No.

18-506

IN THE

DAWN HASSELL and HASSELL LAW GROUP,

P.C.,
Petitioners,

v.

YELP, INC.,
Respondent.

On Petition for Writ of Certiorari to the

California Supreme Court

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

THOMAS R. BURKE AARON SCHUR

Counsel of Record YELP INC.
ROCHELLE L. WILCOX 140 New Montgomery St.
DAVIS WRIGHT TREMAINE LLP San Francisco, CA 94105
505 Montgomery Street, Suite 800 (415) 908-3801
San Francisco, CA 94111-6533
(415) 276-6500
[email protected]
[email protected]

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

 i
QUESTION PRESENTED

The California Supreme Court followed

uniform federal and state law in holding that
47 U.S.C. § 230(c)(1) (“Section 230”) bars injunctive
relief, along with other forms of liability, against
Internet publishers of third-party speech. The court
rejected Petitioners’ procedural maneuvering—their
attempt to obtain injunctive relief against Yelp Inc.
without naming Yelp as a party in litigation or giving
Yelp notice—finding that Section 230’s plain
language prohibits Petitioners from obtaining any
relief against Yelp based on its publication of third-
party content on its website, Yelp.com. In doing so,
the court found support in Congress’s 2018
amendments to Section 230, which created a narrow
exception in a single, discrete area (not relevant here),
but otherwise reaffirmed its broad reach.
The question presented by the Petition is:

Should this Court accept review to hold,

for the first time by any court in the
Nation, that Section 230(c)(1) does not
preclude claims for injunctive relief,
thereby creating a clear path for
plaintiffs to circumvent Section 230 and
subvert the broad immunity intended by
Congress?
 ii
TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii
I. INTRODUCTION ............................................ 1
II. STATEMENT OF THE CASE ........................ 2
A. Factual Background. ............................ 2
B. Procedural History. .............................. 3
III. REASONS FOR DENYING THE WRIT ...... 11
A. Uniform Federal and State Law
Supports the California Supreme
Court’s Decision. ................................. 11
1. Federal and State Courts
Consistently Hold that
Section 230 Broadly Protects
Internet Publishers. ................. 12
2. Federal and State Courts
Consistently Hold that
Section 230(c)(1) Prevents
Injunctive Relief. ...................... 15
B. There Is No Circuit Split
On this Issue. ...................................... 19
C. Congress Has Consistently
Approved Section 230’s Broad
Reach, with Narrow Exceptions as
It Deems Appropriate. ........................ 21
IV. CONCLUSION .............................................. 27
 iii
TABLE OF AUTHORITIES

Page(s)

Cases

Almeida v. Amazon.com, Inc.,

456 F.3d 1316 (11th Cir. 2006)............................14

Barrett v. Rosenthal,
40 Cal. 4th 33 (2006)................................ 13, 22, 25

Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003)........................14, 15

Ben Ezra, Weinstein, & Co.

v. America Online Inc.,
206 F.3d 980 (10th Cir. 2000).................. 14, 16, 22

Carafano v. Metrosplash.com Inc.,

339 F.3d 1119 (9th Cir. 2003)........................12, 14

Chicago Lawyers’ Comm. for

Civil Rights Under Law, Inc.
v. Craigslist, Inc.,
519 F.3d 666 (7th Cir. 2008)................................14

Dart v. Craigslist, Inc.,

665 F. Supp. 2d 961 (N.D. Ill. 2009)....................16

Doe v. America Online,

783 So.2d 1010 (Fla. 2001) ..................................22

Doe v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016) ..................................14
 iv
Doe v. MySpace, Inc.,
528 F.3d 413 (5th Cir. 2008)................................14

Edwards v. District of Columbia,

755 F.3d 996 (D.C. Cir. 2014) ..............................25

General Steel Domestic Sales, L.L.C.

v. Chumley,
840 F.3d 1178 (10th Cir. 2016)............................21

Giordano v. Romeo,
76 So.3d 1100 (Fla. Dist. Ct. App.
2011) .....................................................................16

Green v. America Online, Inc.,

318 F.3d 465 (3d Cir. 2003) .................................14

Hinton v. Amazon.com.dedc, LLC,

72 F. Supp. 3d 685 (S.D. Miss. 2014) ..................16

Johnson v. Arden,
614 F.3d 785 (8th Cir. 2010)................................14

Jones v. Dirty World Entm’t

Recordings, LLC,
755 F.3d 398 (6th Cir. 2014)................................14

Kathleen R. v. City of Livermore,

87 Cal. App. 4th 684 (2001) ............... 10, 17, 19, 20

Kimzey v. Yelp! Inc.,

836 F.3d 1263 (9th Cir. 2016)................................8

Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir. 2014) ............................15
 v
Mainstream Loudoun v.
Board of Trustees of Loudoun,
2 F. Supp. 2d 783 (E.D. Va. 1998) .................19, 20

Medytox Solutions, Inc. v.

Investorshub.com, Inc.,
152 So.3d 727 (Fla. Dist. Ct. App.
2014) .....................................................................17

Nebraska Press Ass’n v. Stuart,

427 U.S. 539 (1976) ..............................................16

Nemet Chevrolet, Ltd. v.

