No. S235968
IN THE SUPREME COURT
OF THE
STATE OF CALIFORNIA
DAWN HASSELL, et al.
Plaintiffs and Respondents,
v.
AVA BIRD,
Defendant,
YELP, INC,
Appellant.
On Review from the Court of Appeal
for the First Appellate District,
Division One, 1st Civil No. A143233
After an Appeal from the
Superior Court for the State of California,
County of San Francisco, Case Number CGC-13-530525,
Hon. Ernest H. Goldsmith
APPLICATION TO FILE AMICI CURIAE BRIEF,
AND BRIEF OF AMICI CURIAE PUBLIC CITIZEN, INC.,
AND FLOOR64, INC., IN SUPPORT OF APPELLANT
Of counsel:
Paul Alan Levy
Public Citizen Litigation Group
1600 20th Street NW
Washington, D.C. 20009-1001
(202) 588-1000

JUELSGAARD INTELLECTUAL PROPERTY
AND INNOVATION CLINIC
Mills Legal Clinic at Stanford Law School
Phillip R. Malone (CA Bar No. 163969)
Jef Pearlman (CA Bar No. 254759)
Daniel Chao (CA Bar Student Cert. No. 42461)
Erica Sollazzo (CA Bar Student Cert. No. 40030)
Crown Quadrangle, 559 Nathan Abbott Way
Stanford, California 94305-8610
Telephone: (650) 724-1900
Facsimile: (650) 725-0253
Attorneys for Amici Curiae

 TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................3
APPLICATION TO FILE AMICI CURIAE BRIEF IN SUPPORT
OF APPELLANT YELP..........................................................7
INTRODUCTION .......................................................................... 11
STATEMENT OF FACTS AND PROCEEDINGS BELOW ........ 11
ARGUMENT .................................................................................. 15
I.

Section 230 Immunizes Interactive Computer Service
Providers Like Yelp Both from Monetary Damages and
from Being Compelled to Remove Content Posted by Their
Users. .................................................................................... 15

II.

Section 230 Plays an Important Role in Protecting Online
Content Against a Heckler’s Veto and Encouraging SelfRegulation. ........................................................................... 18

III.

The Lower Court’s Ruling Is Especially Troubling in Light
of the Recent Rise of Litigation Strategies Aimed at
Circumventing § 230. ........................................................... 24
A.

Orders Entered for the Admitted Purpose of
Circumventing § 230. ........................................................25

B.

Default Judgments Obtained Without Fair Process. .......29

C.

Cases of Outright Forgery to Obtain Consent Orders. ....39

CONCLUSION ............................................................................... 43

2

 TABLE OF AUTHORITIES
CASES
Barnes v. Yahoo!, Inc.,
570 F.3d 1096 (9th Cir. 2009) .................................................... 17
Barrett v. Rosenthal,
146 P.3d 510 (Cal. 2006) ................................................ 16, 18, 20
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) .................................................... 15
Ben Ezra, Weinstein & Co. v. Am. Online, Inc.,
206 F.3d 980 (10th Cir. 2000) .................................................... 16
Blockowicz v. Williams,
630 F.3d 563 (7th Cir. 2010) ................................................ 26, 27
Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119 (9th Cir. 2003) .............................................. 17, 18
Chicago Lawyers Comm. v. Craigslist,
519 F.3d 666 (7th Cir. 2008) ...................................................... 19
Elkind v. Byck,
439 P.2d 316 (Cal. 1968) ............................................................ 42
Financial Rescue LLC v. Smith,
No. 15-006119-CI (Fla. Cir. Ct. 2015) ....................................... 40
Giordano v. Romeo,
76 So. 3d 1100 (Fla. App. 2011) ........................................... 27, 28
Green v. Am. Online,
318 F.3d 465 (3d Cir. 2003) ....................................................... 16
Jane Doe No. 1 v. Backpage.com,
817 F.3d 12 (1st Cir. 2016) ........................................................ 16
3

 Jones v. Dirty World Entm’t Recordings,
755 F.3d 398 (6th Cir. 2014) ...................................................... 16
Kinda v. Carpenter,
203 Cal. Rptr. 3d 183 (Ct. App. 2016) ....................................... 34
Krinsky v. Doe 6,
72 Cal. Rptr. 3d 231 (Ct. App. 2008) ......................................... 34
Noah v. AOL Time Warner,
261 F. Supp. 532 (E.D. Va. 2003) ........................................ 16, 17
Permanent Inj., Blockowicz v. Williams, No. 09-C-3955
(N.D. Ill. June 10, 2009) ............................................................. 26
Rescue 1 Financial LLC v. John Doe,
No. CACE-14-024286 (Fla. Cir. Ct. 2014) ................................. 32
Small Justice LLC v. Xcentric Ventures LLC,
No. 13-cv-11701, 2014 WL 1214828 (D. Mass. Mar. 24,
2014) ...................................................................................... 28, 29
Smith v. Garcia,
CV 16-144 S, 2017 WL 412722 (D.R.I. Jan. 31, 2017).............. 40
Smith v. Intercosmos Media Grp., Inc.,
No. CIV.A. 02-1964, 2002 WL 31844907 (E.D. La. 2002) ........ 16
Smith v. Levin,
24-C-15-004789 (Md. Cir. Ct. 2015) .......................................... 40
Universal Commc’ns Sys. v. Lycos,
478 F.3d 413 (1st Cir. 2007) ...................................................... 16
Zeran v. Am. Online, Inc.,
129 F.3d 327 (4th Cir. 1997) ...................................................... 20

