HASSELL v. BIRD

Appellant’s Opening Brief on the Merits

Cal.November 21, 2016

Case No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN HASSELL,etal. Plaintiffs and Respondents, vs SUPREME COURT AVA BIRD, Defendant, NOV 21 2016 Jorge Navarrete Clerk YELP, INC., Appellant. Deputy After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court of the County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith YELP INC.’S OPENING BRIEF ON THE MERITS DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLE L. WILCOX rochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHURaschur@yelp.com (SB# 229566) 140 New Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. Case No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN HASSELL,etal. Plaintiffs and Respondents, vs. AVABIRD, Defendant, YELP, INC., Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court of the County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith YELP INC.’S OPENING BRIEF ON THE MERITS DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLEL. WILCOXrochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHURaschur@yelp.com (SB# 229566) 140 New Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. I. IIL. IV. VI. TABLE OF CONTENTS ISSUES PRESENTED.W..cc ceccceesssseeeeseceeceseceecessecssenseeeessseeasensensees 1 SUMMARY OF ARGUMENT.....cccscessscessseseesessesesstessesseeseeensenas 2 STATEMENT OF FACTS AND PROCEDURE.........cecesceseeseeeees 8 A. Yelp Publishes Tens of Millions of Third-Party Authored REVICWS....sceessscscesscececeseeseescseesceeseseessecseesesesesseeceseseesenseatenseeas 8 B. Hassell Obtains An Injunction Against Yelp Without Giving It Any Notice. 00... eecscsesseesecteeeeestseeereessesesseeeees 9 1, Third-Party Users Write Critical Reviews About Hassell Law Group On Yelp. .......c.csccscsssseeseessessensenes 9 2. Hassell Sues Bird And Obtains A Default Judgment, Which Includes An Injunction Against YELP. eeeecscesessseescseeeeseeeserseseseseneceesesseesesessseeeaseneeas 10 C. The Trial Court Denies Yelp’s Motion To Vacate The INJUNCTION. 2... ce eeeeecsscessseesessesesessecsssessaseesseneeessesesneesseceuses 12 D, The Court OfAppeal Affirms The Trial Court’s Decision. . 13 INTERNET PUBLISHERS LIKE YELP ARE ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD BEFORE THEY ARE ORDERED TO REMOVE CONTENT. ........cece 16 A. C, Due Process Requires Notice And An Opportunity To Be Heard Before Being Subject To An Order Affecting Rights. eeeeeecessscceeesesesssseeeceeessseseseseceesessssrssesssstssssssenees 17 The Court OfAppeal Diminished Fundamental Due Process Protections By Expanding A Narrow Rule Allowing Courts To Enjoin Aiders, Abettors, And Agents OfParties. 0.eee ceecssscsseeeseeeeteeesecsesesseseceesessessesescaseesesseneess 21 Yelp Has A First Amendment Right To Publish Reviews On Its Website. oo...eee eceeeteeesseeererseseercesecseserenscsessssseeseens 28 SECTION 230 BARS THE INJUNCTION AGAINST YELP BASED ON COMMENTSPOSTED BY “BIRDZEYE B.” AND “JDL?icecceecessessseceeessecsessecseseeeeseecseecaeeceecessessssessessesseesessecees 34 A. Section 230 Protects Online Publishers From All Legal Actions Based On Third-Party Content. ..........cccesseeseseeeee 35 B. Yelp Established Its Right To Section 230 Immunity........... 41 C. The Appellate Court’s Interpretation Ignores And Misconstrues Key Parts Of Section 230. .........csecsessesssceees 44 CONCLUSION|... ecececcenessssseeessecseeesnecsesesecseeceneseseasasesessensensens 56 ii TABLE OF AUTHORITIES Page(s) Cases A Quantity ofCopies ofBooks v. Kansas (1964) 378 U.S. 205 oo. eeccesecscssscescecssccesseecssseeeececsaseeetcesasensneeeeseneeeee20 Alemite Mfg. Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 ooo. cecccsssccssssceesscececcsssseeseeecsaseesseneeseeeeess22 Almeida v. Amazon.com, Inc. (Lith Cir. 2006) 456 F.3d 1316.eccssecccsssensesseeessseesseeeessnseeeeees38 Arkansas Educational Television v. Forbes (1998) 523 U.S. 666 occccssscssccscecsseessecsseecsseeeesscessesssteesseeseeseaneesenes29 Associationfor Los Angeles Deputy Sheriffs v. Los Angeles Times Comm’n LLC (2015) 239 Cal.App.4th 808 0... .cccccccesssesssecsssccesssesesessesceeeeseesseessetees 31 Backpage.com, LLC v. Cooper (M.D. Tenn. 2013) 939 F.Supp.2d 805 oececccceceeseceeeeeceetanenseeeasenes46 Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141oeeecccccsssrsteessceccsseeessesenessssecseeenes passim Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096... ecsscssseesseeeesssecessssnecseessreessesenenees47 Barrett v. Rosenthal (2006) 40 Cal4th 33oocesssceessecenssssseeessarecenevcesetsseesaseseeeas passim Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018woeesseseteceseeesessecssesseeesteees 38, 39, 42 Ben Ezra, Weinstein, & Co. v. America Online Inc. (10th Cir. 2000) 206 F.3d 980 ou... ce cccssscscseseesesteceeseeneceseeeeaes 38, 40, 51 Berger v. Superior Court (1917) 175 Cal. 719 ce ceccccssccesecsecesecesecsseseeeseessessseesaeseaaeesaeenaees 12, 23 iii Bigelow v. Virginia (1975) 421 U.S. 809 ooceccescceeseeecseesseeesesssesesseeeesssesseesseeeessseseesaes29 Blockowicz v. Williams (N.D. Ill. 2009) 675 F.Supp.2d 912 , aff'd (7th Cir. 2010) 630 F.3d 563 wo. .ccecccccccccessescsscssssssessscccececcecsesessnacecessnceseeceeesseceseeensnauencs23 Blonder-Tongue Labs., Inc. v. Univ. ofIll. Found. (1971) 402 U.S. 313 coececetseseceecssesessecsrssssessssseessseeseeserscaeeessateeeeass 18 Carafano v. Metrosplash.com Inc. (9th Cir. 2003) 339 F.3d 1119ieccseeteeeerseesesessesseeseseees 35, 38, 55 Carroll v. President & Commissioners ofPrincess Anne (1968) 393 U.S. 175 cee ccesessecsssessssssscsseessesscssssssesssssessesessseeeseenes 19, 32 Chase National Bank v. City ofNorwalk, Ohio (1934) 291 U.S. 431 eceseseseeeceeeseneeseesceeessscsseeeecsseascasaeeneaseesseses 18 Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc.v. Craigslist, Inc. (7th Cir. 2008) 519 F.3d 666.0... ecescessssrssseeescesessceeseeseesees 38, 45, 48 Dart v. Craigslist, Inc. (N.D.Ill. 2009) 665 F.Supp.2d 961.0... ccesssscsetscsssseesessessceeeenes 45,51 Delfino v. Agilent Techs., Inc. (2006) 145 Cal.App.4th 790... cecscssccssssscsssessssssssssssesssesesestees 42, 46 Doe II v. MySpaceInc. (2009) 175 Cal.App.4th S61oeceeeccesecesecsesseesesesteeessessersenseees 42, 46 Doe v. America Online (Fla. 2001) 783 S0.2d 1010 oo. eceecccccscccsscessssesssscsssesessssereeseesssessenaes40 Doe v. Backpage.com, LLC (1st Cir, 2016) 817 F.3d 12cecccccsecstsscssssescesssseescssseeesseecesesseseeseens38 Doe v. MySpace, Inc. (Sth Cir. 2008) 528 F.3d 413cccccsessssecsecseessecctsessseseeescssecsesseeeees38 Does v. Franco Prods. (N.D.TL. June 22, 2000) 2000 WL 816779 ou... .ccceccscessesssescesssstsscnsees 52 Duncan v. Walker (2001) 533 U.S. 167 cc eceeeeescccscccssscscccssseceecsccssssessseseesssscesececssanseesseass45 iv Edwards v. District ofColumbia (D.C. Cir. 2014) 755 F.3d 996 eceesccccscessseccsnecesceeesseseeeseeeesnssssesseeseneens 6 Estate ofBuchman (1954) 123 CalApp.2d 546iccccseccssecsscsecsrsssesseesrseseesesecesssessstessas 17 Evans v. Evans (2008) 162 Cal.App.4th L157... cccsccccseesesscesecsscssseeecsssesesessessesereeees 31 Fair Hous. Council ofSan Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157 (€72 Banc)... eesececeseeeeeeeee 39, 47, 48, 54 Fazzi v. Peters (1968) 68 Cal.2d 590. cccscssscssecstsessssscescsssssscerseteeseesseeees 18, 20, 28 Gentry v. eBay, Inc. (2002) 99 CalApp.4th 816.eeeessessssesssesscerscsevsrseesecenteesenees 42, 46 Giordano v. Romeo (Fla. Dist. Ct. App. 2011) 76 S0.3d 1100.esseeeteeeteeeeeeeeeeneeees51 Green v. America Online, Inc. (3d Cir. 2003) 318 F.3d 465 woeeeeceeteeseesceteessesseesacesteerseseseeereseeens 38 Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709... cccccscsreccseneseecsecseseseeseseeeeeseessseseasessstneseas45 Heller v. New York (1973) 413 U.S. 483 voc eeccscccsesrrcenecssseessseceeeessecseeteeeareeseesenees 19, 20, 29 Hinton v. Amazon.com.dedc, LLC (S.D. Miss. 2014) 72 F.Supp.3d 685, 687, 692 ......ccssscsssecssestessseessenes 51 Hupp v. Freedom Commce’ns, Inc. (2013) 221 CalApp.4th 398 vo.ccssscenecnesesentscecseseseeesseceeeeesessesererens42 Hurvitz v. Hoefflin 1232 (2000) 84 CalApp.4th un... eeseecssecsecseetecssecsecseeseaeesserseesenneseaes31 In re Berry (1968) 68 Cal.2d 137ieesssecccsreerseeesseesecseeaecerseeetaretenesentes 24, 25, 26 In re Lennon (1897) 166 U.S. 548 Lececscsestecessecessereeeeeseesatseeececeteseeseteetenseanessees22 Johnson v. Arden (8th Cir, 2010) 614 F.3d 785 vo eeeesssseestesscsseecsseceessscsseeesstecserscssssessess38 Jones v. Dirty World Entm’t Recordings, LLC (6th Cir. 2014) 755 F.3d 398 vo ccsccescssessssceseeeesecsseessseeesseserereeseessessens38 Kash Enterprises, Inc. v. City ofLos Angeles (1977) 19 Cal.3d 294icsesscsecctscesscesctecsstersecstesesecsessrsesecssestenseeeees20 Kathleen R. v. City ofLivermore (2001) 87 CalApp.4th 684oesssseesctctetseeecseesasenereeseees 5, 50, 51, 52 Kimzey v. Yelp! Inc. (9th Cir., Sep. 2, 2016) 836 F.3d 1263, 2016 U.S. LEXIS 16665 oeceecesccsecsnecessceescsessecsesetscesseeesseeessersossaeesaseeeersesnaeeenessaeenes 54, 55 Klaymanv. Zuckerberg (D.C. Cir. 2014) 753 F.3d 1354 ooceeccesceneeteeeeaeeteeeteseesseeeeensesseees38 Lake Shore Asset Mgmt. Ltd. v. Commodity Futures Trading Comm’n (7th Cir. 2007) S11 F.3d 762eceeccescesssscsteceessseesseceeseeseessecaeenrsensees26 Lee Art Theatre, Inc. v. Virginia (1968) 392 US. 636 weecscscctccesessrecectecesereeseesseessatenseesserseecaeetaeeeeetneess20 M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC (E.D. Mo. 2011) 809 F.Supp.2d 1041 oo.eeeeesceseseseeetseerereeseensenseees46 Mainstream Loudoun v. Board ofTrustees ofLoudoun (E.D. Va. 1998) 2 F.Supp.2d 783 oo. eccessssccseccseseccnsceeseesesecseeeessseeeesaeens 52 Marcus v. Search Warrants (1961) 367 US. 717 co ceccccccseccessnsececsesccenseeseesesseescesaessesesessseeeeses 15, 29 Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla. Dist. Ct. App. 2014) 152 S0.3d 727cicscesesseeeeesetseteeeseeeeeseeens 50 Murawskiv. Pataki (S.D.N.Y. 2007) 514 F.Supp.2d 577 0... eceeeseccssceecsserseeeeseeeteereresseeens46 Nebraska Press Ass’n v. Stuart (1976) 427 U.S. 539 vcicccccesscssseccsstecesssnesssessesssesseeeessecseeessneecesvenseanesees30 Nemet Chevrolet, Ltd. v. Consumeraffairs.Com, Inc. (4th Cir. 2009) 591 F.3d 250ceceseneeeeneetesseeseeeseseeetsecseneenes 39, 54 vi New York Times Co. v. Sullivan (1964) 376 U.S. 254 oicccsccccssssescecsneccssecsecessseeesseeessaeeceseatesseeeecesenees30 Noah v. AOL Time Warner (E.D. Va. 2003) 261 F.Supp.2d 532, affd (4th Cir. Mar. 24, 2004) 2004 WL 602711 oeeeseesceceenecneesseeeseceseteeesersereseeees 51, 54 People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090...eesesssseseesseessecseesseessseesesseteresseeesseees24 People v. Brewer (2015) 235 CalApp.4th 122eeeeeessecceseesecnecssseseseasesesesseeeseeeneeses 14 People v. Conrad (1997) 55 CalApp.4th 896.0... ccescccssccssessessessetsecseessesesecseesessess 24, 49 People v. Kothari (2000) 83 Cal.App.4th 759eeeesesesenetseeecreeneeseseseeererseeseraaeaes 22, 23 People v. Lucas (2014) 60 Cal.4th 153 oo.ccsccesseseccnecsscscessceeseesseseasersecersessenesesssenes28 People v. Ramirez (1979) 25 Cal.3d 260 i.eccceessecssesseceecneetsecseeceesseseaeseaeesseseeeaeeeseesas 17 People v. Romero (2015) 62 Cal.4th Loecescseeescceesececeeseessaeeeereseseeesseeeeeeseeeeareseteeees28 Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345vecccescsscectscsessecersesssesssecsseennssesenes 23, 25 PY Little Italy, LLC v. MetroWork Condominium Ass'n (2012) 210 Cal.App.4th 132 cccsssssscccsscessssssssusssssssesssvssssssssesssssessesen 13 Regal Knitwear Co. v. N.L.R.B. (1945) 324 U.S. 9 Leesceseesneeeeseceseseeenessseesaeseeseeseteeeeeons 18, 21, 22, 26 Reit v. Yelp! (N.Y. Supr. 2010) 907 N.Y.S.2d 411 oeecceeeesectseecenecenereteeesneeesnes 51 Reno v. American Civil Liberties Union (1997) 521 U.S. 844 voccccccccsecsteestscssesseseseesesscessesseasssssrecesseesesaeenees34 Ricci v. Teamsters Union Local 456 (2d Cir, 2015) 781 F.3d 25 weecesscccsscsneecssecsecsseessesseecsseseaecnsenssseeessens38 vil Richardsv. Jefferson County (1996) 517 U.S. 793 vecescssccssessesecsesecesecsseaseeeeaevsessesseseeeeesieeseeseeeseenees 18 Ross v. Superior Court (1977) 19 Cal.3d 899ooeccsessesseeseceaeeeeaseeseseeseeeeessesseereeatees 12, 24 Shiamili y. Real Estate Group ofNew York, Inc. (N.Y. 2011) 17 N.Y.3d 281oecesscssecseeesscessesessceteseessessssesnesses 43,51 Sikhsfor Justice “SFJ”, Inc. v. Facebook, Inc. (N.D.Cal. Nov. 13, 2015) 144 F.Supp.3d 1088...eeseeseeseeenees48 Smith v. Intercosmos Media Group (E.D. La. 2002) 2002 U.S. Dist. LEXIS 24251, 2002 