[Warning: Brutally ugly opinion and long blog post ahead]

The evisceration of Section 230 continues. Yesterday I explained that the last 12 months have been tough for Section 230 jurisprudence. Today’s opinion is worse than *all* of the cases I discussed yesterday–and you better believe I don’t make that statement lightly! . . .

Eric then goes on to describe a million things Yelp did wrong, or that went wrong — and yet — and I’m just going to excerpt the Section 230 disaster part here, though there’s much more —

Yelp should easily win against any effort to compel it to remove users’ content…right? No. The opinion drips with disgust that Yelp continues to publish content that a court has said is defamatory. In turn, the court makes every possible legal inference against Yelp. You might want some anti-nausea medicine on hand for this next part of the blog post. . .

Here’s the court’s Section 230 jujitsu:

The removal order does not violate section 230 because it does not impose any liability on Yelp….

Assuming, as Yelp has maintained, that Yelp played no role in the creation of that defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not impose any liability on Yelp….

If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court….

…sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.

WTF??? As a non-party to the lawsuit, the court says Yelp doesn’t face liability from the suit itself, and the court thinks contempt sanctions–including the possibility of monetary damages–against a non-party don’t count as “liability” because it’s “a different type of liability”? And a judicial compulsion to remove content that Yelp chooses to publish doesn’t treat Yelp “as a publisher or distributor”? Wow.

What about the contrary Section 230 precedent I cited above? The court says:

The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site….Neither party cites any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoins the originator of defamatory statements posted on the service provider’s Web site

So the court is flat-out wrong.

Oh man, oh man, oh man, this is bad!  What’s going to be?

Can This Opinion Be Fixed?

Based on the way the court structured this opinion, fixing it will not be easy. Yelp can appeal to the California Supreme Court, but they have discretion whether or not to hear the case. Depublishing the opinion would be a smaller but still fairly effective step, but the odds of this panel depublishing its opinion seem remote.

Congressional fixes to this ruling are virtually impossible. It probably would require a substantive change to Section 230, and if Congress ever reopens Section 230 for amendment, that will almost certainly end badly.

Read both posts, ideally with your eyes closed.

So okay, what is going on?  Are pendulums swinging back now in the “bad” direction, or are there just judges out who never quite got it?

I just don’t know. I don’t know!  I don’t know!

Have you seen what it’s like out there?  You don’t even know what bathroom to use.  Nothing makes any sense in this world any more.

And now this.