4

 CONSTITUTIONS
U.S. Const. art. IV, § 1. .................................................................. 42
STATUTES
47 U.S.C. § 230 ................................................................... 15, 16, 17
OTHER AUTHORITIES
Jeff Kosseff, Defending Section 230: The Value of
Intermediary Immunity,
15 J. Tech. L. & Pol’y 123 (2010) ............................................... 22
Mike Masnick, Phi Sigma Sigma Sorority Sues Member for
Revealing Secret Handshake on Penny Arcade Forum,
Techdirt (May 8, 2015, 8:24 AM),
https://www.techdirt.com/articles/20150507/
06320030912/phi-sigma-sigma-sorority-sues-memberrevealing-secret-handshake-penny-arcade-forum.shtml ......... 36
Paul Alan Levy, Richart Ruddie Settles Anti-SLAPP
Claims, Makes Restitution; but the Guilty Companies
Remain Unpunished,
Consumer Law & Policy Blog (Mar. 14, 2017, 3:07 PM),
http://pubcit.typepad.com/clpblog/2017/03/richart-ruddiesettles-anti-slapp-claims-makes-restitution-but-theguilty-companies-remain-unpunishe.html ............................... 42
Public Citizen, Internet Free Speech,
http://citizen.org/Page.aspx?pid=396 (last visited Apr. 14,
2017) .............................................................................................. 7
Steve Rhode, Alleged Former Employee Speaks Out About
Rescue One Financial Loan Offers (Aug. 14, 2012),
https://getoutofdebt.org/44980/alleged-former-employeespeaks-out-about-rescue-one-financial-loan-offers ................... 31

5

 Steve Rhode, Is Rescue One Financial Hiring People to Lie
to Google? (Apr. 5, 2013), https://getoutofdebt.org/51374/
is-rescue-one-financial-hiring-people-to-lie-to-google .............. 31
Steve Rhode, Reader Raises Concerns About Financial
Rescue, LLC and Success Link Processing, LLC by
Consumer (Mar. 10, 2015), https://getoutofdebt.org/86646/
reader-raises-concerns-about-financial-rescue-llc-andsuccess-link-processing-llc-by-consumer ................................... 31
Steve Rhode, Rescue One Financial Still Sending Mailers
for Loans (Feb. 17, 2014), https://getoutofdebt.org/62316/
rescue-one-financial-still-sending-mailers-loans ...................... 31
Techdirt Home Page,
https://www.techdirt.com (last visited Apr. 13, 2017) .............. 36
Tim Cushing, The Latest in Reputation Management: Bogus
Defamation Suits from Bogus Companies Against Bogus
Defendants,
Techdirt (Mar. 31, 2016, 8:31 AM),
https://www.techdirt.com/articles/20160322/
10260033981/latest-reputation-management-bogusdefamation-suits-bogus-companies-against-bogusdefendants.shtml ........................................................................ 43
Verified Complaint for Declaratory Judgment,
http://www.citizen.org/documents/
Rescue1BrowardCounty.pdf ...................................................... 32

6

 APPLICATION TO FILE AMICI CURIAE BRIEF IN
SUPPORT OF APPELLANT YELP
Pursuant to California Rule of Court 8.520(f), Public
Citizen, Inc., and Floor64, Inc., respectfully seek permission to
file the accompanying amici curiae brief in support of appellant
Yelp.
Public Citizen, Inc., is a non-profit consumer advocacy
organization based in Washington, D.C. with members and
supporters nationwide. Since its founding in 1971, Public Citizen
has encouraged public participation in civic affairs, and its
lawyers have brought and defended numerous cases involving the
First Amendment rights of citizens who participate in public
debates. Public Citizen, Internet Free Speech, http://citizen.org/
Page.aspx?pid=396 (last visited Apr. 14, 2017). Its attorneys’
experience representing consumers who criticize companies and
politicians has persuaded Public Citizen that the broad discretion
afforded interactive website operators best preserves consumers’
right to criticize; Public Citizen attorneys have represented the
operators of several consumer-oriented websites in opposing
litigation seeking to circumvent their immunity under § 230 of
the Communications Decency Act, 47 U.S.C. § 230.
7

 Public Citizen also hosts blogs, such as CitizenVox,
http://www.citizenvox.org, that allow viewers to post comments.
It has occasionally faced demands to comply with default
judgments ruling that comments had been posted in violation of
someone’s rights. Consequently, Public Citizen has an interest in
the case on that basis as well.
Public Citizen’s familiarity with the free speech principles
at issue, and with § 230 jurisprudence generally, may be of
assistance to this Court in determining whether § 230 forbids the
injunction issued against Yelp. In particular, this brief explains
that § 230 prevents plaintiffs from seeking to enforce an
injunction against an interactive computer service (ICS) provider
based on its publishing activities and that accepting the
plaintiff’s theory in this case would undermine congressional
objectives in enacting the statute. The brief also explains that
accepting plaintiff Hassell’s theory would enable plaintiffs to
employ various unscrupulous tactics to circumvent the
protections of § 230.
Amicus curiae Floor64, Inc., is a corporation that publishes
the online news site Techdirt.com, which hosts commentary and
8

 debate on a variety of topics, some of which are contentious. Since
its founding in 1997, Techdirt has published over 60,000 articles,
which have attracted more than one million comments—thirdparty speech that advances discovery and discussion of these
topics. Techdirt frequently covers issues related to free speech
online and writes about attempts to stifle that speech, including
discussions of intermediary liability and § 230.
In addition, Techdirt has received numerous demands to
have certain comments removed from its forums and discussions.
Because robust discussion within its comment section provides a
vital outlet for its readers that advances its own analysis,
Techdirt depends on strong § 230 protection, and it has regularly
pushed back on inappropriate or overzealous attempts to delete
criticism or speech someone dislikes. This brief explains how
affirmance of the judgement below endangers free speech on sites
like Techdirt, and it lays out some ways in which such sites
respond to default judgments against their commenters.
No party or counsel for a party authored this brief in whole
or in part, or made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
9

 Public Citizen, Floor64, its members, or its counsel made a
monetary contribution intended to fund the preparation or
submission of this brief.

