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The Virginia Supreme Court heard oral arguments Monday in a new type of Yelp case. By now, we're familiar with the defamation and the SLAPPs and the non-disparagement agreements and the not-technically-extortion-but-sounds-like-it.
Well, Yelp v. Hadeed Carpet Cleaning is different. Hadeed Carpet Cleaning wanted to sue the authors of critical reviews posted about it on Yelp. This in itself isn't new; businesses have been trying for years to use lawsuits to get critical reviews off Yelp, though it usually doesn't work because the reviews are not only opinions, but because lawsuits can't be used in states that have anti-SLAPP laws.
Here's where it gets fun. Hadeed served a subpoena on Yelp to get the identities of the seven reviewers who Hadeed claimed couldn't be found in its customer database, and whom Hadeed couldn't otherwise identify. Because they weren't in the database, Hadeed concluded that the reviewers falsely claimed they were Hadeed customers when posting negative reviews. Yelp objected to the subpoenas on the ground that the First Amendment protects the reviewers' right to anonymous speech. The Virginia Court of Appeals said Yelp had to surrender the names.
The decision of the appellate court rested largely on the fact that there is no First Amendment right to make factually false statements. That's what Hadeed was trying to prove -- namely, that the seven reviewers it couldn't locate in its database weren't Hadeed customers. The Court of Appeals agreed that if they weren't customers, then their Yelp reviews rested on a factually false premise. Of course, there would be no way to know that without figuring out who the reviewers are, which would necessitate infringing on their anonymous speech rights (which they may or may not actually have, depending on whether their statements were true or false). That's your basic catch-22.
This isn't the first time a court has heard this issue. According to Paul Alan Levy, Yelp's attorney, he's made this same argument seven times before. And in 11 states, a plaintiff has to do more than merely suspect that a review is false before unmasking the reviewer. One of the Virginia appellate judges dissented on this very issue, saying that "Hadeed candidly admitted that it cannot say the John Doe defendants are not customers until it obtains their identities." This suspicion alone, said both Levy and the dissent, shouldn't override the reviewers' anonymous speech rights.
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