Blake Deal: Yelp misusing First Amendment as measure of convenience

The virtual world of the internet is once again converging with the concerns of reality.

Yelp, an online review and information website, is appealing to the California Supreme Court to overturn a lower court ruling demanding the company to remove defamatory reviews. The appeal, if lost, could set a new legal precedent, allowing the state of California to police the comments hosted on other online companies’ websites as well, including social media sites frequently used by university students.

Yelp has decided to frame the court case in terms of free speech, when in reality it is not so much about free speech as it is about convenience. The main reason Yelp has decided to adopt the vocabulary of “free speech” so that they, not the state of California, may control their website’s content. Placing the First Amendment into the foreground is a shrewd way for Yelp to mask the fact that they intend to defend their own best interests, while simultaneously presenting themselves as champions of some notion of human rights. There is nothing objectionable to Yelp’s legal posturing, since it is a good defense, but those observing the court case from afar ought to prevent themselves from becoming beguiled by such language.

Because it is a matter of legal posturing, Yelp’s court case does not have such dire implications for free speech as the blogosphere or other online articles have recently argued. Online companies like Yelp already regulate comments posted on their websites according to their content guidelines, so the issue is not regulating people’s speech but an issue of who it is that gets to do it.

No online company favors unqualified free speech, yet many insist upon portraying the court case in these terms. Hardly anyone will defend the merit of defamatory comments, yet when it comes to defending one’s business from government encroachment, they suddenly acquire new importance. Yelp higher-ups appeal to decontextualized constitutional principles merely as a means to save themselves time and money.

Some argue these recent events violate free speech by explicitly contradicting Section 230 of California law’s Communications Decency Act of 1996, which explicitly states websites hosting speech content are not held liable for such content. However, the lower court ruling does not hold Yelp liable for the defamatory content itself, but orders them to remove it on behalf of the reviewer who refuses to do so. Whether this order is “a frontal attack on Section 230,” as LA Times reporter Michael Hiltzik argues, remains to be seen. If the lower court ruling against Yelp is upheld, the courts may inspire legislatures to add a caveat to Section 230, explaining that although companies may not be liable for defamation hosted on their websites, they are still responsible to remove such comments if the offender fails to do so.

To counteract such an outcome, Yelp is pushing specific federal legislation nick-named “Right to Yelp” bill and the SPEAK FREE Act to exonerate themselves of any legal obligation from the start. Likewise, Facebook, Twitter, Microsoft and 30 online news organizations have chimed in on the controversy, contending alongside Yelp that the California state ruling would “silence a vast quantity of protected and important speech” and that it “could have serious repercussions for freedom of the press in California.” Like Yelp, none of these companies wish to submit any of their regulative control to the government and enshrine their legal justification in the sentimental language of freedom in their own defense.

Supposedly, removing a single review judged to be defamatory threatens the very fabric of the country. But it doesn’t. Facebook already enforces “community standards,” and Twitter has no qualms about permanently banning users they deem offensive. All of these online companies are already perfectly comfortable banning content they deem defamatory or contrary to their own code of conduct.

No one in the state of California, or the rest of the United States for that matter, possesses the right of unqualified freedom of speech or expression. There are always legal and cultural parameters according to which we judge people’s actions, which is why, for example, defamation lawsuits exist. It is also why a California law exists which states any person who threatens to commit a crime verbally or in writing may face legal consequences.

Those who feign protection under the First Amendment, like Facebook, Twitter and Yelp often engage in a series of similar tactics. They would argue speech has parameters, actions have consequences and such malicious and harmful behavior ought not be condoned. Yet, when on the defensive, all of these parameters are cast off and people become consumed with a patriotic quasi-religious fervor and worshipful awe of the First Amendment.

It is not as if we ought to reject the First Amendment. Freedom of speech is an extremely important part of our country’s history and continues to be a touchstone of our civil rights; the problem is that so many invoke it when it does not apply. It is not what is at issue. Individuals and companies use it as a blanket justification to absolve themselves of any situation.

The First Amendment ought to be fiercely protected. But, people turn situations into an issue of free speech when free speech is not the issue. What is at issue with Yelp and a number of other online companies is convenience and expense. Free speech vocabulary transforms the situation into a clash of ideals, when it reality it is a clash between competing groups fighting for control.