WL 31844907 oo eeeecccesscnectetsesstsecsectseseesseesessscnesseeeesseeassnecesenaeeceesssesaeesesanees 51 Stratton Oakmont, Inc. v. Prodigy Servs. Co. (N.Y. Sup. 1995) 1995 WL 323710 weceseesseeecseeteceseeeectesseeeesaeeseens 37 Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 CalApp.4th 110.eeescessseterseecsecsesseeeeseeaeeatvaeeseeseees28 Universal Commce’n Sys., Inc. v. Lycos, Inc. (1st Cir. 2007) 478 F.3d 413 oceccessescecesecteeesecceeetareeeecteeaeeresens 38, 42 Wilson v. Superior Court (1975) 13 Cal.3d 652... ecscssecccneeeseesecseteesssessescssceeeedeeeetecsteessesensens31 Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327 occseseessceseesneeeseeesseseseeeeessseteseeens passim viii Statutes 47 U.S.C. Se0passim § 230(A)(2) ....eescccssccssessccseeessseeseneeesecesseesssesecerassaeessaeeseseeessasesneeseessaeessasaes 52 S101C0] 936 § 230(D)(2) ....eeccessccsccesecesecscsccesevesseesseesessessseseseeesseeceaesesseenseeseeeessesaeenes 36 § 2B0(D)(3) ....eccecccecceseeeceneesseseneceeeeseersaceeseessseseesnesesscesessresssseensaseseeeseass 35 § 23BO(C)..ccccccssccsrccescescescsseeeceesaeesaeseaeessecseeseveesaeesnessaesesesenteeascsavseesaes 38, 40 § 23BO(C)(1) ...cecccesccescecceerseteseceeeeeaeeeneesneesessereesseresesessenseesassseserenensens passim § 2BO(C)(2) ..ccerccessccseercecessecesecetccesaeeneesaeesersessersesessesserseseeeessseeessaseeseenees 52 § 230(C)..cccccccccccscscssssesesscsecscesecsessscseeseecseneeetsecaeerssecseeseesaceeesseceneeaeetatsas48 § 230 (€)(3) ..cescccsscsscersesceseeesecsecesaceseessesseeeesseseecessesseeseeasesessesseseneees passim § 23O(L)(2Z)....eecccesccscesrcesecesseccscecesseeeseeessesesecesessecseesessesesssesssesesesaeseseses4] § 230(L)(3B) ....eescccesscsssssscesececteeccseecsessessecsesteessesesneesseesssasesseeseneens 41, 42, 43 § 2BOCLY(A) oo .ceccecccccceccsreessecseesneceeeeaeesssesseeessasecessoeseccseseasesesseesesensassaveess41 Other Authorities Black’s Law Dictionary (10th ed. 2014)...cece cseseceneseneessssceastenenaees 54 Grossman, Lev, You—Yes, You—Are TIME’s Person ofthe Year, TIME MAGAZINE (Dec. 25, 2006) .......cceecesseeeseeeeeeeseesneeesseecenes34 "Internet Users,” Internet Live Stats (visited Oct. 31, 2016) http://www.internetlivestats.com/internet-USeTS/........scesesseeeereeeeeeees34 James, Josh, How Much Data Is Created Every Minute? (June 8, 2012)http://www.domo.com/blog/2012/06/how-much- data-is-created-every-minute/?dkW=SOCf3 oo...ee eecesseeeeessesersevseeseavens 34 Madden, Mary and Zickuhr, Kathryn, 65% ofOnline Adults Use Social Networking Sites (Aug. 26, 2011) http://pewinternet.org/Reports/20 1 1/Social-Networking- Sit€S.ASDX ...scesscsscesssecsseeceeeceecssevscsesesseessesceseessssseessseseeseeseesseceseasesseseesees34 United States Constitution, First Amendment..0...eeeceseeeeeeeeenes passim ix I. ISSUES PRESENTED l. This Court has recognized a narrow exception to the requirement that a non-party to litigation receive notice and an opportunity to be heard before an order is entered that may be applied to that non-party, limiting that exception to cases where the non-party is acting in concert with a party, or the party can only act through others (such as a union that can only act through its members). Can that narrow exception be extended to a non-party without any factual findings to support that extension, thus allowing courts to deprive online publishers of notice and the right to be heard before infringing their First Amendmentrights by ordering them to removeonline content? 2. 47 U.S.C. § 230(c)(1) and (e)(3) prohibit courts from treating any “provider ... of an interactive computer service ... as the publisheror speaker of any information provided by another content provider,” and, separately, from permitting a “cause ofaction [to] be brought” or“liability [to] be imposed”if it is “inconsistent with this section.” Despite Section 230’s statutory immunity, may a court enjoin a website publisher and require it to remove third-party created content from its website—and impose contempt citations and related liabilities that might flow from a failure to abide by such an injunction—merely because the plaintiff chose not to name the website publisheras a party in thelitigation? Il. SUMMARY OF ARGUMENT Yelp Inc.' learned forthefirst time that a prior restraint had been entered against it when a copy wasdeliveredto its registered agent for service of process. A00537-547. The default Judgmentthat includedthat prior restraint required Yelp—a non-party to the underlying lawsuit—to removereviewscritical of Plaintiffs from its website and to not publish Juture postings from two Yelp accounts. A00213. Although Yelp had been given no advancenotice that Plaintiffs were seeking a priorrestraint against it, the trial court denied Yelp’s motion to vacate the Judgment. A00808- 810. The court of appeal affirmed, invoking a narrow exception to basic due process rights that was created to prevent parties from evading an injunction through gamesmanship. Op. 18-19. On review,the appellate court did not find, or even consider whether, Yelp had engaged in such misconduct, and did not analyze Yelp’s connections with the actual defendant. The appellate Opinion contemplates contempt and sanctions ' Along with Yelp’s related websites and mobile applications, Non- Party Appellant Yelp Inc. is referred to simply as “Yelp”in this Brief. Plaintiffs Dawn L. Hassell and the Hassell Law Groupare referred to collectively as “Hassell” or “Plaintiffs.” Citations to the three-volume Appendix filed in the court of appeal are denominated “A00XXX.” Citations to the appellate court’s Memorandum Opinionare to “Op.’ ’ Citations to the concurrently-filed Request for Judicial Notice are to the “RJN.” S C E L A P L proceedingsagainst Yelp if it refuses to comply, although Yelp has no more connection with the enjoined party than it has with the tens of millions of other third-party authors whose reviewsit hosts on Yelp, and engaged in no wrongful conduct. The court of appeal’s due process analysis was flawedatvirtually every step. Initially, the court misread U.S. Supreme Court authority that unequivocally requires notice and an opportunity to be heard in connection with orders restraining the distribution of speech. The appellate court held that no prior hearing was required. Op. 23. And while it maybetrue that in a narrow category of cases, courts may enjoin speech without a prior hearing, the law also is clear that aprompt hearingis constitutionally required to give the enjoined party an opportunity to oppose entry of an ERMMIEY injunction against it. That did not happen here. Section 1V.Aj, infra. PALES To support its decision, the appellate court grossly expanded a narrow exception to due process, which gives courts leeway to apply injunctions to non-parties who—after the injunction is entered—are proven to have acted in collusion with the enjoined party, such as agents and abettors of that party. Without analyzing whetherthese cases should be extended to this very different factual scenario involving Internet speech, the court turned this exception into a general rule, which now allows courts to expressly name non-parties in injunctions without any factual findings of misconduct. In doing so, the court rendered meaninglessthe careful guidelines California courts have adoptedto limit the scope of this narrow exception, giving defamationlitigants worldwide an incentive to forum shop in California and a roadmap to circumventdue processrights here. Section IV.B,infra. Thecourt reached its conclusion only by pretending that Yelp is nothing more than the “administrator” of its website, ignoring Yelp’s role as a publisher of third-party authored speech andits First Amendmentright to control its own website. It also invoked this Court’s decision in Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 (“Balboa Island’) to support the prior restraint it entered against Yelp, while ignoring the fact that in Balboa Island this Court narrowly approved an injunction entered against a party following a contested trial, and nowhere suggestedthat courts may permit injunctions against non-parties following default proceedings. Noneofthe casescited by the court of appeal supportits rejection of Yelp’s First Amendmentrights here. Section IV.C, infra. The court of appeal combined its unwarranted rejection of Yelp’s due process and First Amendmentrights, with an unprecedented narrowing ofthe previously robust protection provided by the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. The court exalted the form of the action—namely, the fact that Yelp wastactically not named 4 as a party—overthe plain language of Section 230 and Congress’ clear intent in enacting it to protect websites from actions that treat them as publishers or distributors of third-party content. Section 230 immunity plays a vital role in the legal landscape that has allowed the Internet to flourish. As this Court noted a decade agoin its sole decision evaluating Section 230, “[t]he provisions of section 230(c)(1), conferring broad immunity on Internet intermediaries, are [] a strong demonstration of legislative commitmentto the value of maintaining a free market for online expression.” Barrett v. Rosenthal (2006) 40 Cal.4th 33, 56 (“Barrett”), In Barrett, this Court madeclear that Section 230 immunizes website operators from actions by disgruntled businesses hoping to punish them for allowing third-party content—even defamatory content—to remain on their websites. Jd. at 39-40. Section V.A, infra. The court of appeal followed Barrett in name alone. Op. 27. Yelp established its right to Section 230 immunity by demonstrating that (1) Yelp is a “provider or user of an interactive computer service”; (2) Hassell seeks to treat Yelp as a “publisher or speaker” of the contentat issue; and (3) the action is based on “information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Courts across the country consistently have held that Section 230 protection precludes injunctive relief. E.g., Kathleen R. v. City ofLivermore (2001) 87 Cal.App.4th 684, 697-98 (“Kathleen R.”). The broad protection the United 5 States Congress intended whenit enacted Section 230 protects Yelp here. Section V.B,infra. The appellate court rejected Yelp’s Section 230 defense only by treating Yelp “as the publisher or speaker”ofthe information provided by Bird, contrary to the plain language of Section 230(c)(1). Specifically, the court affirmed an injunction imposed on Yelp by stretching due process law to conclude that Yelp wasacting “with orfor” Bird (Op. 30-3 1)—1reating Yelp as standing in Bird’s shoes solely based on Yelp’s role as an online publisher of her alleged content. The court’s misinterpretation of Section 230 is utterly inconsistent with its due process holding—a contradiction that injects confusion into each of these legal principles. Its decision was flawed at every step, and mustbe reversed. Section V.C, infra. Viewed only throughthe prism ofreview 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 ofColumbia (D.C. Cir. 2014) 755 F.3d 996, 1006 (“[flurther incentivizing a quality consumer experience are the numerous consumerreview websites,like Yelp ..., which provide consumers a forum to rate the quality of their experiences”). If Yelp and entities like it are denied their right to exercise editorial control in publishing consumerreviews, this will provide businesses an effective tool to removecritical commentary and consumers will suffer. But the appellate decision reaches far beyondthis single area, vast though it may be. Internet publishers routinely display third-party content, including political organizations, media entities, and repositories of creative content such as YouTube, to name only a few. Some ofthis content entertains or educates, while some simultaneously offends, and muchofit walksa line between protected and unprotected speech. The value of such contentlies in the diversity and disparate views and opinionsoffered online. This does not leave plaintiffs like Hassell without a remedy— althoughif it did it would not matter because Congress’ intent controls. For twenty years, Congresshasinsisted that plaintiffs look to the content creator alone for a remedy, through tools such as judgmentliens and contempt proceedings—post-judgmentoptions that Hassell never pursued here. During those twenty years, no court has approved Hassell’s stratagem of denying a website publisher its due process rights in order to tactically avoid the immunity Congress established through Section 230. The appellate court’s blessing of the