Ninth Circuit Mucks Up 47 USC 230 Jurisprudence….AGAIN!?–Barnes v. Yahoo

13 05 2009

By Eric Goldman

Barnes v. Yahoo!, Inc., 2009 WL 1232367 (9th Cir. May 7, 2009). My 2005 blog post on the lower court ruling.

Reading Barnes v. Yahoo, I had an overpowering sense of deja vu. Almost precisely 2 years ago, a 3 judge panel wreaked havoc on 47 USC 230 jurisprudence in the initial Ninth Circuit Fair Housing Council v. ruling via a set of terribly drafted opinions that sent shock waves through the Internet industry. That mess was so bad that the Ninth Circuit needed to take the case en banc to clean up the mess. The en banc ruling didn’t change the substantive result– still lost–but the en banc majority opinion was much cleaner and had less pernicious superfluous language. As a result, the lower courts have so far cabined its effects on 230’s strong immunization; out of a half-dozen cases citing the opinion, only the StubHub case has cited it in favor of the plaintiff.

In light of the Ninth Circuit’s troubled history with 230, it seemed reasonable to assume that Ninth Circuit judges would draft 47 USC 230 opinions with extra care and precision. No such luck. Instead, this opinion in Barnes v. Yahoo is filled with gratuitous and dangerous dicta, sloppy reasoning and sloppy language–just like Kozinski’s first opinion in the case. Reading it, I thought, “oh no, not again.” What is it about 47 USC 230 cases that causes otherwise talented Ninth Circuit judges to lose it?


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