By MACAULEY VENORA, Public Policy Intern
Those who are written about about in newspapers are not always pleased with the authors’ views. However, the First Amendment right to freedom of the press permits the dissemination of information, especially related to matters and people of public interest. Most politicians, actors, and others with a public persona come to expect a certain level of scrutiny, no matter how unflattering. The public seeks the truth, and the target subjects are not always going to be pleased. The same holds true with web content and “user generated content.”
With the advancement of technology, websites like Yelp and Glassdoor make it easy for consumers to find quality restaurants, medical, health and other local services through either an app on their smartphone or via an Internet webpage. These sites will allow a consumer to search for a type of service, and then take them to a new page where they have ranked the top companies based on the quality of their customer-driven reviews. On the other hand, these sites have made it easy for those same consumers to seek out which restaurants and services to avoid by allowing the public to give less than stellar reviews if unsatisfied with the service.
Similar to a newspaper article or review, when a company is negatively reviewed, it can act as a deterrent for potential business. Negatively affected companies may react to these types of reviews by filing a strategic lawsuit against public participation, or a SLAPP suit for short. Companies that are unhappy with the reviews a customer has given them can file these suits as a way to intimidate and burden the reviewer with the threat of costly litigation. Many times, these suits are not even filed with the intention of winning, but solely to force someone to remove the criticism or face litigation, which many individual consumers would rather not do.
SLAPP suits harm commerce and could have a negative effect on consumer trust by creating a false sense of reality where no bad company exists. Not to mention the fact that they are, in a way, controlling free speech. Simply because a company has the financial capabilities and resources to file these lawsuits, does not mean that they should have the freedom to do so. Freedom of speech is a premise that this country was founded on, and while this doesn’t necessarily violate the First Amendment, it certainly feels that way.
The newspaper industry is no stranger to fighting for its freedoms protected by the First Amendment. Journalists and newspapers face the same type of threat faced by commenters on Yelp. An article or Op-Ed criticizing a company, figure or service could possibly bring on these suits. Journalism and newspapers are rapidly expanding to the Internet, an outlet where it is becoming easier to create a news report or have an opinion available to the public. A SLAPP suit would compromise an industry that from its inception has been built on the freedom of expression.
A Possible Solution?
The United States Congress has sought a possible solution for this issue. Congressman Blake Farenthold (R-TX) introduced legislation last year, H.R. 2304, the SPEAK FREE Act of 2015, that would allow consumers who have been targeted by these SLAPP suits to file a special motion to dismiss, or an Anti-SLAPP suit, in hopes of avoiding the burdensome cost of litigation by more easily dismissing the original suit. In other words, the bill allows a consumer to avoid being sued when the basis of the litigation is their meritorious criticism.
The intent of this legislation is praiseworthy. The average consumer should not be forced to remove their valid criticism of a business simply because the company is upset and has the ability to use the financial cost of litigation as an intimidation tactic. The cost of litigation to the average American consumer is very high, and even higher when you compare it to the minuscule cost of removing a comment from a website like Yelp.
On its face, this bill looks to fix the underlying issue of SLAPP suits, but under a microscope, some potential problems arise that will likely be addressed by legislative counsel. At a recent hearing before the House Judiciary Subcommittee on the Constitution and Civil Justice, the bill was put under a lens for discussion. No one disagrees with the premise of the bill, but some constitutional problems were raised. Specifically, the potential expansion of federal court jurisdiction, a power the Congress doesn’t have as outlined by Article 3, Section 2. Another issue rests on whether or not the special motion to dismiss, a main idea of the bill, would violate a party’s 7th Amendment right to have a trial by jury. These are valid concerns that were uncovered at an early stage and should be addressed as the congressional process plays out.
The remedy for unflattering speech is more speech, not silence. Allowing companies to control and silence an opinion merely because it is unfavorable to them and they have litigation as a tool may legally be right, but is almost certainly wrong on policy grounds. The threat of criticism is an incentive to keep standards high and customers satisfied.
For the newspaper industry, the threat of criticism is an incentive to keep reporting the truth despite attempts to suppress speech – the very essence we have always stood behind.