injunction entered against Yelp, following an uncontested hearing to prove up the default judgmentagainst Bird alone (A00213), is a new loophole that this Court should close, lest future plaintiffs exploit it to escape Section 230’s broad immunity. If this Court were to affirm the appellate court’s opinion, Yelp and other websites would suffer and the public that relies on the wealth of 7 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 Hassell’s example: intentionally sue the commenter alone, perhaps in a manner that maximizes the chancethat he or she will be unable or unwilling to defend the lawsuit regardless ofits underlying merit, and then after a default judgmentpresent the injunction to the website publisher as an unassailablefait accompli. As the Amicus letters supporting review explained, people across the world are invoking the appellate decision to demand that website publishers remove content they do notlike, or reconfigure their websites to hide that content. E.g., Amicus Letter of Google, Inc., dated August 10, 2016, at 3; Amicus Letter of Glassdoor, Inc., dated August 15, 2016, at 2. This case is only one of manydifferent attempts to misuse the court system in the hopeofstifling speech on the Internet. E.g., RJN Exs. A-C. The court of appeal’s decision threatens to underminethe validity and efficacy of the information available to consumers, and online speech generally. Yelp respectfully requests that this Court reverse that decision. Il. STATEMENT OF FACTS AND PROCEDURE A. Yelp Publishes Tens of Millions of Third-Party Authored Reviews. Yelp allows any memberofthe public to read and write online reviews aboutlocal businesses, government services, and otherentities. A00240. Yelp is available to the public at no charge and without any registration requirement. Jd. Those whoregister by creating an account may write reviews about businesses and service providers, and thus contribute to a growing body oftens of millions of publicly-available consumerreviews. Jd. Tens of millions of other users read the reviews on Yelp when making a wide range of consumerand other decisions. Jd. The businesseslisted 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. Jd. Individuals posting reviews on Yelp can remove them at any time. A00841. As Yelp’s website explains, it applies automated softwareto all reviews posted in an attempt to provide the most helpful reviews to consumers. A00519. B. Hassell Obtains An Injunction Against Yelp Without Giving It Any Notice. 1. Third-Party Users Write Critical Reviews About Hassell Law Group On Yelp. Hassell, a San Francisco attorney, owns The Hassell Law Group, P.C. A00006. According to Hassell’s Complaint, Bird suffered a personal injury on June 16, 2012, and retained The Hassell Law Group. A00002-3. After a few months, Hassell ended the attorney-client relationship. Jd. 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 madea badsituation much worse for me” and accusing Hassell of failing to communicate with her and abandoningheras a client, among other things. A00018. Believing that “Birdzeye B.” was Bird, Hassell sent Bird an email that day, requesting she removethe “factual inaccuracies and defamatory remarks” from Yelp. A00005. Bird replied the next day, complaining about Hassell’s representation. A00348. 2. Hassell Sues Bird And Obtains A Default Judgment, Which Includes An Injunction Against Yelp. 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 claims based on twoallegedly defamatory reviews—oneby 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 accountprofile stated that its creator lived in Los Angeles (A00091), Bird was served through substitute service on the ownerofthe Oakland homein which Bird wasinjured, whotold the processserver that he had not seen Bird in months. A00026. OnJuly 11, 2013, the court entered a default against Bird. A00023. * The “J.D.” review accused Hassell of improperly deductingcosts from a settlement. A00020. Hassell claimed that “J.D.” was Bird based on the review’s use of capitalization, despite the content being at odds with the original challenged statement. A00034, A00099. 10 S S P E P R R R e t e A a On November1, 2013, Hassell filed a Summary of the Case in Support of Default Judgment and Request for Injunctive Relief. A00033- 36. Hassell significantly expandedthe relief being sought as described in the Complaint, adding another allegedly defamatory statement to her claim (A00036, A00102)° and demandingforthefirst time that the court “make an order compelling Defendant and Yelp to remove the defamatory statements, includingall 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 removeall 3 ofthem.” A00051 (emphasis in original). Plaintiffs’ Request for Judgment went further, seeking “an Order ordering Yelp.com to removethe reviews and subsequent comments ofthe reviewer within 7 business days of the date of the court’s Order.” A0Q0051 (emphasis added). Hassell intentionally did not serve her 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.” A0Q0213. The court madenofactualfindings as to Yelp. Jd. 3 She added anotherpost from Birdzeye B. that accused Hassell of trying to “threaten,bully, intimidate, harrass [sic]” her into removing the reviews. A00036, A00102. 1] or The Trial Court Denies Yelp’s Motion To Vacate The Injunction. On January 28, 2014, Yelp’s registered agent for service of process received a letter enclosing a Notice of Entry of Judgment andthreatening Yelp with contempt proceedingsif it did not comply with the Judgment. A00537-547. On February 3, 2014, Yelp responded to Hassellby letter stating that as a non-party that did not receive notice or an opportunity to be heard, Yelp was not boundbythe terms ofthe Judgment. A00548-550. Yelp further explained that Section 230 precludes enforcementofthe prior restraint, or liability as to Yelp. A00549. Hassell did not responduntil April 30, 2014. She claimedthat her office was “currently setting a motion to enforce the court’s order against Yelp,” but did not respond substantively to Yelp’s position. AQO551. On May 23, 2014, Yelp movedto vacate the Judgment. A00225- 470. Hassell opposed Yelp’s Motion to Vacate. A00471-572. On September 29, 2014, thetrial court denied Yelp’s Motion. A00808. It quoted from Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (“Ross”), and Berger v. Superior Court (1917) 175 Cal. 719, 721 (“Berger”), to hold that injunctions may run to non-parties whoare aiding and abetting an enjoined personto violate an injunction, and concluded that Yelp fit within this exception to general due process requirements. A00808-809. It 12 implicitly rejected Yelp’s claim to immunity under Section 230, not even referencingit in its order. Jd.“ D. The Court Of Appeal Affirms The Trial Court’s Decision. In a published decision, the court of appeal affirmedthe trial court’s conclusion that Yelp was boundbythe prior restraint. Op. 1-2. As relevant here, the court characterized the portion of the Judgment requiring Yelp to removecontent from its website as a “removal order” (A002 12-213)—not an injunction (Op. 1)—and without any explanation, treated the “removal order” asif it were separate from the Judgment. E.g., Op. 10-11 (concluding that Yelp was not aggrieved by the default judgment, but was agerieved by the removal order).° * During oral argument on Yelp’s motion,the trial court expressed disbelief that the statute could mean whatthis Court, and uniform federal courts nationwide, have said it means. Thetrial court complained to Yelp’s counselthat “[w]hat you’re saying is you can post any kind of defamatory information for the world to see, and you can say, we don’t have anything to do with it. We don’t care ifthey say Ms. Hassell shot her mother, or something like that. It doesn’t make any difference. I think yourposition is a very hard one to swallow.” A00834:6-11. While this Court expressed similar reservations aboutthe statute, it followed Congress’ directive and held that as a matter of law, websites like Yelp cannot be heldliable for content posted by third parties, even if the content is defamatory. Barrett, 40 Cal.4th at 62-63. > Someofthe court’s holdings grew out of this novel characterization of the injunction against Yelp, and its Opinion ultimately turned on its conclusion that Yelp was not subject to an injunctionatall. E.g., Op. 29 (“[a]gain though, the party that was enjoined from publishing contentin this case was Bird, ....”). Title aside, the “removal order”is a classic injunction and the court of appeal plainly erred by treatingit as anything else. See, e.g., PVLittle Italy, LLC v. MetroWork Condominium Ass ’n (2012) 210 Cal.App.4th 132, 143 n.5 (order returning control of 13 After evaluating Yelp’s standing to appeal (issues notraised here), the appellate court rejected Yelp’s argumentthat due process barred enforcement of the injunction against it. Op. 18-23. The court noted,first, that “An Injunction Can Run Against a Nonparty.” Op. 18. Citing a handful of cases, the court concludedthat “settled principles undermine Yelp’s theory that the trial court was without any authority to include a provision in the Bird judgment which ordered Yelp to effectuate the injunction against Bird by deleting her defamatory reviews.” Op. 19. The appellate court did not discuss or apply any of the requirements that California courts have enunciated to justify extending an injunction to anon-party. Op. 19-21. Instead, it simply distinguished the cases Yelp cited, concluding that none presented facts similar to those presented here. Id. The court madeclear that its decision did not turn on the facts of the case, and that the question ofwhether Yelp was “aiding and abetting” Bird’s violation of the injunction “has no bearing on the question whether the trial court was without powerto issue the removal orderin the first instance.” Op. 21. The court next rejected Yelp’s argumentthat the First Amendment protects its right to distribute Bird’s speech. Op. 21-23. The court association to non-parties was properly characterized as injunction); People v. Brewer (2015) 235 Cal.App.4th 122, 135 (defining injunction “as a writ or order commandinga personeither to perform orto refrain from performing a particular act” (citation omitted)). 14 distinguished a U.S. Supreme Court case holding that book and magazine distributors are entitled to due process in connection with a seizure order. Op. 21-22 (citing Marcus v. Search Warrants (1961) 367 U.S. 717 (“Marcus’’)). The court explained that “in this context, 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.” Jd. The court provided no definition of its newly fashioned term “administrator of the forum.” The court believed that the issue was whether a prior hearing was required, and that this case differs from Marcus because here “specific speech has already been found to be defamatory in a judicial proceeding.” Op.23. The court also rejected Yelp’s argumentthat the injunction is an unconstitutional prior restraint. Op. 23-26. Expanding this Court’s decision in Balboa Island to apply to non-party Yelp, the court held that “the trial court had the power to makethe part of this order requiring Yelp to removethe [statements at issue] because the injunction prohibiting Bird from repeating those statements was issued following a determination at trial that those statements are defamatory.” Op. 25. It narrowly reversed only that part of the trial court’s order that barred publication of any comments by “Birdzeye B.”or “J.D.” that might be posted in the future. Td. 15 Finally, the court held that Section 230 did not protect Yelp from Hassell’s injunction. Op. 26-31. Its decision turned largely on the fact that Hassell tactically chose not to sue Yelp, or even give it advance notice of her 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.” Op. 28 (citations omitted); see also id. 29-30. The court reasoned that “[i]f an injunctionis itself a form ofliability, that liability was imposed on Bird, not Yelp.” Jd. 30-31. The court rejected each of Yelp’s arguments. Op. 29-31. IV. INTERNET PUBLISHERS LIKE YELP ARE ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD BEFORE THEY ARE ORDERED TO REMOVE CONTENT The injunction here names Yelp—althoughit is not a partyto this action—andspecifically orders Yelp to remove third-party authored content from its website. Invoking whatit described as “settled principles” to reject Yelp’s due process arguments, the court of appeal insisted that a non-party may be subject to an injunction if it might, at some point in the future, be held to have “act[ed] in concert with the enjoined party and in support ofits claims.” Op. 19 (citations omitted). But noneofthe cases the court cited touches on the issue presented here: whether a non-party to litigation has a right to challenge an order that expressly namesit and affects its own rights—here, Yelp’s right to maintain third-party authored reviewsthatare critical of others on its website, 16 sometimes in conflict with the desires of businessesthat reject criticism and aim to remove such commentary from public view.