10

 INTRODUCTION
In 2013, Hassell and her law firm sued Bird, alleging that
Bird posted defamatory reviews on Yelp. Hassell obtained a
default judgment against Bird in an uncontested default hearing,
but she never tried to enforce the default judgment against Bird;
instead, she seeks to force Yelp, a non-party, to remove the
content in question with an ex parte injunction. In doing so,
Hassell attempts to circumvent protection granted by § 230 of the
Communications Decency Act, which immunizes Yelp from
liability for its users’ reviews. Hassell brushes § 230 aside on the
dubious theory that Yelp does not face liability as a speaker or
publisher of third-party speech.
Hassell’s theory vitiates the important protection that
§ 230 provides for online free speech, and the Court of Appeal’s
decision is at odds with decisions in other jurisdictions, including
the Ninth Circuit. The Court should reverse that ruling.
STATEMENT OF FACTS AND PROCEEDINGS BELOW
Amici begin with a brief summary of the facts and
proceedings below because their emphasis is different from those
of the parties, and the difference in emphasis bears on Amici’s
legal arguments.
11

 On January 28, 2013, a Yelp user, apparently defendant
Ava Bird, posted a critical review on the Yelp page of a Bay Area
lawyer, plaintiff Dawn Hassell. Bird complained that Hassell had
served her poorly in a potential personal injury case and that
Hassell had failed to communicate with her. Two subsequent
reviews, allegedly also authored by defendant Bird, also criticized
Hassell. On April 10, 2013, Hassell and her law firm sued Bird,
alleging that the reviews were defamatory. The complaint was
served at the address where Bird lived during the short period
when Bird was Hassell’s client; however, the proof of service
submitted to the trial court suggested that the recipient of the
summons indicated that Bird had moved before service was
attempted. A026. When Bird did not respond to the complaint,
Hassell obtained a default, then moved for a default judgment.
That motion was granted on January 14, 2014. The final
paragraph of that order purported to compel “Yelp.com” to
remove “all reviews posted by AVA BIRD under user names
‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any
subsequent comments of these reviewers within 7 business days
of the date of the court’s order.”
12

 Hassell admitted below that the original objective of her
lawsuit was to force the removal of Bird’s derogatory review from
Yelp’s webpage. A051. After the lawsuit was filed, her counsel
notified Yelp of its filing and asked Yelp to remove the review
voluntarily. A601-602. However, Hassell did not name Yelp as a
defendant in the litigation, nor did she indicate to the court that
she would be seeking an order compelling Yelp to take down the
reviews. And Hassell did not notify Yelp, in the course of the
default judgment proceedings, that she was seeking relief against
Yelp. Hassell acknowledged below that she expected Bird to
ignore any injunction, and that she sought default relief against
Yelp for that reason. A658. She offered no explanation for seeking
such relief without notifying Yelp about her motion and without
naming it as a defendant.
Hassell caused the default judgment order to be served on
Yelp’s registered agent on January 28, 2014, the very expiration
date of the statute of limitations for suing Yelp on the theory that
the January 28, 2013 review was defamatory. On April 30, 2014,
Hassell informed Yelp that she planned to ask the court to
“enforce” the paragraph of the default judgment order directed to
13

 Yelp. A055. Yelp responded by filing a motion to vacate the order.
However, the trial judge held that, by attempting to vacate the
order against it, Yelp had improperly allied itself with Bird and
hence could properly be ordered to comply as an aider and abettor
of Bird’s failure to comply with the removal order. The court did
not explain how actions Yelp took after it was first enjoined in
the January order could have supported its original grant of a
default judgment compelling Yelp to take action.
Yelp appealed, arguing that (1) the order compelling Bird
to remove the reviews could not be applied to Yelp, a non-party,
as a matter of California law; (2) applying the order to Yelp
violated both the First Amendment rule against prior restraints
(because there had never been an adversary proceeding in which
Bird’s statements were found to be false and defamatory) and the
Due Process Clause (because the only finding of falsity was made
against Bird in a default judgment proceeding of which Yelp had
no notice and, therefore, in which it had no chance to participate);
and (3) issuance of the removal order against Yelp violated § 230
because Yelp is an ICS provider and the injunction effectively
treated Yelp as a speaker or publisher of content provided by
14

 another, which § 230 forbids. The Court of Appeals rejected all of
these arguments. With respect to § 230, the court held that § 230
does not limit the issuance of injunctive relief against websites
that carry content from third parties who have, themselves, been
ordered to remove the content.
ARGUMENT
I.

Section 230 Immunizes Interactive Computer Service
Providers Like Yelp Both from Monetary Damages
and from Being Compelled to Remove Content
Posted by Their Users.
Section 230 of the Communications Decency Act creates a

large sphere of immunity for ICS providers in order to “preserve
the vibrant and competitive free market” for ideas that exists on
the Internet. 47 U.S.C. § 230(b)(2). Section 230(c)(1) states:
No provider or user of an interactive computer
service shall be treated as the publisher or speaker of
any information provided by another information
content provider.
And § 230(e)(3) provides:
No cause of action may be brought and no liability
may be imposed under any State or local law that is
inconsistent with this section.
These provisions immunize web hosts from tort claims based on
materials placed on their sites by third persons. Batzel v. Smith,
333 F.3d 1018, 1033 (9th Cir. 2003); Barrett v. Rosenthal, 146
15

 P.3d 510 (Cal. 2006). Acceptance of this approach has become
“near-universal.” Jane Doe No. 1 v. Backpage.com, 817 F.3d 12,
18-19 (1st Cir. 2016); Jones v. Dirty World Entm’t Recordings,
755 F.3d 398, 406 (6th Cir. 2014) (citing cases); Universal
Commc’ns Sys. v. Lycos, 478 F.3d 413 (1st Cir. 2007).
Section 230 precludes injunctive relief as well as damages.
Indeed, cases dismissed pursuant to § 230 often involve claims for
both injunctive relief and monetary damages. See, e.g., Ben Ezra,
Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 983 (10th Cir.
2000); Green v. Am. Online, 318 F.3d 465, 708 (3d Cir. 2003);
Smith v. Intercosmos Media Grp., Inc., No. CIV.A. 02-1964, 2002
WL 31844907 (E.D. La. 2002). Courts have recognized that an
ICS provider is no less treated as the “publisher . . . of . . .
information provided by another,” 47 U.S.C. § 230(c)(1), when the
plaintiff seeks only injunctive relief. In Noah v. AOL Time
Warner, 261 F. Supp. 532 (E.D. Va. 2003), for example, the court
roundly rejected the plaintiff’s argument that § 230 did not apply
to claims for injunctive relief. It held that “given that the purpose
of § 230 is to shield service providers from legal responsibility
from the statements of third parties, § 230 should not be read to
16

