How Much Freedom of Speech is Too Much?

We're are at a crucial moment where the ability of technology to permit instant, unvetted and unfiltered commentary is running head-first into the justified concerns of those whose reputations can be torn asunder unfairly by it. It's a conundrum for sure and one that needs some serious sorting out.
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While we all rightly celebrate the protections afforded free speech by the First Amendment and are thankful, as President Obama said recently at the annual White House Correspondents Dinner, "We really are lucky to live in a country where reporters get to give a head of state a hard time on a daily basis -- and then, once a year, give him or her the chance, at least, to try to return the favor," an increasing number of ordinary Americans are wondering if there should be limits to saying or writing whatever you please in online forums that can sully someone's reputation with impunity and impair his or her ability to make a living.

To help sort out how much free speech is too much free speech, offended parties are turning to the courts, where so far the message seems to be one of ambiguity. For instance, earlier this year a jury in Fairfax County, Virginia heard a case brought by Christopher Dietz, a local contractor, against Jane Perez, who in 2011 had hired Dietz, her high school classmate, to do some renovation work in her home. It turned out Perez was dissatisfied by the work Dietz performed, locked him off the job site, failed to pay him and had to spend thousands of dollars more to fix what she claimed Dietz had done wrong. She also took to Angie's List and to Yelp, which has around 132 million unique visitors a month to its website, to complain about her experience working with Dietz. Her considered opinion: a one-star review and the admonition, "Bottom line do not put yourself through this nightmare of a contractor."

Dietz responded by filing a lawsuit against Perez, claiming her review was not only inaccurate but also sent customers fleeing -- five of 10 potential contracts disappeared, he testified at the trial -- and cost him $300,000 in lost business and up to another $500,000 from "harm to and loss of business reputation, insult and anxiety." He demanded $750,000. He also wrote about Perez, on Angie's List, "If theft was made, it was her stealing money and services from me. A very sad way to treat a former classmate who did $13K worth of work for free and was never paid a penny for his time or material."

In January, after a five-day trial and eight hours of deliberation, the jury declared the matter a draw, deciding that both parties had defamed each other but awarding neither of them any damages. Dietz told the Washington Post that while he was "shocked" by the verdict, he took comfort from the fact that the jury found that Perez had defamed him. For her part, Perez saw the verdict as a clear victory. "I think freedom of speech won in this case, and that's a good message to send," she said.

But if a similar case wending its way through the Oregon courts provides any additional insight, there remains hesitancy to protect such defamatory commentary. According to an Oregon court case, Christopher Liles attended a 2011 wedding held at Dancing Deer Mountain, a party venue located in Junction City, Oregon. During the event, "tensions arose" between the guests and the staff after the staff observed the guests "consuming alcohol" in a "manner" that violated the venue's "alcohol policy." Liles also was offended that the owners -- Carol and Tim Neumann -- and the staff began urging people to leave the event as early as 8:30 at night. Two days later, Liles took to Google Reviews and wrote scathingly of Dancing Deer Mountain under the headline "Disaster!!!!! Find a different wedding Venue." Liles continued, "There are many other great places to get married, this is not that place! The worst wedding experience of my life!" He complained that the "bridal suite" was nothing more than "a tool shed that was painted pretty" and he worried that the Neumanns were going to keep his $500 security deposit and figure out a way to charge him additional fees.

Carol Neumann sued Liles, claiming that the review was defamatory and was "an invasion of privacy by false light." She claimed that Liles' one-star review cost her thousands of dollars in lost business. Her attorney argued that there should be limitations to free speech without repercussions. Liles' attorney argued that his client's ranting was simply his protected opinion. A Lane County, Oregon judge sided with Liles, citing a 2001 Oregon law -- the anti-Strategic Lawsuits Against Public Participation (known as anti-SLAPP laws, which exist in 26 states) -- that protects Liles' right to write what he pleases in public forums.

Neumann appealed the judge's decision and, in March, the three-member Oregon Court of Appeals reversed the lower court's ruling and decided that Neumann could proceed with her defamation suit against Liles because a "reasonable factfinder" might be able to discern that Liles had not only shared his opinion online but also had conveyed facts that Neumann could potentially disprove in court. The ultimate denouement of the Oregon case will be closely watched for what it could portend for the future of how far online commentators are allowed to go in pursuing their arch agendas, free of any accountability or repercussions.

Such a ruling -- whenever it comes -- will also be watched closely by authors whose books appear for sale on Amazon and then quickly get reviewed by an increasingly large army of people who seem to have nothing better to do with their time. Mostly these reviews are thoughtful - even in their negativity -- and show at least some evidence that the reviewer actually took the time to read the book he or she is reviewing.

But not always, as I discovered recently. Apparently, Amazon's rule for reviewers is that they must wait until a book goes on sale before posting a review. Fair enough. Within hours of my latest book, The Price of Silence -- about the 2006 Duke lacrosse scandal -- being publicly released on April 8, an extremely passionate group of reviewers began posting one-star reviews on the Amazon page devoted to the book. It was soon obvious that they were a well-organized group and there was no way any of them had read the book that quickly, if for no other reason than it is a tightly wound 621 pages devoted to a balanced assessment of a complex event. That did not stop the haters, who were determined to poison the well.

One of the reviewers -- a "FransSusan" from McDonough, Georgia -- at least had the decency to concede she had not read the book before writing in her one-star review, "This idiot author obviously has some kind of political agenda. There's no doubt about the innocence of the Duke students. You have to ask yourself what is Cohan up to to write such nonsense!" Another review, posted within hours of the book's release, stated, "Cohan is writing fiction" and wondered, "Where is the ZERO star option?" Of the 87 reviews of the book, 61 are of the one-star variety, while 24 of the remaining 26 are either five-stars or four-stars. (Only about three of the 61 one-star reviews were from people whose purchase Amazon had "verified," meaning they likely never bought (or read) the book.) Up at the top of the page, the market's verdict has been rendered: this is a two-star book, not worthy of a moment's consideration.

Apparently, all this is just fine with Amazon, which as we learned from George Packer's elucidating expose of the company in the New Yorker, doesn't much care how authors are treated. Nor do Amazon's customer service representatives worry particularly whether these thoughtless reviews hurt authors' ability to make a living. And unlike the lawsuits brought by the small business owners described above, there do not appear to be any defamation lawsuits brought in this country by authors against Amazon or the reviewers on its website claiming that slanderous reviews hurt book sales -- although such a lawsuit seems inevitable at this point. (In the UK, a self-published author lost a 2011 case against a man who had written negative reviews of his book on Amazon.)

In reply to my digital inquiry about the fairness of Amazon permitting such clearly biased reviews from people who had not taken the time to read the book, a Regina B., at Amazon, replied, "I understand your concerns, but the review doesn't violate our posted guidelines, so I'm unable to remove it in its current format...We try to encourage our customers to give their honest opinions on our products while staying within our guidelines. As a retailer we are interested in cultivating a diversity of opinion on our products. Part of that is allowing our customers to air their honest thoughts on items they have received."

If only that were true. What's clear is that we're are at a crucial moment where the ability of technology to permit instant, unvetted and unfiltered commentary is running head-first into the justified concerns of those whose reputations can be torn asunder unfairly by it. It's a conundrum for sure and one that needs some serious sorting out.

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