® And none allowed an injunction where the non-party has such a remote connection to the party enjoined. The only connection between Yelp and Bird is that Bird, like tens of millions of people, posts reviews on Yelp. The court’s application of an exceedingly narrow exception to fundamental due process requirements grossly expands that exception beyondits intent and purpose and endangersprotections for free speech online. A. Due Process Requires Notice And An Opportunity To Be Heard Before Being Subject To An OrderAffecting Rights. The requirements of notice and hearing are firmly rooted in the United States and California Constitutions. As the court madeclear in Estate ofBuchman (1954) 123 Cal.App.2d 546, 559, “[t]he fundamental conception of a court ofjustice is condemnation only after notice and hearing.” Thus, “[t]he power vested in a judge is to hear and determine, not to determine without hearing,” and the Constitution requires a fair hearing. Id. at 560; see also People v. Ramirez (1979) 25 Cal.3d 260, 263-64. This Court long ago reaffirmed as a “seemingly self-evident proposition that a judgmentin personam maynot be entered against one not ° Tf Yelp removed every review a business owner argued wasfalse or even defamatory, it would have few critical reviews on its website. Yelp resisted Plaintiffs’ claims here to maintain the integrity of its website, for the benefit of its users. 17 a party to the action.” Fazzi v. Peters (1968) 68 Cal.2d 590, 591 (“Fazzi’’). As the U.S. Supreme Court has held, courts “may not grant an enforcement order or injunction so broad as to make punishable the conduct ofpersons whoact independently and whoserights have not been adjudged according to law.” Regal Knitwear Co. v. N.L.R.B. (1945) 324 US. 9, 13 (“Regal Knitwear’). That Court elsewhere explained that “it would violate the Due Process Clause... to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented.” Richards v. Jefferson County (1996) 517 US. 793, 794 (prior adjudication in tax case did not apply to petitioners because they were neither parties nor adequately represented in that case); see also Blonder-Tongue Labs., Inc. v. Univ. ofIll. Found. (1971) 402 U.S. 313, 329 (“Somelitigants—those whonever appeared in a prior action—may not be collaterally estopped withoutlitigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.”); Chase National Bank v. City ofNorwalk, Ohio (1934) 291 U.S. 431, 440-441 (reversing injunction entered against non-party; “[u]nless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgmentrecovered therein will not affect his legal rights”). 18 Despite these settled constitutional principles, Hassell intentionally sought to abrogate Yelp’s due process rights when she movedfor a default Judgment; as she put it she “anticipated that Defendant Bird would refuse to removethe Yelp review.” A00482.’ Thetrial court agreed, enjoining speech that Yelp displays and—through automated software applying criteria developed for the benefit of consumers—may,in its discretion, use to provide an aggregate rating of the Hassell Law Group to consumers looking to hire lawyers. A00212-213, A00519. The appellate court approvedthis gambit, holding that Yelp wasnotentitled to notice. Op.2, 23. But because Yelp has a separate First Amendmentrightto distribute the speech of others (Section 1C:, infra), it was entitled to a hearing to oppose entry of the overbroad injunction that restrained speech onits website. See Heller v. New York (1973) 413 U.S. 483, 489 (“Heller”) (“because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to imposea valid final restraint” (citations, internal quotes omitted; emphasis in original)).* 7 Indeed, at the hearing on the motion to vacate, Hassell admitted that she did not name Yelp in her Complaint because Yelp is immune from suit under Section 230, although she also madea half-hearted (and incorrect) argument below that Yelp did not qualify for Section 230 immunity. A00837; compare footnote 19, infra. 8 See also Carroll v. President & Commissioners ofPrincess Anne (1968) 393 U.S. 175, 180 (‘there is no place within the area of basic 19 The court of appeal’s invocation ofHe/ler—which decided whether a party is entitled to an adversarial hearing before speech is seized—missed the point. Op. 23. Yelp did not receive any hearing; it had no opportunity to challenge thetrial court’s conclusion—reached in an uncontested hearing following a default judgment—thatthe speech at issue was defamatory and must be removed, and that Yelp must not allowfuture speech to be posted by Bird. The appellate court plainly erred in failing to recognize the “seemingly self-evident proposition” (Fazzi, 68 Cal.2d at 591) that Yelp was denied its due process right to notice and a hearing before the injunction wasentered against it, and in narrowly reversing only the part of the injunction that barred future speech. Op. 25. As shown below, the line of cases it invoked does not support the broad abandonment of due process that occurred here. Section B, injra. freedoms guaranteed by the First Amendment”for exparte orders “where no showing is madethat it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate”); Lee Art Theatre, Inc. v. Virginia (1968) 392 U.S. 636, 637 (reversing conviction based on public display of movie alleged to be obscene; seizure warrant“fell short of constitutional requirements demanding necessary sensitivity to freedom of expression”(citations omitted)); A Quantity ofCopies ofBooks v. Kansas (1964) 378 US. 205, 212-213 (“if seizure of books precedes an adversary determination oftheir obscenity, there is danger of abridgmentofthe right of the public in a free society to unobstructed circulation of nonobscene books”(citations omitted)); Kash Enterprises, Inc. v. City ofLos Angeles (1977) 19 Cal.3d 294, 309 (ordinance allowing seizure of news racks without prior notice violated the First Amendment; “the Constitution does require that any such summary seizure procedure be narrowly drafted so as to minimize interference with First Amendmentrights”). 20 B. The Court Of Appeal Diminished Fundamental Due Process Protections By Expanding A Narrow Rule Allowing Courts To Enjoin Aiders, Abettors, And Agents Of Parties. In rejecting Yelp’s due process arguments, the court of appeal invoked whatit characterized as “settled principles” of law that in limited circumstancesallow an injunction to “run to classes ofpersons with or through whom the enjoined party mayact.” Op. 19. This narrow exception to the general due process requirement of notice and an opportunity to be heard allows an injunction to be enforced against a non-party whois not namedin the injunction based on evidence establishing that the enjoined party and the non-party acted together to evade the injunction, or the enjoined party and non-party have a close relationship such as union and member. Op. 19-21. The appellate court held that these cases authorized an injunction that expressly applies to Yelp, without any factual findings or evidence that Yelp engaged in the type of conduct, or had the type of relationship with the enjoined party, that California courts consistently have required. Jd. In Regal Knitwear, 324 US.at 14, the U.S. Supreme Court explained the very narrow purposeofthis exception—that successors and assigns may be boundbyan injunction if they are “instrumentalities through which defendant seeks to evade an orderor [] come within the description of persons in active concert or participation with them in the 21 violation of an injunction.” The Supreme Court did not decide if the non- parties there could be held liable for violating the injunction, althoughit cautionedthat it “depends on an appraisal of his relations and behavior and not upon mere construction of terms of the order.” Jd. at 15; see also In re Lennon (1897) 166 U.S. 548, 554-555 (injunction against railroad company could be enforced against one of its employees). As Judge Learned Hand explained nearly a century ago, a court is “is not vested with sovereign powersto declare conduct unlawful; its jurisdiction is limited to those over whomit 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. The court emphasized that “[t]his means that the respondent must either abet the defendant, or must belegally identified with him.” Id. (emphasis added). One California court has explained that this “commonpractice” of “mak{ing] the injunction run also to classes ofpersons through whom the enjoinedparty may act” means that “enjoined parties may not play jurisdictional shell games; they may not nullify an injunctive decree by carrying out prohibited acts with or through nonparties to the original proceeding.” People v. Kothari (2000) 83 Cal.App.4th 759, 766-767 (reversing injunction against property owners that also would bindall future owners of the property) (citations omitted; emphasis added). The court elaborated that courts may extend injunctions only to 22 ““instrumentalities through which [the] defendant seeks to evade an order or ... persons in active concert or participation with them in the violation of an injunction.’” Jd. at 770 (citation omitted; emphasis added). Thus,this rule allows courts to enjoin third parties who are acting at the behest and for the benefit of the third party, and not in pursuit of their own rights. Yelp is aware of only one case presenting similar facts, and that court rejected the argument Hassell makes here. Blockowicz v. Williams (N.D.Ill. 2009) 675 F.Supp.2d 912, aff'd (7th Cir. 2010) 630 F.3d 563. There, the court refused to enforce an injunction as to a non-party website hosting defamatory content, explaining that the website operator’s “only act, entering into a contract with the defendants, occurred long before the injunction was issued. Since the injunction wasissued, {the website operator] has simply done nothing, and it has certainly not actively assisted the defendants in violating the injunction.” Jd. at 916. In contrast, none of the cases the court of appeal invoked to support its holding enforced an injunction against a non-party on facts anything like those here. Op. 19. In most, the court refused to enforce an injunction against a non-party, finding that the relationship with the party was not close enoughto justify the attempt, or remanding for further consideration of the evidence against the non-party. Berger, 175 Cal. at 719-720 (injunction against union and members could not be enforced against non- union member); Planned Parenthood Golden Gate v. Garibaldi (2003) 107 23 Cal.App.4th 345, 353 (refusing to enforce injunction against abortion protestors neither namedindividually nor as class members); People v. Conrad(1997) 55 Cal.App.4th 896, 903-904 (injunction against anti- abortion group could not be applied to separate group); Jn re Berry (1968) 68 Cal.2d 137, 155-156 (reversing injunction related to union activity because it enjoined personsacting “in concert among themselves”). The court of appeal cited only one decision affirming enforcement of an injunction against a non-party. Op. 19 (citing Ross, 19 Cal.3d at 905).? In Ross, this Court held that an injunction against a state agency could be enforced against county agencies that served as agents in administering the program at issue. But that holding turned ontherelationship between the state and county agencies. Jd. at 907-908. The Court explained that becausethe state agency “could comply with the provisionsofthe ... order ... only through the actions of county welfare departments,it is clear that such counties could not disobey the order with impunity.” Jd. at 909. Here, in contrast, Bird herself could comply with the injunction at any time by removing the review from Yelp; no cooperation by Yelp is required to effectuate the injunction against Bird. A00841. And needless to say, Yelp is not Bird’s agent. * In addition, the court separately rejected Yelp’s reliance on People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1125, in which this Court affirmed a gang injunction against non-parties because “the gangitself, acting through its membership,[] was responsible for creating and maintaining the public nuisance”at issue. 