Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

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Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.

Lots of calls to end anonymity on the Internet lately. A bill introduced in New York – a so-called Internet Protection Act – would require bloggers to remove posts not made under a real name. A couple of well-known legal bloggers don’t permit anonymous commenting on their blogs.

(Also, many comments – and publications – aren’t technically anonymous, but are pseudonymous, meaning published under a false name. In both cases, the true identity of the author is concealed. There is a potential for greater mischief when postings are made under another individual’s name, with the purpose of attributing the statements to that individual.  I find the second possibility more troubling, although an argument can be made that the First Amendment permits this kind  of satire, at least as to public officials.)

I am sympathetic to the arguments against web anonymity. Legal gossip site Above the Law‘s commentariat can be a little scary. Read a post on something as innocuous as spring bonuses and the comments will run the gamut from actively, hatefully racist to homophobic to possibly defamatory to definitely creepy and deranged. And I make it a point never, ever to read the comments on national news sites. Just, eww.

But there is a long, even treasured, tradition of anonymous commentary in free (or semi-free) nations. Benjamin Franklin, unable to convince his brother to publish his articles, became “Silence Dogood,” a widow with an exceedingly sharp edge. In one letter, “she” wrote:

Now I bethought my self in my Sleep, that it was Time to be at Home, and as I fancy’d I was travelling back thither, I reflected in my Mind on the extream Folly of those Parents, who, blind to their Childrens Dulness, and insensible of the Solidity of their Skulls, because they think their Purses can afford it, will needs send them to the Temple of Learning, where, for want of a suitable Genius, they learn little more than how to carry themselves handsomely, and enter a Room genteely, (which might as well be acquir’d at a Dancing-School,) and from whence they return, after Abundance of Trouble and Charge, as great Blockheads as ever, only more proud and self-conceited.

While I was in the midst of these unpleasant Reflections, Clericus (who with a Book in his Hand was walking under the Trees) accidentally awak’d me; to him I related my Dream with all its Particulars, and he, without much Study, presently interpreted it, assuring me, That it was a lively Representation of Harvard College, Etcetera. I remain, Sir, Your Humble Servant,

SILENCE DOGOOD.

Common Sense was originally published anonymously, and apparently with good reason: England eventually tried Thomas Paine in absentia for sedition (albeit for other things he had written). Anonymity gave us Pope and Swift. Daniel Defoe would likely have been crucified for Moll Flanders. George Eliot (Mary Ann Evans) might not have been published at all. More recently, publishing anonymously or under a pseudonym has permitted authors to write on subjects considered taboo or controversial: Go Ask Alice (drugs and teen sex); Primary Colors (the ugly truth of political campaigns). Also, have you seen a little magazine called The Economist?

I recognize that a comment calling another’s personal sexual proclivities into question does not rise to the level of Common Sense in the marketplace of ideas. But neither did Franklin’s Silence Dogood letters, or another pseudonymous Franklin publication, Poor Richard’s Almanac. Many writers begin anonymously or pseudonymously and eventually reveal themselves. It may be that there is something nurturing and worthwhile about anonymity for some, that permitting them to participate in the conversation on their own terms allows them, in time, to display their ideas more openly. This growth comes at the cost of weeds, and we may have tolerate them, or risk losing the garden altogether.