Consumeraffairs.Com, Inc.,
591 F.3d 250 (4th Cir. 2009)................................15

Noah v. AOL Time Warner,

261 F. Supp. 2d 532 (E.D. Va. 2003),
aff’d 2004 WL 602711 (4th Cir. Mar.
24, 2004) .........................................................16, 18

Packingham v. North Carolina,

137 S. Ct. 1730 (2017)..........................................12

Reit v. Yelp!,
907 N.Y.S.2d 411 (N.Y. Supr. 2010) ....................17

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) ..............................................11

Ricci v. Teamsters Union Local 456,

781 F.3d 25 (2d Cir. 2015) ...................................14

Shiamili v. Real Estate Group,

17 N.Y.3d 281 (2011) ...........................................16
 vi
Smith v. Intercosmos Media Group,
2002 U.S. Dist. LEXIS 24251, 2002
WL 31844907 (E.D. La. 2002) .............................16

Universal Commc’n Sys., Inc.

v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007) ................................14

Zeran v. America Online, Inc.,

129 F.3d 327 (4th Cir. 1997).................... 14, 15, 22

Statutes

28 U.S.C. § 4101 ........................................................22

47 U.S.C. § 230 .................................................. passim

47 U.S.C. § 230(a)(4) .................................................13

47 U.S.C. § 230(b)(2) ...........................................12, 13

47 U.S.C. § 230(b)(3) .................................................12

47 U.S.C. § 230(c) ................................................14, 22

47 U.S.C. § 230(c)(1).......................................... passim

47 U.S.C. § 230(c)(2)............................................19, 20

47 U.S.C. §230(e)(3) .......................................... passim

Pub. L. No. 115-164, § 4 (April 11, 2018)

132 Stat. 1253 ......................................................23
 vii
Other Authorities

Liability, Black’s Law Dictionary

(10th ed. 2014) .....................................................15

Sen. Rep. No. 111 2d Sess. (2010) ............................22

 1
I. INTRODUCTION

The California Supreme Court followed

uniform federal and state law in holding that Section
230 of the Communications Decency Act, 47 U.S.C.
§ 230, bars injunctive relief against Internet
publishers such as Yelp Inc., which publishes the
popular consumer review website Yelp.com, for their
role in publishing third-party speech. Its decision
flowed from the plain language of Section 230
mandating broad protection for Internet publishers;
the more than 300 cases that consistently have
applied that plain language to prevent plaintiffs from
obtaining any form of relief (including at least nine
cases explicitly holding that Section 230 bars
injunctive relief); and Congress’s repeated
affirmation that federal and state courts correctly
have discerned Congress’s intent by broadly
interpreting the statute. Congress’s amendment of
Section 230 this last summer—to narrow the statute
in a single respect, but otherwise leave its broad
protection intact—is the most recent example of this
clear congressional intent.

In the face of this overwhelming weight of

authority, Petitioners’ nationwide search has
revealed only two cases that they can even argue are
contrary to the California Supreme Court’s decision.
Pet. 16-17. Neither is. The single district court
decision Petitioners cite was issued twenty years ago
and merely stated in dicta, without any analysis, that
a different subsection of Section 230 (not at issue
here) did not bar injunctive relief. That case offers
only an exceedingly slender reed on which to rest
Petitioners’ claims. The only circuit court decision
 2
Petitioners cite addresses the collateral order
doctrine, and simply holds that orders denying relief
under Section 230 are not immediately appealable. It
says nothing about Section 230’s applicability to
claims for injunctive relief and provides no reed at all
on which to rest Petitioners’ claims. Neither decision
conflicts with the California court’s decision.

As Petitioners’ inability to cite a single case

supporting their Petition demonstrates, there is no
conflict whatsoever among the circuits. The cases
they cite are irrelevant and do not address the
question they pose—whether Section 230(c)(1) bars
injunctive relief targeting online publishers of third-
party speech (as opposed to the original speakers
themselves, who receive no protection from Section
230). Given this, if this Court has any reason to
resolve the question presented, that resolution should
await further development in the lower courts.
Certiorari should be denied.

II. STATEMENT OF THE CASE

A. Factual Background.

Yelp allows any member of the public to read

and write online reviews about local businesses,
government services, and other entities. A00240.
Yelp is available to the public at no charge and
without any registration requirement. Id. Those who
register by creating an account may write reviews
about businesses and service providers, and thus
contribute to a growing body of tens of millions of
publicly-available consumer reviews. Id. Tens of
millions of other users read the reviews on Yelp when
 3
making a wide range of consumer and other decisions.
Id. The businesses listed on Yelp also can create free
accounts, which allow them to publicly respond to any
review, with such a response appearing next to the
original review. Id. Individuals posting reviews on
Yelp can remove them at any time. A00841. As Yelp’s
website explains, it applies automated software to all
reviews posted in an attempt to provide the most
helpful reviews to consumers. A00519.

