an entry for default

judgment on July 11, 2013, which included a declaration regarding Hassell’s

service on Bird. Hassell’s notice of hearing and application for default judgment

was filed on November 1, 2013, and the hearing was scheduled for January 14,

2014. Bird failed to appear at the hearing on Hassell’s application for default

judgment, and the superior court swore-in, examined, and accepted evidence from

Dawn Hassell.

The superior court granted Hassell a default judgment against Bird,

awarding over $550,000 in damages and an injunction requiring Bird to remove

the defamatory reviews about Hassell from Yelp.com and anywhere else they

appeared on the Internet. The default judgment entered in favor of Hassell on

January 14, 2014, stated: “Plaintiffs’ Request for Injunctive Relief is Granted.

Defendant AVA BIRD is ordered to remove each and every defamatory review

published or caused to be published by her about plaintiffs HASSELL LAW

GROUP and DAWN HASSELL from Yelp.com and from anywhere else they

appear on the internet within 5 business days of the date of the court’s order. [¶]

Defendant AVA BIRD, her agents, officers, employees, or representatives, or

anyone acting on her behalf, are further enjoined from publishing or causing to be

published any written reviews, commentary, or descriptions of DAWN HASSELL

5

or the HASSELL LAW GROUP on Yelp.com or any other internet location or

website. [¶] 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.” Hassell served Yelp’s general counsel and its national registered

agents with a copy of the judgment on January 15, 2014. Yelp’s director of

litigation responded by letter, asserting that Yelp would not comply with the

injunction. Yelp informed Hassell that it could not be bound by the injunction,

was immune from compliance with the order under section 230, and that Hassell

improperly served Bird and failed to sufficiently prove defamation.

More than four months later, Yelp inserted itself into this case by filing a

motion to vacate the superior court’s default judgment as to Bird. On August 27,

2014, Yelp received a hearing on its motion to vacate the judgment against Bird.

In its papers and at the hearing, Yelp argued that section 230 barred the injunction

and that it could not be bound by the injunction as an agent or aider and abettor to

Bird. The superior court found a factual basis to support Hassell’s contention that

Yelp aided and abetted Bird’s violation of the injunction and included no

discussion of section 230 in its order denying Yelp’s motion to vacate the

judgment against Bird. Yelp appealed.

The Court of Appeal held that the injunction could be enforced against

Yelp, and rejected Yelp’s argument that section 230 granted it immunity from any

responsibility to comply with the injunction. (Hassell v. Bird (2016) 247

Cal.App.4th 1336, 1356-1357, 1365 (Hassell).) Addressing Yelp’s challenge to

the injunction directing it to remove posts from its website, the Court of Appeal

held that under California law, an injunction can be applied to nonparties in

appropriate circumstances. (Id. at p. 1355, citing Ross v. Superior Court (1977) 19

Cal.3d 899 (Ross).) The court reasoned that these principles of California law

6

undermined Yelp’s theory that the trial court lacked authority to include in the

judgment against Bird a provision ordering Yelp to effectuate the injunction

against Bird by deleting her defamatory reviews. (Id. at p. 1356.) Yelp argued it

was insulated from any responsibility to comply with an injunction issued against

Bird, because the evidence did not establish that Yelp aided and abetted Bird’s

violation of the injunction. The court concluded that the specific aiding and

abetting issue taken up by the trial court in this case had no bearing on whether the

trial court, in principle, had authority to issue the injunction in the first place. (Id.

at p. 1357.) The court held that California law “establishes that a trial court has

the power to fashion an injunctive decree so that the enjoined party may not

nullify it by carrying out the prohibited acts with or through a nonparty to the

original proceeding.” (Ibid.)

Yelp petitioned this court for review. It asked us to resolve two related

issues: whether California law authorizes an injunction to extend to a nonparty

online publisher, and whether section 230 prevents a court from enjoining and

directing a website publisher to remove third party content from its website. We

granted Yelp’s petition for review.

II.