24 The court of appeal’s opinion skewsthis line of cases, drastically expanding them beyondtheir original intent, in three fundamental ways. First, in none of the cases cited—andindeed, no case known to Yelp—did the court approve an injunction that required a specifically-named non- party to act, or not act, as ordered. Each evaluated application of an injunction to a non-party not explicitly named. E.g., Jn re Berry, 68 Cal.2d at 155-156 (strikers, who were not membersofenjoined union); Planned Parenthood, 107 Cal.App.4th at 350-351 (abortion protestors). In explicitly directing the injunction to Yelp, the court treated Yelp as if it had been a party and presentin the case all along with full opportunity to stand up for its rights as a publisher, ignoring the reality that Hassell intentionally did not sue Yelp and prevented Yelp from learning about the application for the injunction in the first place. The appellate court’s decision does not even mention that the court was applying these cases to a completely different set of facts, or contemplate the implications ofits decision to do so. Its perfunctory analysis led to the wrongresult. Second, the court madeclearthat it did not base its decision on any conduct by Yelp, explaining that the question ofwhether Yelp aided and abetted Bird’s alleged violation of the injunction was “potentially improper” and “has no bearing on the question whetherthetrial court was 25 without powerto issue the [injunction] in the first instance.” Op. 21.'° Thus, the court affirmed the injunction against Yelp without any evidence that Yelp engagedin the type of conduct that courts—includingthis Court—consistently require to justify applying an injunction to a non-party allegedly colluding with the enjoined party. Op. 19; e.g., Regal Knitwear, 324 US. at 16 (a decision to enjoin a specific party as a successoror assign would require “a judicial hearing, in which their operation could be determined on a concrete set of facts’’); see also id. at 15 (“whether a nonparty is bound ‘dependson an appraisalofhis relations and behavior’”).'’ Here, there was no appraisal of Yelp’s behavior or conduct '” The appellate court contemplated a second hearing, at which the trial court would decide whether Yelp should be held in contempt. Op. 18. But Yelp is faced with an injunction that expressly enjoins it and should not haveto decide between complying with an unconstitutional prior restraint and risking contempt sanctions. The procedure the court of appeal endorses—entering an injunction without notice and askinglater if the injunction is proper, all while entertaining contempt enforcement—is not and cannotbethe law in California. Cf In re Berry, 68 Cal.2d at 148-149 (person affected by injunction may seek “a judicial declaration asto its jurisdictional validity” or violate the order and risk contempt sanctions). Underthe court’s rationale, no reason exists to give anyone advancenotice that an injunction is being sought against them. Op. 21. The enjoined party could just argue afterwards—in opposing contempt proceedings—that no facts support the injunction. But that is not, and should not be, the law in California. ! Accord Lake Shore Asset Mgmt. Ltd. v. Commodity Futures Trading Comm’n (7th Cir. 2007) 511 F.3d 762, 767 (whether injunction can be applied to non-party “is a decision that may be madeonly after the person in question is given notice and an opportunity to be heard” (emphasis added)). 26 before Yelp was explicitly named in the injunction andlater threatened with contempt proceedings. A00211. Noprior case has gone so far. Moreover, the court reachedits decision without any analysis or appreciation of how its unfettered expansionofthis formerly narrow exception to due process will affect websites like Yelp, which publish tens of millions of third-party submissions, but which havenootherrelationships with those third parties—muchless connectionsthat justify being treated as their agents. If this narrow exception can be applied to Yelp—which is connectedto Bird only becausesheis one of millions ofpeople who post on Yelp—it can be applied to any third party. The exception will have swallowed the rule. A newspaperthat refuses to remove a publishedletter to the editor or a quote from a sourcein an article, a bookstore that continues to sell a book found to be misleading, and a library that provides Internet access, all are non- parties “with or through whom [an] enjoined party may act.” But none has the type of close relationship with the enjoined party that courts consistently have required to hold them boundby an injunction to which they were nota party. Third, the court ignored Yelp’s interests in its own website— permitting California courts to view a non-party’s conduct solely through the lens of a plaintiff's unopposed characterizations of the defendant’s alleged conduct, without regard to the separate interests of the non-party 27 (here Yelp, a publisher) in the conduct or speech being enjoined. The court rejected the cases Yelp cited solely because they involved money judgments. Op. 20-21 (citing Fazzi, 68 Cal.2d 590; Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 Cal.App.4th 110). The appellate court did not explain why Yelp should receive less protection against a prior restraint—which this Court has described as “one ofthe most extraordinary remedies knownto ourjurisprudence [which]carr[ies] a heavy burden against constitutional validity” (People v. Lucas (2014) 60 Cal.4th 153, 261, disapproved on other grounds, People v. Romero (2015) 62 Cal.4th 1; citation omitted)—than it would against a mere money judgment. As discussed below, independently, Yelp’s First Amendment right to control the content of its website easily transcends the other interests that have been held to be worthy of the protections of the Due Process clause. See Section C, infra. C. Yelp Has A First Amendment Right To Publish Reviews On Its Website. In affirming the trial court’s decision, the court of appeal declared without analysis or supporting legal authority that the injunction “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.” Op. 22. The appellate court’s faulty reasoning ignores Yelp’s importantrole as an online publisher and its strong interest in developing and maintaining a 28 trusted resource that provides helpful consumerreviewsto the public, includingcritical reviewsthat dissatisfied clients post. To support its overreach, the court purported to distinguish Marcus and Heller, but it overlooked the fundamental point of these and the many other cases that protect the right to distribute speech. Op. 22-23. The U.S. Supreme Court has recognized a First Amendmentright to distribute speech, separate from the right to make the speechin the first instance, which cannot be infringed without notice and an opportunity to be heard. See, e.g., Marcus, 367 U.S. at 731-732 (wholesale distributor of books and magazines hadright to prompt hearing in connection with seized materials); Heller, 413 U.S. at 489-490 (seizure without a prior hearing is permissible only if adequate procedural safeguards are followed). Yelp and other online forumslike it are not merely the “administrators” of their websites, whatever the court of appeal meant by this undefined term. They are publishers and editors whoseactions to disseminate speech are fully protected by the First Amendmentand due process rights. E.g., Bigelow v. Virginia (1975) 421 U.S. 809, 822 (newspaperentitled to protection of First Amendmentin publishing birth control advertisement, in part because of the public interest in the information at issue); Arkansas Educational Television v. Forbes (1998) 523 U.S. 666, 674 (“[w]hen a public broadcaster exercises editorial discretion in the selection and presentation of its programming,it engages 29 in speech activity... Although programming decisions often involve the compilation of the speech ofthird parties, the decisions nonetheless constitute communicative acts”(citations omitted)); see also footnote 8, supra.” Yelp, for example, has developed automated software designed to enhance users’ experiences by showcasing more helpful content over potentially less helpful content(like paid-for reviews). E.g., A00S519. And Yelp maintains terms of service and content guidelines that, when violated, can lead to the removalof offending content. A00561. The third-party authored reviews that Yelp hosts also serve as the basis for the aggregate Yelp star rating that each business receives, depending onthecriteria developed by Yelp andapplied through its automated software. A00519. Thefiction adopted by the court of appeal—inventinga role it coined “administrator of the forum,” which apparently has none of the constitutional protections granted to publishers—to brush aside Yelp’s clear interest in the integrity of its website was unprecedented andled to the wrong result here. The appellate court invoked Balboa Island to support its decision but this too was an unwarranted expansion of existing law. As the U.S. Supreme Court explained in Nebraska Press Ass’n v. Stuart: 2 Even the U.S. Supreme Court’s landmark decision in New York Times Co. v. Sullivan (1964) 376 U.S. 254, involved third-party speech— there, an “advertorial” published by the New York Times titled “Heed Their Rising Voices,” soliciting funds to defend the Rev. Martin Luther King, Jr. against an Alabamaperjury indictment, amongother things. Jd. at 256-257. 30 [P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendmentrights. A criminal penalty or a judgmentin a defamation case is subject to the whole panoply ofprotections afforded by deferring the impact of the judgmentunti! all avenues of appellate review have been exhausted. Only after judgmenthas becomefinal, correct or otherwise, does the law’s sanction becomefully operative. A prior restraint, by contrast and by definition, has an immediate andirreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech,priorrestraint “freezes” it at least for the time. (1976) 427 U.S. 539, 559. Similarly, in Wilson v. Superior Court (1975) 13 Cal.3d 652, 660, this Court rejected a prior restraint that prohibited further publication of a political candidate’s newslettercriticizing his opponent. Jd. at 662. The Court explained that “if publication of the Pentagon Papers did not constitute a sufficiently serious threat to justify creation of an exception to the established principles [against prior restraints] set forth above, the circulation of election campaign charges, even if deemed extravagant or misleading, does not present a dangerof sufficient magnitude to warrant a priorrestraint.” Jd. at 660; see also Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241 (order barring release of private, embarrassing, informationis prior restraint and presumptively unconstitutional); Evansv. Evans (2008) 162 Cal.App.4th 1157, 1167 (“[p]rior restraints are highly disfavored and presumptively violate the First Amendment”(citation omitted)); Associationfor Los Angeles Deputy Sheriffs v. Los Angeles 31 Times Comm’n LLC (2015) 239 Cal.App.4th 808, 821-824 (affirming order striking complaint seeking priorrestraint). Asthis Court intentionally made clear in Balboa Island, because prior restraints are disfavored, they can be entered,if at all, only following a processthat fully protects the rights of the party sought to be enjoined. 