Hassell, a San Francisco attorney, owns The

Hassell Law Group, P.C. (collectively, “Petitioners”).
A00006. According to Petitioners’ Complaint,
Defendant Bird suffered a personal injury on June 16,
2012, and retained The Hassell Law Group. A00002-
3. After a few months, Petitioners ended the
attorney-client relationship. Id. On January 28, 2013
a user with the screen name “Birdzeye B.” posted a
one-star review of The Hassell Law Group on Yelp,
complaining that “dawn hassell made a bad situation
much worse for me” and accusing Petitioners of failing
to communicate with her and abandoning her as a
client, among other things. A00018. Believing that
“Birdzeye B.” was Bird, Petitioners sent Bird an email
that day, requesting she remove the “factual
inaccuracies and defamatory remarks” from Yelp.
A00005. Bird replied the next day, complaining about
Petitioners’ representation. A00348.

B. Procedural History.

1. On April 10, 2013, Dawn Hassell

individually, and the Hassell Law Group P.C., filed a
complaint against Bird, but not Yelp, in San
Francisco Superior Court. A00002. The suit asserted
 4
claims based on two allegedly defamatory reviews—
one by Birdzeye B. and another by a reviewer
identified as J.D. (A00004-5)—and sought
compensatory and punitive damages. It also sought
injunctive relief against Bird only. A00013. Although
the Birdzeye B. public account profile stated that its
creator lived in Los Angeles (A00091), Bird was
served through substitute service on the owner of the
Oakland home in which Bird was injured, who told
the process server that he had not seen Bird in
months. A00026. On July 11, 2013, the court entered
a default against Bird. A00023. 1

On November 1, 2013, Petitioners filed a

Summary of the Case in Support of Default Judgment
and Request for Injunctive Relief. A00033-36. They
significantly expanded the relief being sought as
described in the Complaint, adding another allegedly
defamatory statement to their claim (A00036,
A00102) and demanding for the first time that the
court

make an order compelling Defendant

and Yelp to remove the defamatory

1 Many of the factual assertions in the Petition for

Review are untrue or exaggerated. Pet. 2. For example, Bird
did not post “a series of negative reviews” before being sued. Id.
She posted one review before the complaint was filed and
Petitioners claimed without any evidence that Bird also had
posted a review under a different user name. Pet. 57a-60a, 64a.
Bird posted another review as an update after Petitioners sued
her. Pet. 60a-61a. Petitioners also ignore the flawed service of
process and the fact that they made no effort to enforce the
judgment directly against Bird, and therefore have no idea if
enforcement remedies available to them under California law
would have been effective. Pet. 60a, 98a.
 5
statements, including all entire posts,
immediately. If for any reason
Defendant does not remove them all by
the Court-ordered deadline (which is
likely given Defendant’s refusal to
answer the complaint), the Court should
order Yelp.com to remove all 3 of them.

A00051 (emphasis in original).

Petitioners’ Request for Judgment went

further, seeking “an Order ordering Yelp.com to
remove the reviews and subsequent comments of the
reviewer within 7 business days of the date of the
court’s Order.” A00051 (emphasis added). For
several months, Petitioners did not serve their
application for default judgment on Yelp or otherwise
notify Yelp about it. A00243; see also A00837. The
court granted the requested injunction, including the
part ordering non-party Yelp to remove the existing
comments and any “subsequent” comments posted by
“Birdzeye B.” or “J.D.” A00213. The court made no
factual findings as to Yelp. Id.

After an exchange of correspondence between

Petitioners and Yelp in which Yelp explained, among
other things, that Section 230(c)(1) and (e)(3) barred
Plaintiff’s attempts to enforce the injunction against
it (A00537-551), on May 23, 2014, Yelp moved to
vacate the Judgment based in part on the “expansive
immunity” provided by Section 230 (A00235; see
A00225-470), which Petitioners opposed (A00471-
572). On September 29, 2014, the trial court denied
Yelp’s Motion. A00808. It held that injunctions may
run to non-parties who are aiding and abetting an
 6
enjoined person to violate an injunction and
concluded that Yelp fit within this narrow exception
to general due process requirements. A00808-809. It
implicitly rejected Yelp’s claim to immunity under
Section 230, not even referencing it in its order. Id.

2. In a published decision, the court of

appeal affirmed the trial court’s conclusion that Yelp
was bound by the prior restraint. Pet. 6a. Among
other things, the court of appeal held that Section 230
did not protect Yelp from Petitioners’ injunction. Pet.
39a-51a. Its decision turned largely on the fact that
Petitioners tactically chose not to sue Yelp, or even
give it advance notice of their claims, which the court
found “distinguish[ed] the present case from Yelp’s
authority, all cases in which causes of action or
lawsuits against internet service providers were
dismissed pursuant to section 230.” Pet. 47a
(citations omitted); see also id. 49a-51a. The court
reasoned that “[i]f an injunction is itself a form of
liability, that liability was imposed on Bird, not Yelp.”
Id. 50a-51a. The court rejected each of Yelp’s
arguments. Id. 48a-51a.

3. The California Supreme Court granted

Yelp’s Petition for Review and reversed the decisions
of the trial court and court of appeal. As relevant
here, that court recognized the broad reach of Section
230, explaining that “[t]he 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.’” Pet. 73a (citations omitted); see generally
Pet. 73a-82a (discussing cases). The court then
 7
turned to the language of the statute to glean the
legislative intent. Pet. 82a.