 permit claims that request only injunctive relief.” Id. at 540. The
court recognized that an injunction will be “at least as
burdensome” to the service provider as damages and is “typically
more intrusive.” Id.
Moreover, § 230(e)(3) forbids a “cause of action” from being
“brought” against an ICS provider, making the operator immune
from both suit and liability. The United States Court of Appeals
for the Ninth Circuit has repeatedly treated § 230 as providing
immunity from suit and not just from liability. Barnes v. Yahoo!,
Inc., 570 F.3d 1096, 1098 (9th Cir. 2009); Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003).
Nor does § 230 permit plaintiffs to circumvent its
protections by seeking to enforce an injunction directly against an
ICS provider, when that injunction could issue only because the
provider was not named as a party below. The Court of Appeal
suggested that the injunction issued against Yelp does not violate
§ 230 because “it does not impose any liability on Yelp.” Op. 28.
But any liability that would flow out of contempt proceedings if
Yelp fails to comply with the injunction is still liability premised
on Yelp’s activities as a “publisher.” Distinguishing these two
17

 forms of liability creates an obvious loophole in § 230 that
potential plaintiffs are already beginning to exploit. See Amicus
Letter of Glassdoor, Inc. 2, Aug. 15, 2016 (noting that Glassdoor
has already begun receiving demand letters citing the opinion
below). Section 230 should not be so easily sidestepped.
II.

Section 230 Plays an Important Role in Protecting
Online Content Against a Heckler’s Veto and
Encouraging Self-Regulation.
Section 230 protects critical First Amendment values. This

Court has recognized that without § 230, operators of ICS
functions could not provide services that enable members of the
public to have their say:
[S]ervice providers who received notification of a
defamatory message would be subject to liability only for
maintaining the message, not for removing it. This fact,
together with the burdens involved in evaluating the
defamatory character of a great number of protested
messages, would provide a natural incentive to simply
remove messages upon notification, chilling the freedom of
Internet speech.
Barrett v. Rosenthal, 146 P.3d 510 at 523.
See also Carafano v. Metrosplash.com, 339 F.3d 1119, 1123-24
(9th Cir. 2003). The broad reading given to § 230 by this Court, as
well as by the United States Court of Appeals for the Ninth
Circuit, has enabled many of the leading companies that offer
18

 interactive computer services to maintain their headquarters in
California. See Amicus Letter of Github, Inc. 2, Aug. 15, 2016.
The broad reading of § 230 also creates a hospitable environment
for innovative Internet startups and small businesses, which
would otherwise incur large monitoring costs and face the
constant threat of litigation.
ICS providers like Yelp cannot realistically police content
in advance. Even when particular comments are challenged,
operators cannot be expected to devote sufficient lawyer time to
evaluate challenged statements and decide whether to remove
them or leave them posted. The cost of making intelligent
assessments of the risks of litigation, not to mention the cost of
participating in the litigation, far outstrips what can be earned
from hosting challenged comments. Chicago Lawyers Comm. v.
Craigslist, 519 F.3d 666, 668-69 (7th Cir. 2008).
The costs are no less if only injunctions are sought. If ICS
providers could be subjected to the expense of litigation—wholly
apart from the risk of facing damages awards—the result would
likely be that as soon as any comment were challenged, the
operator would remove it rather than risk being dragged into the
19

 litigation. See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th
Cir. 1997); Barrett v. Rosenthal, 146 P.3d at 524-25. Thus,
without the protection of § 230, online speech would be subject to
the heckler’s veto: speech would likely be removed just because
somebody objected to it, regardless of the merits of the objection.
Notably, only critical speech is targeted for such removal.
No one threatens suit over overstated online praise or
undeserved online compliments. Section 230 thus protects the
marketplace of ideas from consistent removal of one side of the
debate and consumers from falsely one-sided portrayals of
businesses and individuals that may, indeed, merit criticism. As
a result, the powerful immunity provided to ICS providers has
become a vital aspect of our system of free speech online.1 By
exploiting a default judgment against Bird to obtain an
injunction against Yelp, Hassell bypasses these protections.

This immunity is so central that when Congress banned libel
tourism, preventing the enforcement of foreign defamation
judgments in the United States that would run afoul of our
constitutional protections, it included protection for ICS
providers. 28 U.S.C. § 4102(c).
1

20

 Instead of forcing ICS providers to remove objectionable
material, § 230 tells plaintiffs: pursue the speaker, not the host.
If the speaker is found liable, then the court can assess damages
or, if the jurisdiction allows injunctions against defamatory
speech, order the speaker to use her best efforts to remove the
false or defamatory statement. Because Yelp permits its users to
remove content once posted, Hassell could have enforced the
injunction against Bird. Indeed, because Bird could have
complied with the injunction issued against her by removing her
review, Hassell could have sought the imposition of a coercive
fine, incarceration, or other sanction to induce Bird to take down
the review. But there is no indication that Hassell tried to compel
Bird to obey the injunction, or that the court insisted such steps
be taken. Instead, the court chose to burden Yelp with an
injunction—an outcome at odds with the purpose of § 230.
Even if Yelp did not allow users to remove or edit their
content once posted—and many reputable sites do not—
Section 230 affords it discretion on whether to accommodate a
user’s request to remove content, even if that request is
motivated by a court order. This comports with the congressional
21

 purpose in enacting § 230: to “encourage the growth of the
Internet by relieving intermediaries from liability for the content
posted by third parties while expressly encouraging them to
impose their own content controls.” Jeff Kosseff, Defending
Section 230: The Value of Intermediary Immunity, 15 J. Tech. L.
& Pol’y 123, 125 (2010). To deprive Yelp of choice is to subvert
this very purpose. Such discretion allows Yelp to consider, for
example, whether the defendant consented to a judgment, or
whether she failed to oppose its entry because she couldn’t afford
to defend herself and hoped that the plaintiff would not pursue
further litigation.
And just as ICS providers respond in a variety of ways
when the content they host is challenged, in Public Citizen’s
experience they respond in various ways when a default
judgment is presented as a reason to remove a hosted comment.
Public Citizen itself, which hosts user comments on several of its
blogs, has refused to remove critical comments subjected to a
default judgment, precisely because of the several default
judgments it has seen issued without substantial effort to obtain
service. It will, however, respond to a judgment that was issued
22

