Over the past few years, seven people have been so dissatisfied with the service they received from Hadeed Carpet Cleaning of Alexandria, Virginia, that they took to Yelp to air the details of their dissatisfaction. They, like so many unhappy customers since Yelp launched in 2004, did so under pseudonym.
The right to complain—anonymously or not—is a right that Americans enjoy (and they do seem to enjoy it). But such complaints, in order to receive legal protection, must be factually true. "There is no constitutional value in false statements of fact," the Court has held.
Hadeed Carpet Cleaning believes that those seven unhappy reviewers lied in their Yelp reviews. It's not that the little details of the reviews were wrong, but that they were made up altogether. The seven reviewers were never customers at all, Hadeed Carpet Cleaning claims. If that is indeed the case, then the reviews are false. And if they've additionally caused harm, then the reviews are defamatory. (Though the decision does not explicitly say so, the implication is that false reviews on Yelp may be the pseudonymous, strategic communications of a competing firm.)
But in order to press that claim, Hadeed Carpet Cleaning would need to know who made those reviews. And so to find out, they subpoenaed Yelp to turn over the identities. Yelp refused, and the case headed to court. Earlier this week, the Court of Appeals of Virginia ruled that Yelp must out its seven anonymous reviewers.
Anonymous speech is a central component of America's First Amendment legacy. The Supreme Court has repeatedly protected the right to speak anonymously, holding in 1960 that, "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." In 1995 they affirmed that earlier position: "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority." This right, the Virginia Court of Appeals noted, does not disappear at a website's log-in screen. "The right to free speech is assiduously guarded in all mediums of expression, from the analog to the digital," it held.
That position notwithstanding, the court continued, the right to speak anonymously is not an absolute one: "Defamatory speech is not entitled to constitutional protection."
The court turned to Virginia's state law, which requires, among other things, that the plaintiff need show that the reviews "are or may be tortious or illegal," or that Hadeed Carpet Cleaning has "a legitimate, good faith basis" to believe that they were the victim of actionable conduct. The court held that the lower court's assessment was correct: "If the Doe defendants were not customers of Hadeed, then their Yelp reviews are defamatory." Moreover, the court believed that Hadeed had conducted a sufficient review of its own corporate records to have "a legitimate, good faith basis" for believing the reviewers had invented their claims.
Paul Levy, an attorney at the advocacy group Public Citizen who argued the case for Yelp, says that he believes this is where the court's ruling falters. The standard for a claim of defamation is just too soft, not requiring any showing of falsity or damages.
"They don't say that the substance is false," he told me. "They say, well, we can't be sure this person is a customer. No one with this pseudonym from this city is in our customer database. Well, of course! It's a pseudonym. They haven't shown anything that really would lead any person to believe that this isn't a customer."
Levy and Public citizen believe "If you've been defamed, you ought to be able to [show evidence of your claim of defamation]," Levy says. "And that's both what Hadeed didn't do here—they just refused—they didn't do that here and the court didn't require them to do that." Many other state courts, such as Delaware, Maryland, D.C. (not a state per se, but, alas), Arizona, California, Texas, New Hampshire, and Indiana, have all required supporting evidence in order to unmask the identities of anonymous communicators online.
But the Virginia Court wasn't looking at the same code as those other state codes. It was looking at Virginia state law, whether that state law was constitutional or not. "We are 'reluctant to declare legislative acts unconstitutional, and will do so only when the infirmity is clear, palpable, and practically free from doubt'," the court wrote, quoting from an earlier decision. The court continued, saying this is because "any reasonable doubt
as to the constitutionality of a statute must be resolved in favor of
its constitutionality," again quoting from an earlier decision. With those principles in mind, the court "decline[d] to declare [the unmasking statute] unconstitutional."
Instead, that job will next fall to the Virginia Supreme Court, as Yelp has already decided to appeal the decision, Levy told me.
The case illuminates the growing role of courts in mediating anonymous speech. In an earlier time, when anonymous speech happened via paper and ink, there may have been no one for a victim of defamation to subpoena. If you print your diatribes yourself, and plaster them about town, without at least very good detective work, there's no one who could possibly reveal your identity.
That's no longer the case. Online, with the exception of highly sophisticated Internet users who take deliberate steps to cloak their identities using encryption, there are many third parties who know the identities behind anonymous communicators. There are sites such as Yelp, who might have your real email address; there's your Internet service provider. If you wrote your diatribe on your own, nameless website, there's still be a domain name provider and a hosting service. Online, anonymity is spurious; someone out there almost always knows who you are. Each one of these links in the chain could be subpoenaed, and if and when they refuse to comply, courts will have to decide whether the claim is meritorious, or whether the anonymous actor deserves protection.
That's why the standards that courts choose to employ in making those decisions are so important. Will they, like Virginia did, defer to a claim without a showing of falsity or harm? Or will they require more? How will they balance the very real concerns of those whose good name is at stake, with those who may be vulnerable to retaliation, say an employee who speaks ill of an employer, or a citizen of a police chief?
But that's not necessarily a bad thing. If courts can craft a fair standard, they'll be able to balance the competing interests of free speech and protection from defamation on a case-by-case basis. If the court finds that you should be found, you'll be found.
Levy, for his part, thinks that's right."That's the way it should be," he told me. "Because you shouldn't, and Public Citizen doesn't believe that you should be able to go accuse somebody of wrongful conduct, make a very factual statement, which you know to be false, and get away with it." Courts just need to make sure that is, indeed, the case.