The court found that Section 230 plainly

applied to Petitioners’ claims, and “[h]ad 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” within the scope
of Section 230. Pet. 83a (citations omitted). The court
explained that “[t]his immunity, moreover, would
have shielded Yelp from the injunctive relief that
plaintiffs seek.” Id. (citations omitted). Petitioners do
not dispute this reasoning, or the court’s holdings on
these points.

The California Supreme Court then enunciated

the question at the heart of this case—“whether a
different result should obtain because plaintiffs made
the tactical decision not to name Yelp as a defendant.”
Pet. 84a. In other words, does a plaintiff’s “litigation
strategy allow[] them to accomplish indirectly what
Congress has clearly forbidden them to achieve
directly”? Id. The court answered with a resounding
“no.” Regardless of the procedural posture, by
entering injunctive relief against Yelp, the lower
courts were treating Yelp “as ‘the publisher or
speaker of ... information provided by another
information content provider,’” which Section 230
prohibited. Id. (citing 47 U.S.C. § 230(c)(1).) Pet. 84a
(citations omitted).

Noting that “‘courts have rebuffed attempts to

avoid section 230 through the “creative pleading” of
 8
barred claims,’” the court explained that “we are not
persuaded by plaintiffs’ description of the situation
before the court.” Id. (citing Kimzey v. Yelp! Inc., 836
F.3d 1263, 1266 (9th Cir. 2016)). The court recognized
that California law has held non-parties to be bound
by injunctions in limited circumstances, but held that

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).

Pet. 86a (citation omitted). Because, at bottom, “Yelp

is being held to account for nothing more than its
ongoing decision to publish the challenged reviews”
(Pet. 87a), the court found that Section 230 plainly
applies. 2

The court rejected Petitioners’ narrow

definition of the “liability” barred by Section 230—
effectively, civil liability for damages—explaining
that “[t]his argument reads constraining force into
the language within section 230(e)(3)” that does not

2 In doing so, the court asserted that Yelp was

“immunized from suit.” Id. The Petition seizes on this language
to claim a circuit split. E.g., Pet. 16-17. As explained below,
Petitioners play with words, confusing two very different kinds
of immunity. Section III.B, infra.
 9
exist. As the court explained, “[t]his phrasing does
not provide strong support for, much less compel,
plaintiffs’ construction,” and “in common legal
parlance at the time of section 230’s enactment,
‘liability’ could encompass more than merely the
imposition of damages.” Pet. 90a (citing Black’s Law
Dict. (6th ed. 1990) p. 914). Thus, “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.’” Pet. 91a (citations omitted).

The court concluded that Section 230’s

“inclusive language … 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 demands that treat them as a publisher,
which Congress believed “would facilitate the ongoing
development of the Internet.” Pet. 91a-92a (citations
omitted). Because “[t]hese interests are squarely
implicated in this case”—“[a]n injunction like the
removal order plaintiffs obtained can impose
substantial burdens on an Internet intermediary”—
the court held that Section 230 prevented application
of the injunction to Yelp. Pet. 92a.

Finally, the court noted the strong public policy

reasons supporting its decision. Recognizing “that
plaintiffs’ position, if accepted, would open the door to
fraud and to sharp litigating tactics,” the court
explained that “[t]here are numerous reasons why a
removal order that appears facially valid may
 10
nevertheless be challenged by an Internet
intermediary as illegitimate.” Pet. 93a n.24. Noting
the skewed incentives that would result from the
dissent’s approach—which would have granted courts
free reign to issue injunctions against Internet
intermediaries without any advance notice—the court
explained the practical implications of permitting
such an easy workaround to Section 230 liability. Pet.
93a-94a & n.25. It elaborated:

As evinced by the injunction sought in

[Kathleen R. v. City of Livermore, 87 Cal.
App. 4th 684 (2001)], 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.

Pet. 96a-97a. Pointing out that Petitioners “still have

powerful, if uninvoked, remedies available to them”
against Bird, the court rejected Petitioners’
 11
arguments and reversed the decisions of the lower
courts. Pet. 98a-99a. 3

III. REASONS FOR DENYING THE WRIT

A. Uniform Federal and State Law

Supports the California Supreme
Court’s Decision.

The Internet has effected one of the greatest

expansions of free speech and communications in
history. As this Court put it, “the content on the
Internet is as diverse as human thought.” Reno v.
American Civil Liberties Union, 521 U.S. 844, 852
(1997) (citation omitted).

This is no accident. In 1996, to promote the

free flow of information on the Internet, Congress
resolved to protect websites and other online
providers from liability for their users’ content.
Section 230 embodies that command, prohibiting
courts from treating such a provider as the “publisher
or speaker” of third-party content. 47 U.S.C.
§ 230(c)(1). Grounded in core First Amendment
principles, Section 230 offers extraordinary protection
for innovation and expansion of free speech on the
Internet.

3 The court’s analysis of Section 230 commanded the

concurrence of a majority of the court. Three Justices fully
joined the lead opinion (Pet. 99a); a fourth Justice agreed that
Section 230 bars Petitioners’ attempt to enjoin Yelp’s speech but
wrote separately to argue that the case should have been decided
on another ground (Pet. 100a).
 12
1. Federal and State Courts
Consistently Hold that Section
230 Broadly Protects Internet
Publishers.