Time and again in the course of its extensive participation in this litigation,

Yelp urged the court to embrace a specific reading of section 230. That reading

would categorically shield Yelp from responsibility to comply with any

conceivable injunction issued by the superior court. Only by conjuring immunity

from a statute that does not provide it to advance a purpose putatively derived

from a statute that does not embrace it can Yelp expect its argument on this score

to persuade. We address Yelp’s contention that section 230 prohibits a California

court from crafting and effectuating an injunction that directs a website publisher

7

to take specific action, including a directive to remove from its website content

judicially deemed defamatory.

Yelp’s own interpretation of section 230 is essentially the one embraced by

the plurality opinion: that this provision works to immunize interactive service

providers that post third party information or derivative content from compliance

with state court orders that implicate their status as the publisher of third party

content. The terms of section 230 lend no support to this interpretation. Enacted

in 1996 as part of the Communications Decency Act, section 230 is entitled

“Protection for private blocking and screening of offensive material.” None of the

terms included in section 230 suggest an immunity trump card from state court

orders lurking in the statute’s midst. Section 230 describes certain protections and

obligations of interactive computer services, like Yelp. Section 230(a),

“Findings,” reflects that section 230 was adopted at a time of rapid development of

the Internet, and with Congress’s express recognition that Americans increasingly

rely on the Internet for political, educational, cultural, and entertainment purposes.

(§ 230(a).) The policy priorities described in section 230(b) demonstrate a

concern with addressing objectionable and offensive material available online. In

addition to policies encouraging the promotion, continued development, and

preservation of the competitive free market for the Internet, the statute specifically

enunciates policies to encourage the development of technologies that maximize

user control over information received through the Internet and to remove

disincentives for developing and utilizing blocking and filtering technologies to

limit children’s access to objectionable or inappropriate online content. (§

230(b).) None of the policies within section 230(b) state or suggest an express

immunity from compliance with state court orders.

The title of section 230(c) is “Protection for ‘Good Samaritan’ blocking and

screening of offensive material.” What section 230(c)(1) provides is this: “No

8

provider or user of an interactive computer service shall be treated as the publisher

or speaker of any information provided by another information content provider.”

Section 230(c)(2) explains that providers or users of interactive computer services

shall not be liable for actions taken in good faith to restrict access to obscene,

harassing, or objectionable material, regardless of whether such material is

constitutionally protected, or for efforts to make available technology that restricts

such material. (§ 230(c)(2)(A)-(B).) Section 230(c) does not endow Internet

platforms with a complete immunity from compliance with state court orders.

Rather, it enunciates protections where offensive material is voluntarily restricted,

blocked, or screened. Section 230(d) outlines the obligations of interactive service

providers to provide notification regarding parental control protections that assist a

customer in limiting minors’ access to harmful online material. (§ 230(d).) And

section 230(e) explains that section 230 has no effect on certain federal and state

laws. (§ 230(e).) Section 230(e)(3), which pertains to state and local laws, is

particularly relevant here. It states only: “Nothing in this section shall be

construed to prevent any State from enforcing any State law that is consistent with

this section. No cause of action may be brought and no liability may be imposed

under any State or local law that is inconsistent with this section.” (§ 230(e)(3).)

Because of the website it runs, Yelp is one of the entities functioning as a

provider of interactive computer service. Such entities have both certain

protections and responsibilities under the statute. (§ 230(d), (f)(2); see also Fair

Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008)

521 F.3d 1157, 1162, fn. 6 (Roommates.com) [“Today, the most common

interactive services are websites”].) And Bird, the creator of information posted

on Yelp.com, is an “information content provider” as a person “responsible, in

whole or in part, for the creation or development of information” provided through

the Internet or a website like Yelp. (§ 230(f)(3).) Hassell, the victims of

9

defamation, filed their claim only against Bird — the originator of the defamatory

speech — and not against Yelp, an interactive service provider. No cause of

action or claim was ever filed against Yelp as an interactive service provider. (See

§ 230(e)(3).) Rather, Yelp’s participation in this case was at its own demand,

through a motion to invalidate Hassell’s default judgment against Bird. The

question is whether Yelp may assert section 230 immunity where the only cause of

action relevant to this case was brought against Bird directly and no legal claim or

liability is levied against Yelp.