 against a commenter after an adversary hearing. Public Citizen’s
recent client Myvesta Foundation, which hosts a website about
debt relief, provides in its terms of service that it will typically
not remove comments just because a judgment has been issued
against one of its users; it prefers to preserve the historical record
by retaining the comment along with a public retraction or even
an explanation from the original commenter that takes
responsibility for engaging in defamation. Public Citizen’s former
client 800Notes, a reverse directory for telephone numbers used
by telemarketers, took the opposite approach: it would remove
any comment that had been the subject of a default judgment
issued by an American state or federal court. And Amici have
observed that Google, which hosts material on such services as
YouTube and Blogspot, typically removes content in response to
any order issued by an American court that appeared to have
proper personal jurisdiction over the defendant.
Preserving ICS provider autonomy in responding to these
challenges is crucial. If an injunction were to forbid Yelp from
maintaining a certain statement on its website, Yelp would risk
being cited for contempt if, for example, somebody else
23

 deliberately posted that statement or a very similar statement on
another page of its website. Such a contempt proceeding could
lead to additional legal expense to defend the contempt
proceedings and even to the imposition of monetary contempt
sanctions, including attorney fees. Once faced with the prospect
of contempt proceedings, Yelp would have to assess its exposure
especially carefully when statements that might violate the
injunction are posted to its site. In this way, injunctive
proceedings could produce the same problem of the heckler’s veto
as pre-litigation demands. Section 230 was intended to protect
ICS providers like Yelp from that consequence.
III.

The Lower Court’s Ruling Is Especially Troubling in
Light of the Recent Rise of Litigation Strategies
Aimed at Circumventing § 230.
Because Hassell’s legal theory provides a roadmap for

unscrupulous litigants to circumvent § 230, this Court should
follow the rulings of courts in other jurisdictions that have
consistently refused to enjoin ICS providers that host content
whose authors have been ordered to remove the content.
Hassell’s litigation strategy did not require meritorious
claims against Bird. Moreover, the record below provides reason
24

 to worry about how Hassell obtained the default judgment. Bird
was served by delivery of the summons and complaint to her last
known address, but she had apparently moved. A026.
Similarly, plaintiffs in other jurisdictions have obtained
orders that force online hosts to remove content by a variety of
nefarious techniques: colluding with their critics; obtaining
default judgments for the express purpose of obtaining relief
against third-party hosts; obtaining default judgments without
providing any due process to the hosts; and even obtaining
fictional consent orders by submitting forged papers in which a
fictional defendant admits to defamation and consents to an
order actually aimed at the host.
A. Orders Entered for the Admitted Purpose of
Circumventing § 230.
In the following cases, plaintiffs filed complaints against
their critics but primarily sought an injunction against the ICS
provider. They promised no personal adverse consequences for
the speaker, took a default judgment, and then made a demand
on the ICS provider. This technique would succeed regardless of
whether the online criticism consisted of true statements of fact

25

 or constitutionally protected opinions. In each case, the court
refused to extend injunctive relief to the ICS provider.
In Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010), the
defendant had posted several vicious attacks against the
plaintiffs, his former spouse and her parents. When the
defendant did not appear to contest the suit, the plaintiffs asked
the trial court to enter a default judgment awarding nominal
damages as well as an injunction.2 After the defendant defied the
court order by posting additional comments, the plaintiffs asked
the judge to extend the injunction to the host Ripoff Report,
which—pursuant to its normal policy in such cases—refused to
remove the enjoined criticisms. Xcentric Ventures, the owner of
Ripoff Report, appeared to oppose the extension of injunctive
relief, invoking its § 230 immunity and arguing that it had not
acted in concert with the defamers.
The trial judge would not implement the part of the ex
parte injunction that contemplated relief against the host. It

The terms of the injunction required third-party hosts to “make
reasonable efforts to ensure the false statements are removed.”
Permanent Inj. 3, Blockowicz v. Williams, No. 09-C-3955 (N.D.
Ill. June 10, 2009).
2

26

 recognized that the plaintiffs were trying to evade § 230 but
rested solely on the ground that Rule 65 of the Federal Rules of
Civil Procedure forbids injunctions to extend to third parties that
are merely hosting enjoined content. Blockowicz v. Williams, 675
F. Supp. 2d 912, 915-916 (N.D. Ill. 2009). The Court of Appeals
for the Seventh Circuit affirmed the trial judge’s refusal because
hosting content that a speaker has been ordered to remove is not
the sort of action in concert with a defendant that warrants a
departure from the normal rule that third parties who have not
themselves been held liable cannot be subjected to injunctive
relief. Blockowicz v. Williams, 630 F.3d at 568.
In Giordano v. Romeo, 76 So. 3d 1100, 1101 (Fla. App.
2011), the operator of a drug treatment center sued a former
patient who complained about abusive treatment. The plaintiff
promised the patient that, if he did not oppose entry of an
injunction against continued posting of the criticisms, the
plaintiff would not seek any monetary relief. After the defendant
asked Ripoff Report to take down his critical review, which it
refused to do, the plaintiff moved to extend the injunction to this
third party. The trial judge initially granted relief, but then
27

 revoked the order on the ground that it was forbidden by § 230.
The Florida Court of Appeals affirmed, holding that Ripoff Report
“enjoys complete immunity from any action brought against it as
a result of the postings of third party users of its website,” and
that extending the injunction to it was forbidden even if the
postings were defamatory. Id. at 1102.
In Small Justice LLC v. Xcentric Ventures LLC, No. 13-cv11701, 2014 WL 1214828, at *1 (D. Mass. Mar. 24, 2014), a
lawyer who had been accused of criminal activity in a post on
Ripoff Report sued his critic in state court and obtained a default
judgment compelling removal of the post. In seeking the default
judgment, the lawyer reassured the trial judge that the default
judgment would not include damages against the non-appearing
alleged defamer; it would only be used to seek relief against the
site hosting the content. When Ripoff Report refused to remove
the post, the lawyer used the default judgment as a basis for
executing on the copyright. The lawyer then sued the ICS
provider, alleging both copyright infringement and various state
torts and arguing that because the ICS provider was holding
itself out as owner of the copyright in the challenged posts, it was
28

 taking responsibility for the content and could be compelled to
remove the posts despite § 230. Id. at *2. The trial court
disagreed, ruling that § 230’s immunity forbade compelling the
provider to remove the review even in these circumstances.3 Id.
at *7.
The decision below is at odds with the rulings of these other
courts. These courts have refused to allow unhappy targets of
online criticism to compel ICS providers to remove the criticism
by first obtaining relief from the speakers, and then demanding
that the host comply with orders directed to the speakers.
B. Default Judgments Obtained Without Fair
Process.
Public Citizen has also encountered cases where a criticized
company obtains a default judgment by going through the
motions of serving the speaker but directing the more substantial
efforts at the host.4