Section 230 was adopted 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,”
and to “encourage the development of technologies
which maximize user control over what information is
received by individuals, families, and schools who use
the Internet.” 47 U.S.C. §§ 230(b)(2), (3). Congress’s
goals were achieved. The Internet has become an
indispensable open forum for third-party speech, as
this Court recently affirmed in Packingham v. North
Carolina, 137 S. Ct. 1730, 1735-36 (2017).

a. To achieve these and other goals,

Congress barred any claims against Internet
publishers based on the publication of third-party
content—i.e., content not created by the website
operator itself, but contributed by an array of authors,
photographers, and others that provide a diversity of
expression that extends far beyond the resources of
any one single online publisher. Section 230 sets forth
a straightforward principle: If someone authors
injurious content, a plaintiff can pursue the author of
that content, but not the entity that displays it on the
Internet. See 47 U.S.C. § 230(c)(1); see generally
Carafano v. Metrosplash.com Inc., 339 F.3d 1119,
1124 (9th Cir. 2003) (“Carafano”) (protecting website
where “the selection of the content was left
exclusively to the user”).
 13
As the California Supreme Court previously
explained—and courts consistently have held—
Section 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.” Barrett v. Rosenthal, 40 Cal.
4th 33, 43-44 (2006) (citing Zeran v. America Online,
Inc., 129 F.3d 327, 330 (4th Cir. 1997) (“Zeran”)). The
court invoked “the congressional finding that the
Internet has flourished ‘with a minimum of
government regulation’ (§ 230(a)(4)), and the policy
statement favoring a free market for interactive
computer services ‘unfettered by Federal or State
regulation’ (§ 230(b)(2))” to support its decision
rejecting liability there. Id. at 44 (citing Zeran, 129
F.3d at 330-331; emphasis added). The court
reiterated that “Congress ‘made a policy choice ... not
to deter harmful online speech [by] imposing tort
liability on companies that serve as intermediaries for
other parties’ potentially injurious messages.’” Id.

b. To accomplish its broad goals, Section

230 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,” and it
separately preempts any state law, including
imposition of tort liability, that is inconsistent with
its protections. 47 U.S.C. §§ 230(c)(1) & (e)(3). Courts
reviewing Section 230’s legislative history have found
that it has two primary goals.
 14
First, “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.” Zeran,
129 F.3d at 331.

Second, Congress designed Section 230 to

“encourage service providers to self-regulate the
dissemination of offensive material over their
services…. In line with this purpose, § 230 forbids the
imposition of publisher liability on a service provider
for the exercise of its editorial and self-regulatory
functions.” Id. (emphasis added); accord Carafano,
339 F.3d at 1122-23; Batzel v. Smith, 333 F.3d 1018,
1027-28 (9th Cir. 2003) (“Batzel”).

To further these two complimentary policy

goals, “courts have treated § 230(c) immunity as quite
robust,” Carafano, 339 F.3d at 1123, and federal
courts consistently have rejected attempts to hold
defendants responsible for third-party content posted
on their websites. 4 In each of these decisions, the

4 See, e.g., Doe v. Backpage.com, LLC, 817 F.3d 12, 22

(1st Cir. 2016); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478
F.3d 413, 419 (1st Cir. 2007); Ricci v. Teamsters Union Local
456, 781 F.3d 25, 28 (2d Cir. 2015); Green v. America Online,
Inc., 318 F.3d 465, 470-72 (3d Cir. 2003); Zeran, 129 F.3d at 330-
32; Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Jones
v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398, 408 (6th
Cir. 2014); Chicago Lawyers’ Comm. for Civil Rights Under Law,
Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008); Johnson
v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); Carafano, 339 F.3d
at 1125; Batzel, 333 F.3d at 1031-32; Ben Ezra, Weinstein, & Co.
v. America Online Inc., 206 F.3d 980, 984-86 (10th Cir. 2000)
(“Ben Ezra”); Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321
 15
appellate court properly focused on the author of the
content—rather than the publisher or distributor—no
matter how offensive or objectionable the content
might be. This is because “Congress made a policy
choice … not to deter harmful online speech through
the separate route of imposing tort liability on
companies that serve as intermediaries for other
parties’ potentially injurious messages.” Zeran, 129
F.3d at 330; see also Nemet Chevrolet, Ltd. v.
Consumeraffairs.Com, Inc., 591 F.3d 250, 254-255
(4th Cir. 2009) (Section 230 “immunity protects
websites not only from ultimate liability, but also
from having to fight costly and protracted legal
battles” (citations, internal quotes omitted)); accord
Batzel, 333 F.3d at 1031.

2. Federal and State Courts

Consistently Hold that Section
230(c)(1) Prevents Injunctive
Relief.

