I hate plurality decisions. I like my law clean, clear, and unobstructed. The California Supreme Court recently issued a plurality decision, Hassell v. Bird (July 2, 2018, 2018 DJDAR 6528) better known as the Yelp® case.

For the uninitiated, a plurality occurs when (1) one or more justices, but not a majority, join in an opinion, (2) one or more other justices mostly agree with the opinion, and (3) the agreeing and mostly-agreeing justices outnumber those on the other side. The old admonishment, “everybody has an opinion” applies to plurality decisions. All sides write separately to set out where they align and where they do not.

The facts in Hassell are instructive if only to illustrate the effects of pouring gasoline on fire. The law is instructive, too. But, let’s start with the facts:

A law firm (Hassell) agreed to represent Bird in a personal injury case. After it became evident to Hassell that Bird was greatly dissatisfied, Hassell withdrew from representation. Bird, under a pseudonym, wrote defamatory statements against Hassell in the form of a negative review on Yelp. Hassell requested Bird to retract or edit the statements. Predictably, Bird declined to do so. Instead, Bird, under a new pseudonym, wrote a second negative review against Hassell. Hassell sued Bird seeking general, special, and punitive damages for libel, placing Hassell in a false light, and intentional infliction of emotional distress. Hassell also sought an injunction forcing Bird to remove her defamatory statements from Yelp. The final insult was when Bird added follow-up defamatory comments to her first review.

The trial court found against Bird and ordered her (1) to pay $556,918.85 to Hassell, and (2) to remove the reviews. The court also ordered Yelp to remove Bird’s defamatory statements in the event that Bird did not do so herself.

Upon winning its case, Hassell served Yelp the order. Yelp filed a motion to set aside and vacate the order. The trial court denied the motion. YELP then filed an appeal. The appellate court affirmed the trial court. YELP then appealed to the California Supreme Court.

Yelp focused on two issues. First, Yelp contended that it was not a party to the suit therefore, an order directing it to take any action violates its due process rights. Second, YELP contended that the Communications Decency Act of 1996 immunizes Yelp from any court orders.

Three members of the plurality ignored the due process claim because they felt the immunization issue was dispositive. The fourth member of the plurality would have decided in favor of Yelp on due process grounds, but, she agreed that Yelp is protected by immunity, under the facts presented.

The first thing to know about this case is that Hassell won and Bird lost. This decision does not reverse anything in the order relating to Bird. Not the half-million dollar judgment awarded to Hassell, nor Bird’s requirement to remove her defamatory statements.

Contrary to Yelp’s claim of absolute immunity, a majority of justices concluded that a California Court may enjoin an interactive service provider (Kruger in concurrence, Liu in dissent, Cuellar and Stewart joined in separate dissent). The devil is in the details as to how to properly enjoin an interactive service provider (Yelp).

The Communications Decency Act immunizes interactive service providers from tort liability for content provided by third parties. Disagreement in this case focused on the definition of liability. The plurality believes that in 1996 the concept of liability encompassed orders to take down certain content. The dissent believes today’s definition of liability (exposure to financial loss) is what matters. Under the dissent’s definition of liability, a take-down order of already-adjudicated defamatory content does not subject interactive service providers to risk of financial loss, therefore there is no liability for which the Act provides immunity.

Respondent (Hassell) is reportedly considering an appeal to the U.S. Supreme Court. The case seems ripe for review to me. I’m predicting that Hassell asks for Supreme Court review, and that they grant cert. Cue drum roll … I think SCOTUS will reverse.

Even the plurality justices held their noses when they ruled that a court has no power to order Yelp to take down defamatory statements. A lot has changed in the 22 years since Congress enacted the Communications Decency Act. Do we still need the helicopter parenting system Congress once deemed necessary to protect an infant internet? I think not. I think the interactive service provider market is now mature enough to stand on its own. If SCOTUS doesn’t come to the rescue, perhaps Congress will.