Block on Trump's Asylum Ban Upheld by Supreme Court
It is a truth (more or less) universally acknowledged that anonymous speech is protected by the First Amendment:
"Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity ... [T]he interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment.
But commercial speech receives fewer protections than other types of speech, such as political speech.
What did it take to overcome the somewhat-limited First Amendment rights of anonymity in a Yelp! review? In a recent Virginia state appellate court decision, it took a business promising that it tried really hard to match the negative reviews with their customer records (to test veracity), as well as their good faith belief that the reviews were false and defamatory.
Virginia's Unmasking Statute
Yelp urged the court to adopt the more anonymity-friendly standards from other courts, namely that of Dendrite or Cahill. But Virginia already has an unmasking scheme in place, one adopted after analyzing other states' standards.
Code § 8.01-407.1 sets forth a lengthy five-part showing that the person seeking a subpoena to unmask the anonymous Internet speaker must meet:
a. speech that actually is or may be tortious or illegal;
b. other efforts to identify the speaker have proved fruitless;
c. identity of the speaker is needed;
d. no case-ending (summary judgment, demurrer, etc.) motion is pending;
e. the individual subpoenaed have or are likely to have the information.
There is also a notice to the speaker provision, which allows the speaker to contest the unmasking.
At issue here was the second prong. The allegedly defamed company, Hadeed Carpet Cleaning, had a number of similar negative reviews, alleging price gouging, as well as other issues. One of the reviews came from an individual claiming to be in New Jersey. Hadeed does not operate in New Jersey.
For their "efforts," Hadeed compared the reviewers' claims with their customer records and found none that matched (charging double the estimate or damaging/shrinking the rugs). Those "fruitless efforts," plus Hadeed's good faith belief that the reviews were fake, sufficed for the Virginia trial and appellate court.
The dissent, at the appellate level, called Hadeed's arguments "self-serving," and noted that the company failed to show a requisite element of a tortuous statement, falsity:
"Nowhere in this cause has Hadeed claimed that any of the substantive statements are false. Rather, Hadeed maintains, these communicators may not have been customers, and, if they were not, the substantive statements may be tortious," Judge Haley noted.
"A business subject to critical commentary, commentary here not even claimed to be false in substance, should not be permitted to force the disclosure of the identity of anonymous commentators simply by alleging that those commentators may not be customers because they cannot identify them in their database."
Takeaways for Reviewers
Want to remain anonymous while still voicing your opinions? Stick to opinions.
The court noted that, in defamation cases, opinions are not actionable. However, facts supporting opinions are.
Here, the reviewers' opinions, that Hadeed Carpet Cleaning was terrible, would be protected. But the underlying facts asserted (charging twice the estimated amount, damaging rugs, etc.) were not.
An opinion stating, "This place is awful," may not be helpful for other customers, but at least it'll keep you out of the courtroom.
(This, by the way, is exactly the sort of free speech chilling effect that the various "tests" and statutes are meant to prohibit.)
Editor's Note, January 3, 2017: This article was first published in January, 2013. It has since been updated.
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