As the California court correctly concluded,

Petitioner’s arguments turn on an exceedingly narrow
definition of the “liability” that is precluded by Section
230. Pet. 90a. That court rejected Plaintiffs’
arguments, explaining that “in common legal
parlance at the time of Section 230’s enactment,
‘liability’ could encompass more than merely the
imposition of damages.” Id. (citing Liability, Black’s
Law Dictionary (10th ed. 2014); “defining ‘liability’ as
“a broad legal term that has been referred to as of the
most comprehensive significance, including almost

(11th Cir. 2006); Klayman v. Zuckerberg, 753 F.3d 1354, 1358

(D.C. Cir. 2014).
 16
every character of hazard or responsibility, absolute,
contingent or likely”). See also Pet. 90a-91a nt. 23
(explaining inconsistencies in dissenting Justice’s
narrow interpretation of “liability”). Indeed,
injunctive relief “is typically more intrusive” than
damage awards, Noah v. AOL Time Warner, 261 F.
Supp. 2d 532, 540 (E.D. Va. 2003), aff’d 2004 WL
602711 (4th Cir. Mar. 24, 2004), and this Court long
has recognized the uniquely pernicious dangers of
prior restraints on speech. See, e.g., Nebraska Press
Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The
suggestion that prior restraints are allowed where
liability is barred would turn the First Amendment on
its head.

Given this, it is no surprise that courts across

the nation consistently have held that Section 230
bars injunctive relief, as well as tort and contract
liability. See Ben Ezra, 206 F.3d at 983, 986 (Section
230 barred claims for damages and injunctive relief);
Hinton v. Amazon.com.dedc, LLC, 72 F. Supp. 3d 685,
687, 692 (S.D. Miss. 2014) (claims seeking injunctive
relief and damages based on allegedly selling recalled
hunting equipment barred by Section 230); Dart v.
Craigslist, Inc., 665 F. Supp. 2d 961, 963, 969 (N.D.
Ill. 2009) (rejecting public nuisance claim, including
request for injunctive relief); Smith v. Intercosmos
Media Group, 2002 U.S. Dist. LEXIS 24251, 2002 WL
31844907, *13-14 (E.D. La. 2002) (rejecting injunction
claim against ISP based on alleged failure to block
purportedly fictitious domain registrants); Giordano
v. Romeo, 76 So.3d 1100, 1102 (Fla. Dist. Ct. App.
2011) (rejecting claims for defamation and injunctive
relief); Shiamili v. Real Estate Group, 17 N.Y.3d 281,
285, 293 (2011) (rejecting defamation claim based on
 17
a blog post, seeking damages and injunctive relief);
Reit v. Yelp!, 907 N.Y.S.2d 411, 415 (N.Y. Supr. 2010)
(rejecting request for preliminary injunction, and
granting Yelp’s motion to dismiss complaint).

The reason federal and state courts

consistently conclude that Section 230 bars injunctive
relief is clear. “An action to force a website to remove
content on the sole basis that the content is
defamatory is necessarily treating the website as a
publisher, and is therefore inconsistent with section
230.” Medytox Solutions, Inc. v. Investorshub.com,
Inc., 152 So.3d 727, 729, 730-731 (Fla. Dist. Ct. App.
2014) (rejecting action for declaratory and injunctive
relief based on Section 230).

Thus, in Kathleen R., 87 Cal. App. 4th at 697-

698, the court of appeal held that section 230(c)(1)
protected a city from claims based on public access to
the Internet at a public library, which included a
request for injunctive relief. The court explained that
“by its plain language, § 230[(c)(1)] 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.” Id. at 692, 697-
698 (citation, internal quotes omitted; bracketed
citation in original). Noting that “claims for …
injunctive relief are no less causes of action than tort
claims for damages,” the court held that they also “fall
squarely within the section 230(e)(3) prohibition.” Id.
at 698. As such, the plaintiff’s equitable claims there
“contravene[d] section 230’s stated purpose of
promoting unfettered development of the Internet no
less than her damage claims.” Id.
 18
As the court explained in Noah, 261 F. Supp.
2d at 538-39,

given that the purpose of § 230 is to

shield service providers from legal
responsibility for the statements of third
parties, § 230 should not be read to
permit claims that request only
injunctive relief. After all, in some
circumstances injunctive relief will be at
least as burdensome to the service
provider as damages, and is typically
more intrusive.

Id. at 540; see id. at 538-39 (in seeking to hold

defendant liable for refusing to intervene to stop
alleged online harassment and requesting “an
injunction requiring [defendant] to adopt ‘affirmative
measures’ to stop such harassment,” plaintiff
“clearly” is attempting “to ‘place’ [defendant] ‘in a
publisher’s role,’ in violation of § 230” (citing Zeran,
129 F.3d at 330)).

Petitioners cannot cite a single case that

supports their claim that Section 230 allows
interactive computer services to be subject to
injunctions to remove third-party content so long as
they are not named in an action. See Section B, infra.
The California Supreme Court plainly was correct in
rejecting Petitioners’ demand for injunctive relief
against Yelp because it is entirely based on
Petitioners’ claim that Yelp published defamatory
speech, but Section 230 bars all such claims. Pet. 92a-
93a. The lower court’s decision is consistent with
 19
uniform federal and state law. The Petition presents
no issue worthy of this Court’s review.