By its terms, section 230 conspicuously avoids conferring complete

immunity from all legal proceedings. Its language expressly permits the

enforcement of certain federal criminal laws as well as state laws consistent with

the section. (§ 230(e).) In the context of state law, the section 230 only prohibits

causes of action from being brought and liability from being imposed under state

laws that are inconsistent with the section. (§ 230(e)(3).) From the statute’s

terms, an inconsistent state law is one in conflict with the terms in section 230(c).

An inconsistent state law under section 230(c)(1) is a state law cause of action or

liability that treats an interactive computer service as the publisher or speaker of

information provided by another information content provider. And an

inconsistent state law under section 230(c)(2) is a state law cause of action that

seeks to hold an interactive service provider liable for voluntary actions taken in

good faith to restrict access to obscene, lewd, harassing, or otherwise

objectionable material. If section 230 conferred complete immunity on an

interactive service provider, as the plurality opinion implies, then lurking

somewhere in the statute one would need to find an enormously consequential

codicil of categorical absolution written in invisible ink to preempt the statute’s

more nuanced scheme.

10

There’s no such codicil. Nor does Yelp even face “liability” here at all.

(See § 230(e)(3).) The plurality opinion treats compliance with the court order

pertaining to Bird’s defamatory speech as a kind of liability against Yelp, arguing

that liability is a broad legal term. (Plur. opn., ante, at pp. 26-27, citing Black’s

Law Dict. (6th ed. 1990) p. 914 (Black’s 6th ed.).) But we define liability under

section 230 as the term of art that it is in our legal system –– meaning a financial

or legal obligation, such as a duty of care under tort law, the breach of which gives

rise to a tort lawsuit –– that treats a service provider or user as the publisher or

speaker of third party content. We find support for this interpretation in the

commonly understood definition of “liability.” (See Webster’s 9th New

Collegiate Dict. (1989) p. 687 [defining liability as “something for which one is

liable; esp, pl : pecuniary obligations : DEBTS”]; see also Black’s Law Dict. (10th

ed. 2014) p. 1053 [defining “liability” as “being legally obligated or accountable”

or a “financial or pecuniary obligation in a specified amount.”].) As the plurality

opinion readily acknowledges, “liability” was understood at the time the statute

was enacted to include the imposition of damages. Indeed, it was defined at the

time “to mean: all character of debts and obligations.” (Black’s 6th ed., supra, at

p. 914.)

So liability in this context is best understood as a type of financial

obligation, such as the responsibility to pay damages arising from a successfully-

litigated tort suit. This conclusion is bolstered by our own decisions, together with

cases from other jurisdictions and the history of the statute at issue that liability in

this context is essentially a type of financial obligation. (Id. at p. 1055 [defining

“tortious liability” as “redressable by an action for compensatory, unliquidated

damages” and in some cases “by extracompensatory or punitive damages”].) As

the plurality opinion acknowledges, in Barrett, this court explained that “Congress

intended to create a blanket immunity from tort liability for online republication of

11

third party content” (Barrett, supra, 40 Cal.4th at p. 57) and was specifically

concerned with compelling regulation of service providers “at the sword point of

tort liability” (id. at p. 53). We specifically cited subsequent legislative history

affirming that Congress’s purpose was to protect providers from liability for tort

claims. (Id. at p. 54, citing H.R.Rep. 107-449, 2d Sess., p. 5 (2002) [“The courts

have correctly interpreted section 230(c), which was aimed at protecting against

liability for such claims as negligence”].) One of the first cases to interpret section

230, Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran),

explained that “Congress recognized the threat that tort-based lawsuits pose” and

the purpose of the statutory immunity was to prohibit the “imposition of tort

liability on service providers” in a burgeoning Internet. Zeran, on which the

plurality opinion relies, expressed that section 230 was enacted to prevent the

imposition of “tort liability on service providers for the communication of others.”

