Websites raise free-speech questions

Published 9:00 am Monday, May 30, 2011

Column: Inside the First Amendment, by Gene Policinski

Freedom of speech might logically seem to apply the same way whether the speech takes place on the street corner or on the Internet.

But that basic First Amendment premise is as yet unsettled in our new Web world.

Gene Policinski

An intricate set of laws and judicial opinions on free speech and defamation has evolved over several centuries, from a system that existed mainly to protect the elite from criticism to one that enables anyone to seek compensation for what they see as unfair damage to their reputation.

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Truthful statements — even those that hurt — have been deemed protected speech, as is clearly indicated opinion.

For public figures such as politicians and entertainers, the legal bar for a successful lawsuit is set higher in libel law than for private individuals, so that vigorous and robust debate on public issues is not chilled. Then there’s the rare instance of the libel-proof plaintiff — whose reputation is so poor that it cannot be damaged further.

Now, that crafted set of laws and rulings is confronted with a new situation: websites such as Yelp and Angie’s List, where positive or negative ratings or comments are posted — on some sites, anonymously — by those who have received the services of teachers, painters, doctors, lawyers and a host of other professionals.

Are such personal postings essentially opinions on matters of public interest and thus protected speech? And what of the additional impact of the Web, which is instant and pervasive in a particular community but also global in reach, thus potentially spreading defamation, if any, around the world?

Such issues are yet to be settled. But a few recent lower court decisions appear to lean toward the free-speech side, even as new legal tactics emerge that would restrain commentary and criticism.

In Minnesota, a county judge recently dismissed a lawsuit by a doctor who objected to an online critique from a man whose father was undergoing treatment. reported that St. Louis County District Judge Eric L. Hylden said the statements were “nothing more or less than one man’s description of shock at the way he and in particular his father were treated by his physician.”

The New York Law Journal’s reported recently that a New York court rejected an attempt by a Caribbean resort to force Google to turn over the name and other information about someone who posted an email with comments criticizing the resort company’s treatment of native Jamaicans. An Appellate Division judicial panel upheld a lower court decision that the online comments, viewed as a whole, were protected opinion. The email provided links to publicly available sources that “allow the reader to arrive at his or her own conclusions, indicating … the words are meant to provoke either thought or discussion and are therefore protected speech.”

“The culture of Internet communications,” the court continued, “as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything-goes writing style’” that consumers recognize as such. The appellate panel also wrote that “the anonymity of the email makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.”

A recent article in the online technology magazine Ars Technica describes a document being marketed by a company, Medical Justice, in which patients — before treatment — sign away ownership of any future commentary they might make about the medical professional or treatment. Some legal experts are dubious that such agreements will hold up in court, but the tactic is notable as an innovative, pre-emptive attempt to deal with online criticism.

Then there are questions involving the practical problems of determining global damages to a reputation, or libel laws that have, at best, only a national reach.

Any of these examples are good discussion points as we reset the balance in our Information Age between full and open debate on matters of public interest required in a free society, and providing proper protection against unwarranted and unsupportable attempts to harm our good names.

Gene Policinski is the executive director of the First Amendment Center.