B. There Is No Circuit Split On this Issue.

Petitioners found only two cases—in the entire

Nation—that they could cite to claim a circuit split.
Pet. 16-17. But no circuit court decision addresses the
point raised in the Petition for Certiorari—thus, there
is no circuit split—and neither case Petitioners cite
even supports their request for this Court’s review.
Instead, the district court decision they invoke merely
mentions a different Section 230 subsection in dicta,
and the circuit case addresses the collateral order
doctrine, not whether Section 230(c)(1) applies to
injunctive relief.

1. Petitioners rely primarily on a case

decided two decades ago—and barely cited since—
holding that a plaintiff’s claim for injunctive relief
was not barred by Section 230(c)(2)—a subsection not
at issue in this case. Pet. 16 (citing Mainstream
Loudoun v. Board of Trustees of Loudoun, 2 F. Supp.
2d 783 (E.D. Va. 1998)). The court held that Section
230(c)(2) does not protect government entities—there,
a public library sued for its attempt to block access to
certain content at public terminals—because
Congress’ intent was to protect private content
providers. Id. at 787, 790. In dicta, the court said that
even if it did, “defendants cite no authority to suggest
that the ‘tort-based’ immunity to ‘civil liability’
described by § 230 would bar the instant action, which
is for declaratory and injunctive relief.” Id. (citing
§ 230(a)(2); Zeran, 129 F.3d at 330). As the court in
Kathleen R. later pointed out—and Petitioners fail to
 20
acknowledge—Mainstream Loudoun is
distinguishable because subsection (c)(2) contains
limiting language that is not applicable to subsection
230(c)(1). 87 Cal. App. 4th at 697-698. Thus, even if
this conclusory, twenty-year-old dicta were worthy of
this Court’s attention—it is not—it would not matter
because the district court interpreted a different
subsection of Section 230.

2. The second case Petitioners invoke is

even less relevant. Pet. 17, citing General Steel
Domestic Sales, L.L.C. v. Chumley, 840 F.3d 1178
(10th Cir. 2016). There, the district court rejected
defendant’s request for summary judgment of claims
against it based on twenty allegedly misleading
Internet posts, finding that only three were barred by
Section 230. Id. at 1180. Defendant appealed, and
the sole issue decided by the Tenth Circuit was
whether the collateral order doctrine conferred
appellate jurisdiction on the court. Id. at 1180-81.
The court relied on this Court’s “‘increasingly
emphatic instructions that the class of cases capable
of satisfying this “stringent” test should be
understood as “small,” “modest,” and “narrow”’” to
hold that it did not. Id. at 1181 (citation omitted).

The court rejected defendant’s argument that

prior references to Section 230 as providing
“immunity from suit” supported immediate review,
explaining that such immunity would require “‘an
explicit statutory or constitutional guarantee that
trial will not occur’” but Section 230 “does not contain
such language.” Id. at 1181-82 & n.1 (citation
omitted). The court explained that the qualified
immunity that supports appellate jurisdiction
 21
allowing immediate review “is a benefit typically only
reserved for government officials.” Id. at 1182
(citations omitted; discussing “three instances when
courts may extend qualified immunity to private
parties,” none of which applied there).

Contrary to Petitioners’ claims, General Steel

is in no way inconsistent with the California Supreme
Court’s Opinion. Pet. 17. That court did not consider
the type or scope of liability barred by Section 230. It
merely addressed the separate question of
jurisdiction for immediate appellate review under
federal law. Petitioners’ heavy reliance on this case—
although it is wholly inapposite—exposes the
emptiness of their request to this Court. If this
Court’s review of this issue ever might be warranted,
it would only be after a more fulsome analysis by the
lower appellate courts. There is no genuine conflict
among the lower courts and even if there were, this is
not a suitable case to resolve that conflict.

C. Congress Has Consistently Approved

Section 230’s Broad Reach, with
Narrow Exceptions as It Deems
Appropriate.

Petitioners tellingly ignore Congress’s

consistent approval of the broad reach of Section 230
that courts have recognized—presumably because it
refutes the arguments at the heart of their Petition.
In both of its decisions interpreting Section 230, the
California Supreme Court has noted and adhered to
this plain evidence of legislative intent, establishing
that its interpretations of Section 230 have been
correct.
 22
1. In its first decision interpreting Section
230, the California Supreme Court pointed out that in
2002—as Section 230 was in its infancy, and its full
reach being explored by the courts—Congress
adopted legislation that created a new Internet
domain for family-friendly content. Barrett, 40 Cal.
4th at 54. Citing to a Congressional Report prepared
by one of the co-authors of Section 230, the court
noted Congress’ express approval of the broad
interpretation of Section 230(c) in cases such as
Zeran, Ben Ezra and Doe v. America Online, 783
So.2d 1010 (Fla. 2001). Id. at 54 & nts. 16, 17.

2. In the Opinion at issue here, the

California Supreme Court found support for its
holding in the fact “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.” Pet. 85a nt. 20. The court explained
that Congress’ enactment in 2010 of the Securing the
Protection of Our Enduring and Established
Constitutional Heritage Act (28 U.S.C. § 4101 et seq.),
“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.” Pet. 85a nt. 20 (citing
Sen. Rep. No. 111-224, 2d Sess., at 2 (2010).) The
legislation prohibited courts from recognizing foreign
judgments for defamation unless doing so would be
consistent with Section 230. Pet. 85a-86a nt. 20
(citing id., 28 U.S.C. § 4102(c)(1).) Thus, Congress
again expressed its approval of the broad reach of
 23
Section 230, without any suggestion that Section 230
should be constrained in any way.