40 Cal.4th at 1155-1156. “‘An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin- pointed objective permitted by constitutional mandate and the essential needs ofthe public order. In this sensitive field, the State may not employ ‘meansthat broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ ... In other words, the order must be tailored as precisely as possible to the exact needs of the case.” Jd. at 1159 (quoting Princess Anne, 393 U.S. at 183-184). In Balboa Island, the Court approved an order enjoining the repetition of a statementfound to be defamatory at a contestedtrial, although it also found part to be invalid because it applied to the defendant and “all other persons in active concert and participation with her,” but no evidence in the record supported a finding that anyone else made defamatory statements. Jd. at 1158, 1160. Here, unlike in Balboa Island, the court approveda priorrestraint (i) against a non-party that had no notice or opportunity to opposethe prior restraint(ii) following a default judgment, not a contested trial, (iii) based on an Orderthat did not evaluate any of the individual statements to 32 determineifthey are false, defamatory, and unprivileged. A00211. Cf Barrett, 40 Cal.4th at 57 (“[dJefamation law is complex, requiring consideration of multiple factors”). Balboa Island does not support the prior restraint entered against Yelp here, nor should it be expanded beyond its unique application. Neither this Court nor the U.S. Supreme Court has alloweda prior restraint on speech to stand—evenagainst threats to national security— unless the enjoined party received the full panoply of protections required by the U.S. and California Constitutions. The appellate court’s decision approvinga prior restraint here, based on nothing more than an uncontested default proceeding following no notice to Yelp and questionable notice to defendant (A00026)flies in the face of the federal and state decisions that have uniformly concludedthat prior restraints on speech are among the most egregious and least defensible orders that can be entered by a court. Noneofthe appellate court’s reasons for affirming the prior restraint entered against Yelp withstand scrutiny. Its Opinion should be reversed andthe trial court should be directed to enter an order granting Yelp the relief it sought—vacating the Judgmentto the extentthat it ordered Yelp to take any action on the contentit publishes on its website. A00237-238. 33 V. SECTION 230 BARS THE INJUNCTION AGAINST YELP BASED ON COMMENTSPOSTED BY “BIRDZEYEB.” AND “J.D.” The Internet has effected one of the greatest expansionsoffree speech and communicationsin history. It is “a tool for bringing together the small contributions of millions ofpeople and making them matter.”!? Today, nearly 3.5 billion people use the Internet, submitting and viewing hundreds of millions ofposts, comments, photos, videos and other content every day.'* As the U.S. Supreme Court putit, “the content on the Internet is as diverse as human thought.” Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 852 (citation omitted). This is no accident. In 1996, to promotethe 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 provideras the “publisher or speaker”ofthird-party content. 47 U.S.C. § 230(c)(1). BTev Grossman, You—Yes, You—Are TIME’s Person ofthe Year, TIME MAGAZINE(Dec.25, 2006). 14 «Internet Users,” Internet Live Stats, available at http://www.internetlivestats.com/internet-users/ (visited October 31, 2016); see also Mary Maddenand Kathryn Zickuhr, 65% ofonline adults use social networking sites (Aug. 26, 2011), availableat http://pewinternet.org/Reports/201 1/Social-Networking-Sites.aspx (as of 2011, 65% of online adults used social networking sites); Josh James, How Much Data Is Created Every Minute? (June 8, 2012), available at http://www.domo.com/blog/20 12/06/how-much-data-is-created-every- minute/?dkw=socf3. 34 Groundedin core First Amendmentprinciples, Section 230 offers strong protection for innovation and expansion of free speech on the Internet. A. Section 230 Protects Online Publishers From All Legal Actions Based On Third-Party Content. Section 230 was adopted to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computerservices, 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). To achieve these and other goals, Congress barred any claims against website publishers based on the publication of third-party content—i.e., content not created by the website operatoritself, 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 pursuethe author ofthat content, but not the entity that displays it on the Internet. See 47 U.S.C. § 230(c)(1); see generally Carafanov. Metrosplash.com Inc. (9th Cir. 2003) 339 F.3d 1119, 1124 “‘Carafano”) (protecting website where “the selection of the content wasleft exclusively to the user”). 35 This Court recognized that purpose in its only decision interpreting Section 230, Barrett v. Rosenthal, holding that Section 230 “precludes courts from entertaining claims that would place a computer service providerin a publisher’s role. Thus, lawsuits seeking to hold a service providerliable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” 40 Cal.4th at 43-44 (citing Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (“Zeran’”)). The Court invoked “the congressionalfinding that the Internet hasflourished ‘with a minimum ofgovernmentregulation’ (§ 230(a)(4)), and the policy statement favoring afree marketfor interactive computer services ‘unfettered by Federalor State regulation’ (§ 230(b)(2))” to support its decision rejecting liability there. Jd. 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] imposingtort liability on companiesthat serve as intermediaries for other parties’ potentially injurious messages.’” Id. Asthis Court discussed in Barrett, Section 230 grew out of cases early in thelife of the Internet that attempted to adapt commonlaw tort liability principles to Internet publishers. 40 Cal.4th at 44. In 1995, “a service provider washeld liable for defamatory comments posted on one of its bulletin boards, based on a finding that the provider had adoptedthe role 36 of ‘publisher’ by actively screening and editing postings.” Jd. (citing Stratton Oakmont, Inc. v. Prodigy Servs. Co. (N.Y. Sup. 1995) 1995 WL 323710, at *4). The Court explainedthat, ““[flearing that the specter of liability would ... deter service providers from blocking and screening offensive material, Congress enacted § 230’s broad immunity,’ which ‘forbids the imposition of publisherliability on a service provider for the exercise of its editorial and self-regulatory functions.’” Jd. (citing Zeran, 129 F.3d at 331). Indeed, Congressleft few doubts aboutits intentions. The legislative history expressly stated that Congress intended to overrule Stratton Oakmont “and any other similar decisions which have treated such providers and users as publishers or speakers ofcontentthat is not their own becausethey haverestricted access to objectionable material.” See S. Conf. Rep. No. 104-230 (1996) (emphasis added). To accomplish its broad goals, Section 230 provides that “[n]o provideror 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. 37 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 “encourageservice providersto self-regulate the dissemination of offensive material over their services.... In line with this purpose, § 230forbids the imposition of publisher liability on a service providerfor the exercise ofits editorial and self-regulatoryfunctions.” Id. (emphasis added); accord Carafano, 339 F.3d at 1122-23; Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1027-28 (‘“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.'> As the Ninth Circuit explained, “close cases ... must be resolved in favor of immunity, > See, e.g., Doe v. Backpage.com, LLC(Ast Cir. 2016) 817 F.3d 12, 22; Universal Comme’n Sys., Inc. v. Lycos, Inc. (1st Cir. 2007) 478 F.3d 413, 419; Ricci v. Teamsters Union Local 456 (2d Cir. 2015) 781 F.3d 25, 28; Green v. America Online, Inc. (3d Cir. 2003) 318 F.3d 465, 470-72; Zeran, 129 F.3d at 330-32; Doe v. MySpace, Inc. (Sth Cir. 2008) 528 F.3d 413, 418; Jones v. Dirty World Entm’t Recordings LLC (6th Cir. 2014) 755 F.3d 398, 408; Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc. (7th Cir. 2008) 519 F.3d 666, 671 (“Chicago Lawyers’’); Johnson v. Arden (8th Cir. 2010) 614 F.3d 785, 792; Carafano, 339 F.3d at 1125; Batzel, 333 F.3d at 1031-32; Ben Ezra, Weinstein, & Co. v. America Online Inc. (10th Cir. 2000) 206 F.3d 980, 984-86 (“Ben Ezra”); Almeida v. Amazon.com, Inc. (11th Cir. 2006) 456 F.3d 1316, 1321; Klaymanv. Zuckerberg (D.C. Cir. 2014) 753 F.3d 1354, 1358. 38 lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—oratleast tacitly assented to—theillegality of third parties.” Fair Hous. Council ofSan Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157, 1174 (en banc). In each of these decisions, the appellate court properly focused on the author of the content—rather than the 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 imposingtort 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. (4th Cir. 2009) 591 F.3d 250, 254-255 (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 Baizel, 333 F.3d at 1031. In Barrett, relying heavily on federal decisions such as Zeran, this Court broadly construed the federal statute to reject both the appellate court’s distinction between publishers and distributors for purposes of Section 230 immunity, and the notice-basedliability urged by the plaintiff 39 there.'® The Court explained that “{b]ecause the probable effects of distributorliability on the vigor of Internet speech and on service provider self-regulation are directly contrary to § 230’s statutory purposes, we will not assume that Congress intendedto leaveliability upon notice intact.” Id. at 46 (citing Zeran, 129 F.3d at 333). The Court agreed with cases that followed Zeran, explaining that “Congress contemplated self-regulation, rather than regulation compelled at the sword pointof tort liability.” Jd. at 46-47, 53.'’ The Court agreed with the concern noted in Zeranthat “[njotice-basedliability for service providers would allow complaining parties to impose substantial burdens on the freedom of Internet speech by lodging complaints whenever they were displeased by an onlineposting,” explaining that “[t]he volume and rangeof Internet communications make the ‘heckler’s veto’ a real threat under the Court of Appeal’s holding.” Jd. at 57-58 (citations omitted). Those same problems would find new life in California if this Court approvedthe no-notice injunction that the appellate court allowedhere. '6 This Court was reviewingthe court of appeal’s holding that ISPs and users “are exposedto liability if they republish a statement with notice of its defamatory character.” 42 Cal.4th at 39. '7 The Court supported its decision, in part, by the U.S. Congress’s express approvalofthe broad interpretation of Section 230(c) in cases such as Zeran, Ben Ezra and Doe v. America Online (Fla. 2001) 783 So.2d 1010. Barrett, 40 Cal.4th at 54 & n.17 (citations omitted). In extending the reach of Section 230 in 2002, Congress stated that “[t]he Committee intends these interpretations of section 230(c) to be equally applicable to those entities covered by” the new law. Jd. (citation omitted). 40 That is why, in this Court’s words, the statute is so broad as to provide “blanket immunity for those who intentionally redistribute defamatory statements on the internet.” Barrett, 40 Cal.4th at 62-63. It does so “to protect online freedom of expression and to encourage self-regulation, as Congress intended.” Jd. at 63. B. Yelp Established Its Right To Section 230 Immunity. Asdiscussed above, under Section 230, “[nJo provider or user of an interactive computerservice shall be treated as the publisher or speaker of any information provided by another information content provider,” and separately “any state law, including imposition oftort liability, that is inconsistent with its protections,” is preempted. 47 U.S.C. §§ 230(c)(1) & (e)(3) (emphasis added). Thestatute defines “interactive computer service” as “any information service, system, or access software providerthat provides or enables computer access by multiple users to a computer server,” 47 U.S.C. § 230(£)(2), and “Internet content provider” as “any personor entity that is responsible, in wholeorin part, for the creation or development of information provided throughthe Internet or any other interactive computer service.” Jd. § 230(f)(3). An “access software provider”is “a provider of ... enabling tools that ... pick, choose, analyze or digest content; or transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.” Jd. § 230(f(A). 4] Thus, while a plaintiff may pursue remedies against the creator of allegedly unlawful online content, that plaintiff may not pursue claims of any form against website publishers whoare (1) a “provideror user of an interactive computer service”; (2) where plaintiff seeks to treat the website publisheras a “publisher or speaker”; and (3) the action is based on “information provided by another information content provider.” 47 U.S.C. § 230(c)(1); see Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830. Section 230 bars the injunction against Yelp, as well as any liability for failing to comply with the injunction. First, Yelp qualifies as a provider of “an interactive computer service” because it operates a website. Universal Commce’n Sys., 478 F.3d at 419 (“web site operators ... are providers of interactive computer services within the meaning of Section 230”); Batzel, 333 F.3d at 1030 n.16. Second(addressing the third requirement for the statute to apply), “Birdzeye B.” and “J.D.”