A Right to Lie?

Mr. Deez

Mr. Deez

Beer Prophet
Three free speech cases that all involve lying are before their respective high courts. The US Supreme Court is reviewing an Ohio law that prohibits political candidates from intentionally or recklessly making false statements. Link.

A small business owner who is upset about negative reviews on Yelp has subpoenaed the real names of the reviewers for the purpose of suing them for defamation. Yelp fought the subpoenas in Virginia state court but lost. Big implications for people who post reviews on line. Link.

Finally, the Texas Supreme Court is reviewing a case that deals with whether or not a court can order defamatory statements to be removed from the internet. Link.

The common theme in all of these cases is how strong someone's rights are to lie. Interesting.
 
That Yelp case strikes me as especially interesting. The fact of the matter is that being able to write online reviews gives people an incredible amount of power and influence over a company's success - in some cases an inordinate amount. Can I go online and write whatever I want with no regard for truth knowing it can very likely damage another person's livelihood?

From a legal standpoint, is it possible to "slander" a business? For example, if I went around telling everyone I knew that the Chili's down the road is grinding up horse meat in its burgers, and it was somehow proven and documented, could Chili's sue me?
 
Deez -- these are indeed interesting cases that threaten to bring the "freedom of information" cockroaches into the light.

I don't think anyone can argue that the press exposing the New Jersey Governor's office for a mean-spirited dirty trick on the George Washington Bridge or outing the sexting Anthony Weiner is a bad thing. Photographers who hound celebs or reviewers that diss athletic actresses for being "fat" get the same protection, but not the same public support.

As far as the Yelp reviews and my understanding of fair comment, it would (and should) be illegal to acuse Chili's of grinding up horse meat and putting it in the food unless it is true. However, it would be within fair comment to say, "I've smelled a lot of horse manure and I believe it would taste better than the Chicken Enchilda Soup." even though a lot of people, including me, find the soup delicious. Opinions are protected. Untruths have some legal protection. When inaccuracies appear in stories covering government officials and "public figures" then "absence of malice" is a defense.
 
In business disparagement like slander, opinion is protected. This seems to me to be where the line is drawn between the examples that you have described. The on-line review case is interesting. I guess in my little perfect universe, I would like the court to examine the statement first and decide whether the discovery can be had (which actually seems like what occurred). The first amendment (I am not really sure how this even applies between private parties) should not protect the identity of someone who slanders someone else.
 
Crock,

You are right. Negative opinions don't constitute defamation. If you say Chili's food sucks (an opinion), that's fine, even if most people would say their food is good. If you say they serve horse meat or claim you saw a rat in the kitchen, those statements better be true, because you'd be asserting an alleged factual statement. I don't think it should make a difference if it's posted on a website or published in a newspaper.

I do have to correct you on something that will sound like nitpicking, but it makes a difference. Absence of malice is not a defense. The presence of "actual malice" (which means the defendant knowing that the statement is false or consciously disregarding whether or not it is false) is an element of the plaintiff's case. The big difference is that a defendant has the burden of proof on a defense, but the plaintiff has the burden of proof on an element of his case.

Personally, I think the "actual malice" requirement is nonsense and goes way too far and makes the cases far too difficult to prove. I don't think the fact that the plaintiff is a public official or that the defendant is a media defendant should make a difference in the substantive law. Furthermore, there's no question that weakening the defamation law has made media accuracy sloppier and promoted sensationlism.

I understand why the Supreme Court imposed this requirement. Prior to the early '70s, if a media defendant ran a negative story against anybody, most states made truth a defense rather than an element of the case (meaning the defendant had to prove that the story was true) and imposed strict liability on the defendant (meaning it didn't matter what the defendant knew, didn't know, or should have known about the story's accuracy). Furthermore, a nominal damage award could support a punitive damage award (meaning the court award money for no reason other than to punish the defendant and teach him a lesson even if no real harm was done). That's too easy, and if this was still the law, lawsuits would fly every time a media outlet published anything negative about anybody. (For a historical perspective, the Supreme Court interfered in state tort law, because liberal media outlets were getting sued for running negative stories about Southern public officials and politicians during the civil rights movement, and the Court thought that was infringing on their free speech rights.)

I'd take a more moderate approach. I'd make the plaintiff prove that the statements were false, wouldn't impose strict liability, and I'd require him to prove some degree of harm to support a punitive damage award. However, I wouldn't require him to prove actual malice. Simple negligence should be enough or gross negligence if seeking punitive damages.
 
Used to defend defamation cases but haven't kept up with case law and I am wondering why the names of the critics are needed for a defamation action against the publisher.

Why sue the author if the publisher has pockets with cash? If the publisher tries to defend itself it has to out the critic anyway, no?
 
It is pretty common today to look online before choosing a restaurant or just about any other type of business. So the Yelp case is an important one in trying to make these rating sites more valid. The way it is now a bitter ex-employee, competitor or lonely fat kid could be filling them out without any recourse.
 
NJ,

Thanks for the info on the Communications Decency Act. That explains the clear cut reason why Yelp isn't a proper party. However, I think that even without the CDA, it would be tough to get at them for simply publishing a review.
 
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