Sep 012018
 

This post originally appeared on Techdirt on 1/24/18.

A few weeks ago we posted an update on Montagna v. Nunis. This was a case where a plaintiff subpoenaed Yelp for the identity of a user. The trial court originally denied Yelp’s attempt to quash the subpoena – and sanctioned it for trying – on the grounds that platforms had no right to stand in for their users to assert their First Amendment rights. We filed an amicus brief in support of Yelp’s appeal of that decision, which fortunately the Court of Appeal reversed, joining another Court of Appeal that earlier in the year had also decided that of course it was ok for platforms to try to quash subpoenas seeking to unmask their users.

Unfortunately, that was only part of what this Court of Appeal decided. Even though it agreed that Yelp could TRY to quash a subpoena, it decided that it couldn’t quash this particular one. That’s unfortunate for the user, who was just unmasked. But what made it unfortunate for everyone is that this decision was fully published, which means it can be cited as precedent by other plaintiffs who want to unmask users. While having the first part of the decision affirming Yelp’s right to quash the subpoena is a good thing, the logic that the Court used in the second part is making it a lot easier for plaintiffs to unmask users – even when they really shouldn’t be entitled to.

So Yelp asked the California Supreme Court to partially depublish the ruling – or, in other words, make the bad parts of it stop being precedent that subsequent litigants can cite in their unmasking attempts (there are rules that prevent California lawyers from citing unpublished cases in their arguments, except under extremely limited circumstances). And this week we filed our own brief at the California Supreme Court in support of Yelp’s request, arguing that the Court of Appeal’s analysis was inconsistent with other California policy and precedent protecting speech, and that without its depublication it will lead to protected speech being chilled.

None of this will change the outcome of the earlier decision – the user will remain unmasked. But hopefully it will limit the effect of that Court of Appeal’s decision with respect to the unmasking to the facts of that particular case.

Nov 192017
 

Originally posted on Techdirt November 15, 2017.

Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor’s attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It’s a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight.

Like the original ruling, it clings to the Supreme Court’s decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result.

Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech. Continue reading »

Nov 192017
 

Cross-posted from Techdirt November 14, 2017.

Earlier this year I wrote about Yelp’s appeal in Montagna v. Nunis. This was a case where a plaintiff had subpoenaed Yelp to unmask one of its users and Yelp tried to resist the subpoena. In that case, not only had the lower court refused to quash the subpoena, but it sanctioned Yelp for having tried to quash it. Per the court, Yelp had no right to try to assert the First Amendment rights of its users as a basis for resisting a subpoena. As we said in the amicus brief I filed for the Copia Institute in Yelp’s appeal of the ruling, if the lower court were right it would be bad news for anonymous speakers, because if platforms could not resist unfounded subpoenas then users would lose an important line of defense against all the unfounded subpoenas seeking to unmask them for no legitimate reason.

Fortunately, a California appeals court just agreed it would be problematic if platforms could not push back against these subpoenas. Not only has this decision avoided creating inconsistent law in California (earlier this year a different California appeals court had reached a similar conclusion), but now there is even more language on the books affirming that platforms are able to try to stand up for their users’ First Amendment rights, including their right to speak anonymously. As we noted, platforms can’t always push back against these discovery demands, but it is often in their interests to try protect the user communities that provide the content that make their platforms valuable. If they never could, it would seriously undermine those user communities and all the content these platforms enable.

The other bit of good news from the decision is that the appeals court overturned the sanction award against Yelp. It would have significantly chilled platforms if they had to think twice before standing up for their users because of how much it could cost them financially for trying to do so.

But any celebration of this decision needs to be tempered by the fact that the appeals court also decided to uphold the subpoena in question. While it didn’t fault Yelp for having tried to defend its users, and, importantly, it found that it had the legal ability to, it gave short shrift to that defense.

The test that California uses to decide whether to uphold or quash a subpoena is a test from a case called Krinsky, which asks whether the plaintiff has made a “prima facie” case. In other words, we don’t know if the plaintiff necessarily would win, but we want to ensure that it’s at least possible for plaintiffs to prevail on their claims before we strip speakers of their anonymity for no good reason. That’s all well and good, but thanks to the appeals court’s extraordinarily generous read of the statements at issue in this case, one that went out of its way to infer the possibility of falsity in what were at their essence statements of opinion (which is ordinarily protected by the First Amendment), the appeals court decided that the test had been satisfied.

This outcome is not only unfortunate for the user whose identity will now be revealed to the plaintiff but for all future speakers now that there is an appellate decision on the books running through the “prima facie” balancing test in a way that so casually dismisses the protections speech normally has. It at least would have been better if the question considering whether the subpoena should be quashed had been remanded to the lower court, where, even if that court still reached a decision too easily-puncturing of the First Amendment protection for online speech it would have posed less of a risk to other speech in the future.

May 262017
 

The following was cross-posted on Techdirt.

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.

Earlier this month, I helped Techdirt’s think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It’s also why sites like Yelp let users post anonymously, because often that’s the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.

But as we also see, people who don’t like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that’s a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.

There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can’t always fight them — for instance, like DMCA takedown notices, they may simply get too many — but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.

But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user’s speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms’ efforts to stand up for their users even more risky and expensive than they already are.

So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.