—the users who posted comments on Yelp—are “information content providers” because they are wholly responsible for the creation ofthe content of the comments. See 47 U.S.C. § 230(f(3)."8 '8 See also, e.g., Doe Il v. MySpace Inc. (2009) 175 Cal.App.4th 561, 572-73 (website, as publisher of third-party content, had immunity, and decision “to restrict or make available certain material is expressly covered by section 230”); Hupp v. Freedom Commce’ns, Inc. (2013) 221 Cal.App.4th 398, 400, 405 (Section 230 barred a lawsuit where the plaintiff alleged a newspaper “breachedits user agreement with [plaintiff] by failing to remove comments made on their website concerning” him where the comments were written and posted by third parties); Delfino v. Agilent 42 Hassell has neveralleged, and cannot, that Yelp played any role in the authorship ofBirdzeye B. or J.D.’s comments.” Third—andthe key issue before this Court—the injunction against Yelp treats it as a publisher or speaker. As the Fourth Circuit explained in Zeran, “[p]ublication does not only describe the choice by an authorto include certain information. In addition, both the negligent communication of a defamatory statement and the failure to remove such a statement when first communicated by another party—each alleged by Zeran here under a negligence label—constitute publication.” 129 F.3d at 332 (citations Techs., Inc. (2006) 145 Cal.App.4th 790, 807-08 (Section 230 immunity applied to claims brought by recipients of Internet threats against the transmitter of threats and his employer, whose computer system he used); Shiamili v. Real Estate Group ofNew York, Inc. (N.Y. 2011) 17 N.Y.3d 281, 285, 293 (website that “promoted”a user’s allegedly defamatory comment to a stand-alone post accompaniedbyan insulting illustration and some content remained immune from suit under Section 230; the “added headings andillustration do not materially contribute to the defamatory nature of the third-party statements”). '? Tn the briefing below, Hassell concededthat Yelp is a provider of interactive computer services, and that she is seeking to treat Yelp as the publisher or speaker of information provided by readers. A00486:27- A00488:13. She argued that Yelp should not be immune becauseit “is actively participating in promoting the defamation ofPlaintiffs.” A00486:19-20. While Hassell did not analyze the provisions of Section 230 or rely on any case law, she seemedto be articulating an argumentthat Yelp was an “information content provider,” and was therefore not shielded from liability. The statute defines an information content provider as any party “responsible ... in part” for the “creation or development of information.” 47 U.S.C. § 230(f)(3). The court of appeal did not adopt this argumentin its Opinion, concluding instead that Section 230 does not apply becausethe injunction does not impose anyliability on Yelp. Op.28. BecausePlaintiff did not seek this Court’s review of the appellate court’s implicit rejection of these arguments, Yelp will not address them. 43 omitted). So too here. As discussed below,in concluding otherwise, the court of appeal misread Section 230, drastically altering its application in California. Section C, infra. Cc. The Appellate Court’s Interpretation Ignores And Misconstrues Key Parts Of Section 230. In holding that Section 230 does not protect Yelp, the appellate court invoked the unique procedural posture of this case—the result of Hassell’s tactical decision to deny Yelp the opportunity to defend itself—explaining that “[n]either party cite[d] any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoinsthe originator of defamatory statements posted on the service provider’s Website.” Op. 28. This circular reasoning only rewards Hassell’s disdain for due process. It ignores the fact that to obtain a remedy against Yelp—theinjunction that the appellate court approved— Hassell was required to state a claim against Yelp. Here, the defamation claim that Hassell asserted in an attempt to obtain that relief was not alleged against Yelp, but regardless, the resulting order against Yelp is barred by Section 230’s plain language. Hassell’s claims must be rejected because they contravene the mandate of Section 230 that “[nJo provider or user of an interactive computer service shall be treated as [a] publisher or speaker....” 47 U.S.C. § 230(c)(1). 44 Asthis Court explained in Barrett, the Court “cannot construe the statute so as to render [language] inoperative.” 42 Cal.4th at 59 (citing Duncan v. Walker (2001) 533 U.S. 167, 174; Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715-716). There, the Court rejected plaintiff's reading of Section 230 becauseit “fails to accountfor the statutory provision at the center of our inquiry: the prohibition in section 230(c)(1) against treating any ‘user’ as ‘the publisher or speaker of any information provided by another information content provider.’” Jd. at 60. The Court summarized: Section 230 has beeninterpretedliterally. It does notpermit Internet service providers or users to be sued as ‘distributors,’ nor does it expose ‘active users’ to liability. Plaintiffs are free under section 230 to pursue the originator of a defamatory Internet publication. Any further expansion of liability must await congressional action. Id. at 63 (emphasis added). See also, e.g., Chicago Lawyers, 519 F.3d at 671 (reading Subsection (c)(1) literally to bar claims under Fair Housing Act because “only in a capacity as publisher could Craigslist be liable”); Dart v. Craigslist, Inc. (N.D. Tl. 2009) 665 F.Supp.2d 961, 969 (rejecting claims against Craigslist based on allegedly illegal adult advertisements because complaint’s allegations “plainly treat Craigslist as the publisher or speaker of information created by its users”). “Plaintiffs who contend they were defamedin an Internet posting may only seek recoveryfrom the original source ofthe statement” (Barrett, 40 Cal.4th at 40 (emphasis 45 added)), because “Congress has decided that the parties to be punished and deterred are not the internet service providers but rather are those who created and posted the illegal material” (AZ_A. ex rel. P_K. v. Village Voice Media Holdings, LLC (E.D. Mo. 2011) 809 F.Supp.2d 1041, 1055). Before the court of appeal rejected Section 230’s application in this case, California courts were in accord. “If by imposingliability ... we ultimately hold eBay responsible for content originating from other parties, we would betreating it as the publisher, viz., the original communicator, contrary to Congress’s expressed intent ...” Gentry, 99 Cal.App.4th at 831 (citations omitted); see also Doe IT, 175 Cal.App.4th at 563, 572-573 (“appellants want MySpace to regulate what appears on its Website” and “It]jhat type of activity—torestrict or make available certain material—is expressly covered by section 230”); Delfino, 145 Cal.App.4th at 807 (rejecting claims against website publisherthat “treatedit ‘as the publisher or speaker’ (§ 230(c)(1)) of Moore’s messages”(citations omitted)).”° 20 Accord Murawski v. Pataki (S.D.N.Y. 2007) 514 F.Supp.2d 577, 591 (“Deciding whether or not to remove content or deciding when to removecontentfalls squarely within Ask.com’s exercise of a publisher’s traditional rule and is therefore subject to the CDA’s broad immunity” (citations omitted)); Backpage.com, LLC v. Cooper (M.D. Tenn. 2013) 939 F.Supp.2d 805, 828-829 (CDA preemptedstate law that “conflicts with Congress’s intent in enacting CDAsection 230 becauseit imposesliability on websites acting as publishers of third-party information and creates a regimethat will likely restrict speech and undermineself-policing that already occurs online”). 46 The Ninth Circuit’s analysis of Section 230 in Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096is instructive. There, the court affirmed dismissal of claims for negligent undertaking based onallegations that defendant failed to abide by its promise to removeallegedly illicit content. Id, at 1103, 1106. Rejecting plaintiffs argument that her claims did not seek to hold defendant liable for publication, but instead for failing to perform its alleged undertaking, the court explained that “what mattersis whether the cause ofaction inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another.” Jd. at 1101-02. Analyzing what a publisher does, the court explained that “one does not merely undertake; one undertakes to do something.” Jd. at 1103 (emphasis in original). Thus, “the duty that [plaintiff] claims [defendant] violated derives from [defendant’s] conduct as a publisher—thestepsit allegedly took, but later supposedly abandoned, to de-publish the offensive profiles. It is because such conduct is publishing conduct that we have insisted that section 230 protectsfrom liability ‘any activity that can be boiled down to deciding whether to exclude material that thirdparties seek to post online.’” Id. at 1103 (citing Roommates, 521 F.3d at 1170-71; emphasis added). The Court emphasized that “Subsection (c)(1), by itself, shields from liability all publication decisions, whetherto edit, to remove, or to post, with respect to content generated entirely by third parties.” Jd. at 1105 (emphasis added). 47 Here, the court of appeal drastically departed from these rulings by misreading subsection (e)(3) of Section 230 andtreating it as a limitation on the broad immunity established by subsection (c)(1). The court held that Section 230 did not apply to the prior restraint it imposed on Yelp “because [the court did] not impose any liability on Yelp, either as a speaker or a publisher of third-party speech.” Op. 29. But Yelp is namedin the injunction only for its role as publisherofthe third-party reviewsat issue, a straightforward contradiction of subsection (c)(1)’s prohibition on treating Yelp as the speaker or publisher of third-party content on its website. Subsection (e)(3) does not limit the broad immunity provided by subsection (c)(1), as the court of appeal implicitly held. It merely affirmsthe ability of state courts to entertain state law claimsthat are “consistent” with Section 230, while making clear that “inconsistent” state law claimsandliability are barred.’ The court of appeal’s misreading of subsection (e)(3) renders subsection (c)(1) meaningless. Barrett, 42 Cal.4th at 59. The court of appeal’s decision to treat subsection (e)(3) as establishing the scope of immunity underminesthe broad protection that Congress intended for online publishers like Yelp. “I Furtherillustrating the court of appeal’s misreading,if section (e) encapsulated Section 230 immunity, then Section 230 would not bar federal civil claims. Plainly, that is not the case. E.g., Roommates.com, 521 F.3d at 1170-71 (Section 230 applied to claims under Fair Housing Act); Chicago Lawyers, 519 F.3d at 672 (same); Sikhsfor Justice “SFJ”, Inc.v. Facebook, Inc. (N.D. Cal. Nov. 13, 2015) 144 F.Supp.3d 1088 (Section 230 barred federal and state claims). 