The issue is now pending in the United States Court of Appeals
for the First Circuit, Nos. 15-1506, 16-1085, where the case was
argued on April 6, 2017.
3

The proposed amicus curiae brief of Professor Eugene Volokh
identifies scores of cases from the California courts and from
elsewhere in the nation in which plaintiffs have used
questionable or inappropriate tactics to obtain judgments that
4

29

 An example of this technique came to light during litigation
in which Public Citizen attorneys represented Myvesta
Foundation, a company that hosts a blog about the debt relief
industry called the “Get Out of Debt Guy” website. Myvesta’s
principal, Steve Rhode, previously worked in the debt relief
industry; he used his blog to share information about the various
scams that companies in the industry use to the disadvantage of
consumers. The blog accepts communications from consumers
and posts them with Rhode’s own comments, and it also allows
members of the public to comment. As described above, Myvesta’s
policy is to not remove allegedly defamatory content just because
the author expresses remorse and asks that they be removed.
Instead, Myvesta prefers that the remorseful author post an
apology along with an explanation for the original false posting.
Rhode published a series of articles criticizing Rescue One
Financial LLC, a debt relief company based in Irvine, and

could then be used to get published criticisms of the plaintiffs
taken offline. This section and the next section of this brief
describe in detail what happened in some such cases in which
amici or their counsel were involved.
30

 Financial Rescue LLC, a debt relief company based in Milpitas.5
Both companies hired the same reputation management
company, which arranged to file lawsuits that would secure
orders declaring that some comments posted to the articles were
defamatory.6 The reputation manager’s first ploy was to hire a
law firm to file a lawsuit—not against Myvesta but against an
anonymous defendant, identified in the complaint only as “John
Doe,” based on comments placed on the articles in September
2014 within roughly thirty minutes of each other.7 Rescue 1

Steve Rhode, Alleged Former Employee Speaks Out About
Rescue One Financial Loan Offers (Aug. 14, 2012),
https://getoutofdebt.org/44980/alleged-former-employee-speaksout-about-rescue-one-financial-loan-offers; Steve Rhode, Is Rescue
One Financial Hiring People to Lie to Google? (Apr. 5, 2013),
https://getoutofdebt.org/51374/is-rescue-one-financial-hiringpeople-to-lie-to-google; Steve Rhode, Reader Raises Concerns
About Financial Rescue, LLC and Success Link Processing, LLC
by Consumer (Mar. 10, 2015), https://getoutofdebt.org/86646/
reader-raises-concerns-about-financial-rescue-llc-and-successlink-processing-llc-by-consumer; Steve Rhode, Rescue One
Financial Still Sending Mailers for Loans (Feb. 17, 2014),
https://getoutofdebt.org/62316/rescue-one-financial-still-sendingmailers-loans.
5

The contract between Rescue One Financial and the reputation
manager is posted at http://www.citizen.org/documents/
RuddieContract.pdf.
6

The complaint can be found on the Broward County Court’s
electronic docket; it is also posted on Public Citizen’s website. See
7

31

 Financial LLC v. John Doe, No. CACE-14-024286 (Fla. Cir. Ct.
2014).
The plaintiff’s theory was that John Doe had commented on
articles on Myvesta’s website—although Myvesta itself was not
mentioned—and that these comments were false and defamatory.
The complaint acknowledged that neither the site’s host nor
search engines like Google could be sued over the hosted
comments. But it alleged that the website and Google were
unfairly serving as the “public electronic microphone” for the
comments, bringing the false comments to public attention in
that “Google electronically republishes the defamatory
statements . . . every time a Google.com user searches the
plaintiff’s name.” Compl. ¶¶ 22-24, Rescue 1 Financial LLC v.
John Doe, No. CACE-14-024286 (Fla. Cir. Ct. 2014). Attempting
to support this statement, the complaint included as an exhibit a
somewhat blurry copy of the search result, showing that links to

Verified Complaint for Declaratory Judgment,
http://www.citizen.org/documents/Rescue1BrowardCounty.pdf.
Amici ask this Court to take judicial notice of this judicial record,
and others cited in this brief, pursuant to Section 452(d) of the
California Evidence Code.
32

 the articles on which the allegedly defamatory comments had
been posted appeared prominently among the search results.
The complaint further alleged that, because the comments
had been posted anonymously, it was not possible to identify the
poster of the comments, id. ¶ 13; consequently, the complaint
sought leave to serve the anonymous defendant only by
publication, id. ¶ 17. The complaint attempted to justify personal
jurisdiction in Florida on the ground that the website could be
viewed in Florida and that the anonymous commenter could be
from Broward County, Florida. Id. ¶¶ 13-14.
The complaint contained several false and misleading
statements. For example, the Google search results shown in the
exhibit (page 38 of the complaint) did not show the allegedly
defamatory comments to Internet users who input “Rescue One
Financial” as a search string. Rather, the search result provided
a link to the articles that contain the criticisms of Rescue One,
and Rescue One’s lawyer later admitted that the articles (and
thus, implicitly, not the comments) were the real target of the
litigation. The Google search results contained “search snippets”
drawn from the articles themselves, not from the comments.
33