(Zeran, at p. 330.) This focus on tort liability suggests that Congress understood

“liability” to mean tort liability, and supports our definition of liability as a

financial obligation, like damages.

The federal courts of appeals have also readily acknowledged Congress’s

concern with preventing tort liability against Internet platforms for third party

speech. (See Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12,

23 [explaining that in enacting section 230, Congress chose to prohibit “ ‘tort

liability on companies that serve as intermediaries for other parties’ potentially

injurious messages’ ”]; see also Doe v. Internet Brands (9th Cir. 2016) 824 F.3d

846, 852 [reasoning that section 230 is concerned with “ ‘the imposition of tort

liability on companies that do not create potentially harmful messages’ ” but are

merely intermediaries].) The injunction issued by the superior court does not

demand any financial obligation of Yelp. The underlying judgment and award of

damages pertains only to Bird and no damages or financial obligation are sought

12

from Yelp. The only possible financial obligation Yelp might face would result

from contempt proceedings and no such proceedings have occurred here.

All of which underscores why it is a contrast between apples and oranges

— or apples and Oreos, for that matter –– to compare a defendant’s explicit

targeting by a civil lawsuit with a person or entity’s remedial responsibility to

avoid helping others engage in prohibited conduct. A defendant to a state law

cause of action may be subject to an adverse judgment triggering a responsibility

to provide monetary or equitable relief to the plaintiff, and may incur litigation

expenses to defend itself. In contrast, an entity that has not been sued is required

only to refrain from engaging in prohibited actions. Yelp has not been sued, and

its only responsibility in light of the judgment and injunction against Bird is to

avoid violating that court order. Section 230 does not extend protection to a

provider or user who violates an injunction by instead promoting third party

speech that has been deemed unlawful by a California court. Yelp has an

obligation not to violate or assist in circumventing the injunction against Bird, but

that does not impose a legal obligation upon Yelp that treats it as a publisher or

speaker of third party content. As we explained in Barrett, interactive service

providers and users are exempt under section 230 “from defamation liability for

republication.” (Barrett, supra, 40 Cal.4th at p. 63.) We enunciated our concern

that “subjecting Internet service providers and users to defamation liability would

tend to chill online speech” as central to our holding that users and providers may

not be sued directly and held liable for distributing defamatory speech. (Id. at p.

56.) But we did not interpret section 230 to expand its protections to a provider

that acts in concert with another party to violate a court order or engage in

prohibited acts. That sort of interaction would eliminate the “publisher” immunity

contemplated in section 230(c)(1) and (e)(3). (See Barrett, at p. 63 (conc. opn. of

Moreno, J.) [reasoning that publishers who conspire with original content

13

providers “would not be covered by the immunity provided by. . . section

230(c)(1) and (e)(3)”].)

The plurality opinion belittles the state court injunction here as the result of

a “tactical decision.” The plurality implies the injunction is part and parcel of a

nefarious “litigation strategy” advanced by Hassell solely to circumvent section

230. (Plur. opn., ante, at p. 22.) Using this lens, the plurality elides the distinction

between causes of action filed directly against interactive service providers that

seek injunctive relief and state court orders that contain injunctions. The few

cases addressing injunctive relief did not extend section 230 immunity to a

provider or user seeking to evade compliance with an injunction. Rather, those

cases barred causes of action filed directly against the provider or user where the

claims sought injunctive relief as a remedy. (See Kathleen R. v. City of Livermore

(2001) 87 Cal.App.4th 684, 698 (Kathleen R.) [reasoning that “even if for

purposes of section 230 ‘liability’ means only an award of damages [citation], the

statute by its terms also precludes other causes of action for other forms of relief”

such as taxpayer actions and claims for declaratory and injunctive relief filed

directly against a provider or user]; see also Medytox Solutions, Inc. v.

Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So.3d 727, 731 (Medytox)

[concluding that section 230 “encompasses the claims for declaratory relief and

injunctive relief” filed directly against the interactive service provider].) These

cases lend no support to the plurality opinion’s assertion that a provider or user

may invoke section 230 immunity to avoid compliance with an injunction, where

no cause of action or claim has been filed. All of this makes it difficult at best to

conclude that section 230’s statutory terms somehow imply an unbounded

immunity to a service provider, where no cause of action is lodged against it and

no liability, meaning a financial or legal obligation that treats Yelp as the publisher

of third party content, is sought.

14

Given the plurality opinion’s embrace of an approach to section 230 that is

not compelled or even much supported by the statutory terms, it is unsurprising

that it is also an interpretation that does not follow from our precedent. And to the

extent the plurality opinion concludes that section 230 operates as a blanket

immunity for interactive service providers to disregard California court orders, it

fails to garner support from a majority of the court. Just once before did this court

consider section 230, in Barrett. What our opinion in that case addressed is only

whether the federal statute grants the distributor of allegedly defamatory material

immunity from a defamation lawsuit. (Barrett, supra, 40 Cal.4th at p. 39 [“We

granted review to decide whether section 230 confers immunity on ‘distributors’

”].) Our holding was limited to an interpretation of section 230 that “does not

permit Internet service providers or users to be sued as ‘distributors,’ nor does it

expose ‘active users’ to liability.” (Barrett, at p. 63.) Barrett did not squarely

consider whether an interactive service provider may avoid compliance with a

properly issued state court order. We cannot rely solely upon it or any other

precedent to resolve this case, but it remains instructive as we analyze, more

broadly, the statute’s breadth and limitations.

To reach our limited holding in Barrett, we weighed the meaning of section

230(c)(1) and (e)(3) together. We explained that “[t]hese provisions have been

widely and consistently interpreted to confer broad immunity against defamation

liability for those who use the Internet to publish information that originated from

another source.” (Barrett, supra, 40 Cal.4th at p. 39.) Our reasoning in Barrett is

consistent with the view that interactive service providers may invoke section 230

immunity to protect themselves from certain causes of action or liabilities, such as

those seeking defamation liability based on the provider’s publication or

distribution of defamatory speech. (Barrett, at p. 63 [“section 230 exempts

Internet intermediaries from defamation liability for republication”].) A plaintiff

15

might file a state law defamation cause of action against an interactive service

provider –– one treating the provider “as the publisher or speaker” of “information

provided by another information content provider,” as described in section

230(c)(1). Under section 230(e)(3), a provider may escape that cause of action or

avoid the liability sought in the plaintiff’s claim. Barrett instructs that a

defamation claim filed against Yelp for acting as the “distributor” of Bird’s speech

would be barred by section 230. But no such claim was filed against Yelp in this

case.

Barrett clarified that a plaintiff aggrieved by defamatory speech must file

its cause of action against the original speaker. We instructed that the proper

procedure to address defamation in Internet publications is for plaintiffs “to pursue

the originator of a defamatory Internet publication” and observed that “further

expansion of liability must await congressional action.” (Barrett, supra, 40 Cal.

4th at p. 63.) Hassell followed the procedure described in our prior opinion by

filing their claims against Bird, the originator of the defamatory statements. In

line with our directive, Hassell did not bring a cause of action for liability against

Yelp. Hassell’s lawsuit against Bird, the information content provider, fits with

section 230’s terms and our prior opinion.

In Barrett we found section 230 immunity protected an interactive

computer service user sued directly for defamation liability. We held only that

“by its terms section 230 exempts Internet intermediaries from defamation liability

for republication.” (Barrett, supra, 40 Cal.4th at p. 63.) Barrett specifically

contemplated a state law tort claim filed against an interactive computer service

user, which we deemed was inconsistent with section 230 because the defamation

claim against the user sought to hold the user liable for defamatory speech

authored by a third party. Whatever else is true of Barrett, it does not compel a

finding that Yelp may invoke section 230 immunity where it is not the subject of a

16

state law tort claim and where no liability is sought from Yelp for third party

speech. The immunity that Yelp desires is conferred only when a state law claim

is brought or a liability

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