48 The court’s conclusion that “[i]f an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp” (Op. 30)—relying on the fiction that the injunction against Yelp was not actually an injunction against Yelp (see footnote 5, supra)—exposes another fundamental flaw in its decision. The court of appeal reachedits result only by violating subsection (c)(1) and treating Yelp as if it was the author (or “speaker”) of the reviews at issue. It held that Yelp could be enjoined, without notice or an opportunity to be heard, undera limited legal principle that allows courts to extend injunctions to non-parties who act on behalfofparties in violating the injunction. The court concluded that Yelp was acting “with orfor” Bird as the publisher ofthe statements at issue. Op. 30-31 (citing Conrad, 55 Cal.App.4th at 903); see Section IV.B, supra. Thisis, at its core, treating Yelp as if it, rather than simply Bird, published the allegedly defamatory content. The court’s due process and Section 230 holdings are fundamentally at odds with each other, resulting in a confusing and contradictory interpretation of each of these legal principles. The appellate court also erred in concluding that Section 230 does not apply to requests for injunctive relief. Op. 28. The court held that the injunction “does not violate section 230 becauseit does not impose any liability on Yelp,” elaborating that “Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damagesandinjunctiverelief against Bird, not Yelp.” Jd. Thus,it 49 held that the liability that would flow out of contempt proceedings if Yelp fails to abide by the injunction is not within the scope of Section 230 immunity. But this explanation—keyto the ultimate decision—is simply incorrect. The relief that Hassell obtained against Yelp can only be characterized as an injunction based on Yelp’s activities as a publisher. See footnote 5, supra. Courts across the nation consistently have concluded that Section 230 bars injunctiverelief, as well as tort and contract liability. As one court explained, “[a]n 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. (Fla. Dist. Ct. App. 2014) 152 So.3d 727, 729, 730-731 (rejecting action for declaratory and injunctive relief based on Section 230). In the only California case to address the issue, Kathleen R., 87 Cal.App.4th at 697-698, the court 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 makeservice providers liable for information originating with a third-party user ofthe service.” Jd. at 692, 697-698 (citation, internal quotes omitted; bracketed citation in original). Noting that “claims 50 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.” Jd. at 698. Plaintiff's equitable claims there “contravene[d] section 230’s stated purpose ofpromoting unfettered developmentofthe Internet no less than her damage claims.” Jd. 22 As the court explained in Noah v. AOL Time Warner(E.D.Va. 2003) 261 F.Supp.2d 532, 538-39, aff'd (4th Cir. Mar. 24, 2004) 2004 WL 602711, “given that the purpose of § 230 is to shield service providers from legal responsibility for the statements ofthird parties, § 230 should not be read to permit claims that request only injunctive relief. After all, in some circumstancesinjunctiverelief will be at least as burdensometothe service provider as damages,andis typically more intrusive.” Id. at 540; see id. at 538-39 (in seeking to hold defendantliable for refusing to intervene to stop 2 See also Ben Ezra, 206 F.3d at 983, 986 (Section 230 barred claims for damagesandinjunctive relief); Hinton v. Amazon.com.dedc, LLC (S.D. Miss. 2014) 72 F.Supp.3d 685, 687, 692 (claims seeking injunctive relief and damagesbasedonallegedly selling recalled hunting equipmentbarred by Section 230); Dart v. Craigslist, Inc. (N.D.Ill. 2009) 665 F.Supp.2d 961, 963, 969 (rejecting public nuisance claim,including request for injunctive relief); Smith v. Intercosmos Media Group (E.D.La. 2002) 2002 U.S. Dist. LEXIS 24251, 2002 WL 31844907, *13-14 (rejecting injunction claim against ISP based on alleged failure to block purportedly fictitious domain registrants (citing Kathleen R., 87 Cal.App.4th at 697-698)); Giordano v. Romeo (Fla. Dist. Ct. App. 2011) 76 So.3d 1100, 1102 (rejecting claims for defamation and injunctive relief); Shiamili, 17 N.Y.3d at 285, 293 (rejecting defamation claim based on a blog post, seeking damages andinjunctiverelief); Reit v. Yelp! (N.Y. Supr. 2010) 907 N.Y.S.2d 411, 415 (rejecting request for preliminary injunction, and granting Yelp’s motion to dismiss complaint). 51 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)).” Hassell admitted below that there is “vibrant, extensive national jurisprudence on section 230.” Respondents’ Appeal Brief (“R.A.B.”) at 43. Yet, Hassell did not cite a single case to support her proposition that the CDA allows interactive computer services to be subject to injunctions to remove third-party content so long as they are not namedin an action. Courts across the Nation consistently have rejected liability for the mere hosting of defamatory speech authored by third parties—whichis not surprising, given that Section 230(c)(1) flatly prohibits such a result. Plaintiffs also typically satisfy the basic due process requirements that should have protected Yelp here. In the end, Hassell’s demand for 3 Yelp is aware of only twocases to suggest otherwise—bothin dicta without any analysis. In Mainstream Loudoun v. Board ofTrustees of Loudoun (E.D. Va. 1998) 2 F.Supp.2d 783, the court held that Section 230(c)(2)—a separate subsection not at issue in this case—doesnot protect governmententities. Jd. at 790. In dicta, the court said that evenif it did, “defendants cite no authority to suggest that the ‘tort-based’ immunity to ‘civil liability’ described by § 230 would barthe instant action, whichis for declaratory and injunctiverelief.” Jd. (citing § 230(a)(2); Zeran, 129 F.3d at 330). As the court in Kathleen R. later pointed out, 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. In Does v. Franco Prods. (N.D.Ill. June 22, 2000) 2000 WL 816779, *5, the court merely cited Mainstream Loudoun tostate in dicta that “Plaintiffs’ claims for injunctive relief, although not precluded by the CDA,fail to state a claim.” 52 injunctive relief against Yelp fails because it is entirely based on Hassell’s claim that Yelp published defamatory speech, but Section 230 barsall such claims. Norisit relevant that many cases applying Section 230 to defamation claims involve “allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had,in fact, been made by suchthird party on the Internet service provider’s website.” Op. 30. This case was able to proceed to a default judgment only because one of Hassell’s targets—the one that had the financial wherewithal to defend against her demand for an injunction—was purposefully not namedas a party or served with process in the case, and therefore could not prevent a result that is plainly barred by Section 230. Underbasic due process principles, Yelp is not bound bya finding that defendant’s statements are defamatory becauseit was not party to the proceedingsthat gaverise to that finding. Section IV.A, supra. In any event, the court’s reasoning ignores the language of the CDA, which assumesthat the statements are actually defamatory, but provides immunity regardless. See Barrett, 40 Cal.4th at 39-40. This is a distinction without a difference, which only serves to inject confusion and ambiguity into Section 230 jurisprudence. Finally, the court of appeal’s conclusion that Section 230(e)(3)’s reference to “liability” does not extend to contempt sanctions also must be 53 flatly rejected. Op. 31. Section 230(e)(3) prohibits both liability and “cause[s] of action” against website publishers like Yelp, to protect them “from having to fight costly and protracted legal battles.” Roommates, 521 F.3d at 1174-75. See also Nemet Chevrolet, 591 F.3d at 254-55 (Section 230 provides an “immunity from suit,” not merely a “defenseto liability’). This goal plainly is not served by a ruling that permits prior restraints to be entered against website publishers like Yelp without any advance notice or opportunity to be heard. Section IV.C, supra. But even if Section 230(e)(3) only barred liability, the appellate court still would be wrong becauseit ignored the plain meaning of “liability’—“legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.” Liability, Black’s Law Dictionary (10th ed. 2014). See also Noah, 261 F.Supp.2d at 540 (injunctive relief “is typically more intrusive” than damage awards). Indeed, American courts long have recognized the uniquely pernicious dangersofpriorrestraints on speech. See Section IV.C, supra. The appellate court’s conclusion that prior restraints are allowed whereliability is barred turns the First Amendmentonits head. The Ninth Circuit recently again rejected gamesmanship that attempts to circumvent Section 230. Kimzey v. Yelp! Inc. (9th Cir., Sep. 2, 2016) 836 F.3d 1263, 2016 U.S. LEXIS 16665. There, the court rebuffed plaintiffs attempts “to plead around the CDA,” “declin[ing] to open the 54 39°66 door to such artful skirting of the CDA’s safe harbor provision,” “given congressional recognition that the Internet serves as a ‘forum fora true diversity of ... myriad avenuesfor intellectual activity’ and ‘ha[s] flourished ... with a minimum of government regulation.’” Jd. at *4 (citations omitted). As the Court explained,“[i]t cannot be the casethat the CDAandits purpose ofpromoting the ‘free exchange of information and ideas overthe Internet’ could be so casually eviscerated.” Jd. at *11 (citing Carafano, 339 F.3d at 1122). Affirming the appellate court’s decision, in contrast, would emboldenthe kind of abusethat already is happening across the country at the behest of businesses determined to scrub critical reviews from websites like Yelp’s. For example, a reputation management companyhired by a Georgia dentist unhappy with a negative review fraudulently obtained a judgmentand injunction in Maryland, which was then presented to Yelp with a request that Yelp remove the review. RJN Exs. A-B. A lawsuit recently filed in Northern California details the work of such reputation managementfirms, which allegedly are suing pseudo-defendants to obtain stipulated judgments removing reviews and similar content from websites, then presenting those judgments to websites to demand that the content be removed. RJN Ex. C; see also RJN Exs. D-G (discussing similar actions across the country). Efforts to manipulate court systems and scrubcritical 55 reviews from the Internet will thrive—in California in particular—ifthis Court approves the no-notice injunction entered against Yelp here. Asthis Court explained in Barrett, “{a]dopting a rule ofliability under section 230 that diverges from the rule announced in Zeran and followed in all other jurisdictions would be an openinvitation to forum shopping by defamation plaintiffs.” 40 Cal.4th at 58 & n.18 (citation omitted; emphasis added). Here too, this Court should adhereto the consistent interpretation of federal courts across the Nation, and broadly construe Section 230 to barthe injunctive relief against Yelp that was ordered here. VI. CONCLUSION This Court’s admonition a decade ago in Barrett applies just as forcefully now. “The Court ofAppeal gave insufficient consideration to the burden its rule would impose on Internet speech. ... Congress sought to ‘promote the continued developmentofthe Internet and other interactive computerservices’” by granting broad immunity to “Internet intermediaries” such as Yelp. 40 Cal.4th at 56 (citations omitted). MI 56 Forall of the foregoing reasons, Yelp respectfully requests that the Court reverse the orders ofthetrial court and appellate court, and direct those courts to enter an order granting Yelp’s Motion to Vacate the Judgment. Dated: November 21, 2016 DAVIS WRIGHT TREMAINE LLP Thomas R. Burke Rochelle L. Wilcox By: bxrhlh Z. LL ea* Rochelle L. Wilcox Attorneys for Non-Party Appellant YELP INC. 57 CERTIFICATE OF WORD COUNT (Cal. Rules of Court 8.504(d)) Thetext of this brief consists of 13,914 words as counted by the Microsoft Word word-processing program usedto generate this brief, including footnotes but excluding the tables, the cover information required by Rule 8.204(b)(10), the quotation of issues required by Rule 8.520(b)(2), this certificate, and the signature block. Dated: November21, 2016 DAVIS WRIGHT TREMAINE LLP ThomasR. Burke Rochelle L. Wilcox By: OA ZK Dan Laidman Attorneys for Non-Party Appellant YELP INC. 58 DWT 30504686v7 0100262-000003 DWT30504686v7 0100262-000003 PROOF OF SERVICE I, Ellen Duncan,declare under penalty ofperjury under the laws of the State of California that the following is true and correct: Iam employedin the City and County of Los Angeles, State of California. I am over the age of eighteen (18) years, and not a party to or interested in the within-entitled action. I am an employee of Davis Wright Tremaine LLP, 865 South Figueroa Street, Suite 2400, Los Angeles, CA 90017. I caused to be served a true and correct copy of YELP INC.’S OPENING BRIEF ON THE MERITSoneachperson onthe attached list by the following means: On November19, 2016, I enclosed a true and correct copy of said documentin an envelope with postage fully prepaid for deposit in the United States Postal Service. I placed such envelope(s) with postage thereon fully prepaid for deposit in the United States Mail in accordance with the office practice of Davis Wright Tremaine LLP,for collecting and processing correspondence for mailing with the United States Postal Service. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on November 18, 2016 at Los Angeles, California. GAbir Ellen Duncan SERVICE LIST Monique Olivier, Esq. Attorneysfor Duckworth Peters Lebowitz Olivier LLP Plaintiffs and Respondents 100 Bush Street, Suite 1800 DawnHassell, et al. San Francisco, CA 94104 Email: Moniqgue@dplolaw.com Nitoj Singh, Esq. Dhillon Law GroupInc. 177 Post Street, Suite 700 San Francisco, CA 94108 Email: nsingh@dhillonsmith.com Hon. Ernest Goldsmith Case No.: CGC-13-530525 Dept. 302 San Francisco Superior Court Civic Center Courthouse 400 McAllister Street San Francisco, CA 94102-4514 Court of Appeal Case No. A143233 First Appellate District, Div. Four 350 McAllister Street San Francisco, CA 94102