 Furthermore, Internet users would have seen the comments
alleged to be defamatory only if they clicked on the search result,
read the entire article by scrolling down several screens, and read
through the various comments posted to the articles.
Second, the plaintiffs in Rescue 1 Financial v. Doe had
ways to identify the author of the allegedly defamatory
comments. There is a standard mechanism for accomplishing
that objective, one that is commonly used in Florida, California,
and every other state: the plaintiff can sue the Doe defendant and
serve a subpoena on the host of the website, demanding the
Internet Protocol address (IP address) from which the comment is
posted. Kinda v. Carpenter, 203 Cal. Rptr. 3d 183, 188 (Ct. App.
2016). Many jurisdictions demand an evidentiary showing that
the case has merit before such discovery is allowed (under a
standard that Public Citizen has advocated). The leading
California case is Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 240 (Ct.
App. 2008). The IP address reveals the Internet Service Provider
(ISP) whose services were used to post the comment, and a
second subpoena can be issued to the ISP to identify the specific
customer who was using the ISP’s services to connect to the
34

 website when the comment was posted. That customer can then
be identified, named as a defendant, and subjected to a final
judgment that includes damages.
However, these subtleties escaped the attention of the court
in Broward County. Rescue One’s counsel made sure the critical
details would not be noticed because, as in this case, no notice
was given to Myvesta of the pendency of the litigation or of the
effort to obtain an order that would shield consumers from
Myvesta’s criticisms of Rescue One. Instead, the court allowed
service to be effected by publication—in the Broward County
Daily Business Review—even though there was no reason, other
than the complaint’s self-serving allegation, to believe that the
anonymous commenter was located in South Florida. Mot. for
Entry of Default J., Rescue 1 Financial v. Doe, No. CACE-14024286 (Fla. Cir. Ct. 2014). The court then entered the default
judgment declaring that the entire articles were false and
defamatory. Rescue One submitted the order to Google to obtain
the delisting.
A comparable situation arose involving amicus Floor 64,
Inc., and its well-known Techdirt blog. Techdirt Home Page,
35

 https://www.techdirt.com (last visited Apr. 13, 2017). Techdirt
reported on a lawsuit that the Phi Sigma Sigma sorority filed in
2015 in the Superior Court for King County, Washington. The
sorority complained that in 2011, a former member had breached
her membership contract and improperly disclosed confidential
information by describing on the “Penny Arcade” Internet forum
certain “secret rituals,” such as the form of a handshake and the
way in which officers of the sorority sat and were attired while
presiding over meetings. Mike Masnick, Phi Sigma Sigma
Sorority Sues Member for Revealing Secret Handshake on Penny
Arcade Forum, Techdirt (May 8, 2015, 8:24 AM),
https://www.techdirt.com/articles/20150507/06320030912/phisigma-sigma-sorority-sues-member-revealing-secret-handshakepenny-arcade-forum.shtml.
The complaint alleged that although several websites had
voluntarily removed the information in response to cease-anddesist letters from the sorority, Penny Arcade had refused to do
so. Accordingly, the suit sought damages and injunctive relief
against Penny Arcade’s anonymous user. Penny Arcade itself was
not identified as a defendant, no doubt because the plaintiff
36

 recognized that § 230 provided it with immunity against such a
lawsuit.
The suit was filed in Seattle, not because there was any
reason to believe that the Doe defendant was located there, nor
because the sorority was located there, but only because the
Internet forum was hosted in Seattle. The Washington state
court case proceeded, and the plaintiff eventually obtained a
subpoena ordering Penny Arcade to provide identifying
information about its user. Such information was provided, but it
consisted only of an email address that did not itself identify the
speaker and that was no longer in active use. Moreover, although
Penny Arcade furnished an IP address from which the
anonymous user had posted the information, the posting was so
old that Time Warner (the ISP) no longer had information about
which customer was using that specific IP address at that specific
time. Indeed, the plaintiff’s papers acknowledged that it knew
when it served its subpoena that Time Warner would no longer
have useful information. Nevertheless, it sent the subpoena for
the apparent purpose of saying it had tried.

37

 The sorority then asked the Superior Court to enter a
default judgment on the ground that, even though it had not been
able to notify the anonymous defendant of the pending lawsuit
against her, such judgment should be entered because the
sorority had made a genuine effort to provide such notice. Mot.
for Default J. 4, Phi Sigma Sigma v. Doe, No. 15-2-10390-3
(Wash. Sup. Ct. Sept. 19, 2016). The motion made no bones about
the fact that the default judgment was not sought to secure
effective relief against the Doe. Instead, the motion explained
that the real purpose of obtaining a default judgment was to
enable the sorority’s counsel to send Penny Arcade a demand for
removal. Id. at 5. The motion for a default judgment did not
acknowledge that the relief sought was based on speech, nor did
it justify why the First Amendment might tolerate injunctive
relief without proof against Penny Arcade and, indeed, without
even notice to Penny Arcade. The default judgment was entered.
At this point, Penny Arcade removed the anonymous
posting, apparently concluding that dealing with the sorority’s
lawyer was too much trouble to make it worth keeping the post
up. The sorority’s lawyer then communicated with Techdirt,
38

 pointing to the default judgment and saying that every other
website hosting the content had complied with the removal
demand. Techdirt, however, refused to comply, reasoning that the
default judgment against the anonymous user did not provide a
sound legal basis for seeking removal under the circumstances.
The sorority has not taken any steps to domesticate the
Seattle default judgment in California or to have it enforced
against Techdirt. However, if the decision below is affirmed,
Techdirt could be exposed to enforcement of that judgment and
contempt proceedings if it resists.
C. Cases of Outright Forgery to Obtain Consent
Orders.
In addition to cases of collusion directed at ICS providers
and default judgments obtained without fair process, there has
been a recent, increasing problem of fraudulent consent orders
being submitted for judicial signature. Such a brazen scheme was
employed by the reputation manager retained by the two
California debt relief companies discussed in the previous section.
Following the entry of the default judgment in Rescue 1 Financial
v. Doe, Google was unwilling to delist the pages specified in the

39

 order presented to it, apparently because the judgment had been
obtained by default.
Having failed to accomplish his objective, the reputation
manager escalated his tactics by having three new complaints
filed—in state court in Baltimore, Maryland; in state court in
Pinellas County, Florida; and in federal court in Providence,
Rhode Island. Each case identified an individual living near the
court in question and who was the alleged author of allegedly
defamatory comments posted to articles on the blog. In the two
state court proceedings, both filed in 2015, Smith v. Levin, 24-C15-004789 (Md. Cir. Ct. 2015) and Financial Rescue LLC v.
Smith, No. 15-006119-CI (Fla. Cir. Ct. 2015), the complaints were
filed by solo practitioners, who submitted a few days later a
proposed consent order signed by the identified Doe defendant.8
The Rhode Island case, Smith v. Garcia, CV 16-144 S, 2017 WL
412722 (D.R.I. Jan. 31, 2017), was filed in 2016 as a pro se
complaint; the reputation manager hired a California-based