3. Finally, as the court recognized, the

President recently signed into law the “Allow States
and Victims to Fight Online Sex Trafficking Act of
2017” (“SESTA/FOSTA”). Pet. 97a (citing Pub. L. No.
115-164, § 4 (April 11, 2018) 132 Stat. 1253). With
this narrow bill, Congress amended Section 230 and
relevant criminal statutes to withdraw Section 230
immunity from certain state criminal actions against
persons involved in sex trafficking. As the court
explained, “[f]or 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.” Pet. 97a; see also Section A.2, supra.
Although some plaintiffs undoubtedly were harmed
by the speech at issue, “Congress has declined to
amend section 230 to authorize injunctive relief
against mere republishers, even as it has limited
immunity in other ways.” Pet. 97a (citing Pub. L. No.
115-164, § 4 (April 11, 2018) 132 Stat. 1253 (emphasis
added)). The court concluded that “[a]lthough 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.” Pet. 97a-98a
(emphasis added).

4. At bottom, the Petition is premised on

Petitioners’ claim that the Internet is an unregulated
abyss, affording no recourse to people purportedly
harmed by third-party speech posted there. But this
 24
is simply not true. As shown above, Congress
specifically addressed one of the issues repeatedly
invoked by Petitioners—human trafficking—by
providing that Section 230 does not stand in the way
of enforcement of federal and state criminal laws.
Outside of this unrelated area, plaintiffs are not left
without a remedy—although if they were, it would not
matter because Congress’s intent controls.

For over twenty years, Congress has insisted

that plaintiffs look to the content creator alone for a
remedy, including through tools such as judgment
liens and contempt proceedings—post-judgment
options that Petitioners never pursued here, but
which the California Supreme Court appropriately
recognized could provide meaningful relief to
Petitioners. Pet. 98a. In the past two decades, no
court has approved Petitioners’ stratagem of denying
a website publisher its due process rights in order to
tactically avoid the immunity Congress established
through Section 230. This Court’s blessing of the
injunction entered against Yelp—following an
uncontested hearing to prove up the default judgment
against the Internet poster alone (A00213)—would
create a gaping hole in the broad immunity adopted
by Congress in Section 230, that future plaintiffs
would quickly exploit.

As Congress appropriately has recognized,

Section 230 immunity plays a vital role in the legal
landscape that has allowed the Internet to flourish.
“The provisions of section 230(c)(1), conferring broad
immunity on Internet intermediaries, are [] a strong
demonstration of legislative commitment to the value
of maintaining a free market for online expression.”
 25
Barrett, 40 Cal. 4th at 56. Viewed only through the
prism of review websites such as Yelp, Section 230’s
broad protection of websites that publish third-party
content plainly serves the public interest. E.g.,
Edwards v. District of Columbia, 755 F.3d 996, 1006
(D.C. Cir. 2014) (“[f]urther incentivizing a quality
consumer experience are the numerous consumer
review websites, like Yelp ..., which provide
consumers a forum to rate the quality of their
experiences”).

Congress’s studied decision to provide broad

protections to Yelp and entities like it plainly furthers
the public interest. If Internet publishers are denied
their right to exercise editorial control in publishing
consumer reviews, businesses will have an effective
tool to remove critical commentary and consumers
will suffer. If this Court were to reverse the
California court’s opinion, Yelp and other websites
would suffer and the public that relies on the wealth
of online third-party commentary—to aid decision-
making on myriad issues like consumer purchases,
politics, and employment—would be harmed as
subjects of criticism follow Petitioners’ example:
intentionally sue the commenter alone, perhaps in a
manner that maximizes the chance that he or she will
be unable or unwilling to defend the lawsuit
regardless of its underlying merit, and then after a
default judgment present the injunction to the
website publisher as an unassailable fait accompli.
Pet. 93a & nt. 24. A decision reversing the California
court would undermine the validity and efficacy of the
information available to consumers, and online
speech generally.
 26
Petitioners’ quest to deny Yelp the federal
immunity it would have received if Petitioners had
sued Yelp directly should stop here and now. Their
insistence that the lower courts should have elevated
the form of the action—namely, the fact that Yelp was
tactically not named as a party—over the plain
language of Section 230 and Congress’s clear intent in
enacting it to protect websites from actions that treat
them as publishers or distributors of third-party
content, would exalt form over substance and
eviscerate the protection provided by Section 230.
Congress has spoken—repeatedly—and the
California Supreme Court properly has abided by that
mandate in its decisions interpreting Section 230.
There is no Circuit split; there is no statutory
language; and there is no public policy, to support
Petitioners’ arguments. Petitioners seek a remedy
without a reason.
 27
IV. CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted this 14th day of

December, 2018.

THOMAS R. BURKE
Counsel of Record
ROCHELLE L. WILCOX
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
(415) 276-6500

AARON SCHUR
YELP INC.
140 New Montgomery Street
San Francisco, California 94105
(415) 908-3801