Like those in Rescue 1 Financial v. Doe, the complaint and
succeeding papers in Financial Rescue v. Smith are available for
download on an electronic docket, in this case the docket
maintained by the Circuit Court for Pinellas County.
8

40

 process server to deliver a complaint signed by a pro se plaintiff
(the co-CEO of Rescue One Financial), along with a pro se
consent order. In each case, the trial judge signed the consent
order without giving any notice to the ICS provider that orders
were being sought about content posted to the site. The signed
orders were then furnished to Google, which promptly removed
the articles from its database.
In fact, the consent orders were fictional because the
defendants who had supposedly signed the consent orders did not
exist. No one with those names could be located at the addresses
listed on the consent motions and proposed consent orders; in the
Garcia case, mail sent to the address listed on the orders was
returned as undeliverable. And Smith, the supposed pro se
plaintiff in Smith v. Garcia, indicated through counsel that he
had neither signed the pro se papers nor authorized them to be
filed on his behalf. 2017 WL 412722, at *1. The Rhode Island
federal judge asked the United States Attorney for that district to
initiate an investigation, id., and the reputation manager
eventually admitted his responsibility for creating fake orders
and agreed to get them lifted. Paul Alan Levy, Richart Ruddie
41

 Settles Anti-SLAPP Claims, Makes Restitution; but the Guilty
Companies Remain Unpunished, Consumer Law & Policy Blog
(Mar. 14, 2017, 3:07 PM), http://pubcit.typepad.com/clpblog/2017//
03/richart-ruddie-settles-anti-slapp-claims-makes-restitution-butthe-guilty-companies-remain-unpunishe.html.
None of the fraudulently obtained orders described above
was entered by a California court. But this Court cannot take
comfort from that fact. The Full Faith and Credit Clause requires
California courts to honor judgments rendered by courts in other
states. U.S. Const. art. IV, § 1. Thus, if this case establishes that
California law allows a web host to be held in contempt for
refusing to honor a default judgment entered against one of its
users, California courts will have to respect the judgments
entered in other states, no matter how suspect. Elkind v. Byck,
439 P.2d 316, 320 (Cal. 1968).
Moreover, California courts have not been immune to the
sort of chicanery found in courts of other jurisdictions: the very
first reports about this stratagem discussed the activities of two
California lawyers who were caught creating fake orders to
suppress critical material on the “Pissed Consumer” website. Tim
42

 Cushing, The Latest in Reputation Management: Bogus
Defamation Suits from Bogus Companies Against Bogus
Defendants, Techdirt (Mar. 31, 2016, 8:31 AM),
https://www.techdirt.com/articles/20160322/10260033981/latestreputation-management-bogus-defamation-suits-boguscompanies-against-bogus-defendants.shtml.
These examples, and the increasing use, of fraudulent
consent orders submitted for judicial signature, further highlight
some of the harms that may result if the decision below is
allowed to stand.
CONCLUSION
For the foregoing reasons, the judgement below should be
reversed.

43

 DATED: April 14, 2017

JUELSGAARD INTELLECTUAL
PROPERTY AND
INNOVATION CLINIC
Mills Legal Clinic
at Stanford Law School

By:
Of counsel:
Paul Alan Levy

PHILLIP R. MALONE
JEF PEARLMAN
DANIEL CHAO
ERICA SOLLAZZO
Attorneys for Amici Curiae

44

 CERTIFICATE OF WORD COUNT
(Cal. Rules of Court 8.520(c)(1))
The text of this brief consists of 6295 words as counted by
the Microsoft Word word-processing program used to generate
this brief, including footnotes but excluding the tables, the cover
information required by Rule 8.204(b)(10), this certificate, and
the signature block.

Dated: April 14, 2017

Phillip R. Malone (SBN 163969)

45

 PROOF OF SERVICE
At the time of service, I was over 18 years of age and not a
party to this action. I am employed in the County of Santa Clara,
State of California. My business address is Crown Quadrangle,
559 Nathan Abbott Way, Stanford, CA 94305-8610.
On April 14, 2017, I served true copies of the following
document(s) described as APPLICATION TO FILE AMICI
CURIAE BRIEF, AND BRIEF OF AMICI CURIAE PUBLIC
CITIZEN, INC., AND FLOOR64, INC., IN SUPPORT OF
APPELLANT on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MAIL: I enclosed the document(s) in a sealed envelope
or package addressed to the persons at the addresses listed in the
Service List and placed the envelope for collection and mailing,
following our ordinary business practices. I am readily familiar
with the practice of Mills Legal Clinic at Stanford Law School for
collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course of business with
the United States Postal Service, in a sealed envelope with
postage fully prepaid. I am a resident or employed in the county
where the mailing occurred. The envelope was placed in the mail
at Stanford, California.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed on April 14, 2017, at Stanford, California.

Phillip R. Malone

46

 SERVICE LIST

Monique Olivier, Esq.
Duckworth Peters
Lebowitz Olivier LLP
100 Bush Street, Suite 1800
San Francisco, CA 94104
Email: Monigue@dplolaw.com

Attorneys for Plaintiffs and
Respondents
Dawn Hassell, et al.

Nitoj Singh, Esq.
Dhillon Law Group Inc.
177 Post Street, Suite 700
San Francisco, CA 94108
Email: nsingh@dhillonsmith.com
Thomas R. Burke
Rochelle L. Wilcox
Davis Wright Tremaine LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533

Attorneys for Non-Party
Appellant
YELP Inc.

Aaron Schur
Yelp Inc.
140 New Montgomery Street
San Francisco, CA 94105
Hon. Ernest Goldsmith
Dept. 302
San Francisco Superior Court
Civic Center Courthouse
400 McAllister Street
San Francisco, CA 94102-4514

Case No. CGC-13-530525

Court of Appeal
First Appellate District, Div. Four
350 McAllister Street
San Francisco, CA 94102

Case No. A143233

47