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Online Reviews Protected Speech, Appellate Court Rules

Submitted by Amaris Elliott-Engel on Sun, 03/20/2016 - 14:09

The Oregon Supreme Court has ruled that a negative review of a wedding venue is protected by the First Amendment. In doing so, the court also set precedent for how to distinguish whether speech is protected opinion or a defamatory assertion of fact.

Justice Richard C. Baldwin, writing for the court, applied a Ninth Circuit test in Unelko Corp v. Rooney: "whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected." The Oregon Supreme Court set out a three-part test to answer that question: 1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; 2) whether the defendant used figurative or hyperbolic language that negates that impression; and 3) whether the statement in question is susceptible of being proved true or false.

The defendant was a wedding guest who made a negative review of the venue on Google Reviews, including complaining that the owners were rude, the owners made wedding guests leave 45 minutes early and that the bridal suite was "'a tool shed that was painted pretty.'"

The case is only the second time that the Oregon Supreme Court has applied the U.S. Supreme Court's ruling in Milkovich v. Lorain Journal Co., which held that, in determining whether a defamatory statement is constitutionally protected, it must be decided if a reasonable factfinder could conclude that the statement implies an assertion of objective fact about the plaintiff. The Oregon Supreme Court decided to follow the Ninth Circuit's test in Unelko and found that the review did not imply an assertion of objective fact and instead was an opinion on a matter of public concern. 

The trial court struck down the wedding venue's defamation lawsuit under Oregon's anti-SLAPP law, but the Oregon Court of Appeals reversed.

Will Right to Be Forgotten Spread to the US?

The New York Times' Farhad Manjoo writes that the right to be forgotten--or, more specifically, the right requiring search engines to erase the online search results about European citizens in favor of their privacy--could spread to the United States. For example, a French regulator has ruled that all of Google's sites, including American versions, should grant the right to be forgotten on Google sites that are not country specific.

The United States and Europe, which have consensus on what constitutes copyrighted content, do not have the same consensus on what should be private information, Manjoo writes. But the law on which the right to be forgotten in Europe is based has no territorial restrictions.

Could Trademark Law Change From Redskins Fight?

NPR's Kenya Downs mused in a recent post whether the fight over the propriety of the Washington Redskins' trademark could end up changing this body of law. After years and years of efforts by American Indian activists to have the trademark canceled on the grounds that it is racially offensive and disparaging, petitioners won the cancellation of the trademark and the U.S. Department of Justice also has decided to intervene in the lawsuit. The team's owner argues that the Lanham Act, which prohibits disparaging trademarks, is too vague and an unconstitutional impediment to free speech, but trademark attorneys told Downs that the First Amendment challenge to the Lanham Act will be a tough sell. However, lawyers said the case's outcome, whether the football team wins or not, will impact whether ethnic groups can challenge trademarks as offensive.

Rap Music Next First Amendment Vanguard in Supreme Court

The U.S. Supreme Court will be getting an education on "the rhythmic, slangy — sometimes violent — poetry of rap music" as it considers the standard by which violent speech can be judged as a true threat this term, The National Law Journal's Tony Mauro reports. Elonis v. United States, which is set for argument December 1, "asks whether the online posting of threatening language like that found in rap lyrics violates a federal law against transmitting 'any threat to injure the person of another' across state lines," Mauro further reports. Anthony Elonis was convicted of threatening law enforcement, his spouse and others from the rap-like posts he made on Facebook. Elonis argues that pure speech must be judged by a subjective intent standard, but the government says it only needs to prove that a reasonable person would view speech as a true threat.

Prosecutors Drop Most Charges Against Journalist/Anonymous Spokesman for Linking to Hacked Files

The Dallas Morning News reports that prosecutors have moved to drop most of the charges against journalist and activist Barrett Brown related to posting stolen data online. They want to drop all but one of 12 charges "accusing him of trafficking in data, including credit card numbers, that was stolen from private intelligence firm Stratfor" by hackers, the Morning News says. "He had faced charges of aggravated identity theft and device fraud in a case that has received national attention for its free speech implications," the Morning News also says.

Op-Ed: Sexual Orientation Conversion Therapy Is Hateful ... But Should Be Protected Speech

Lawyers for the libertarian Institute for Justice wrote in a New York Times op/ed that the Ninth Circuit was wrong to rule against First Amendment challenges to a "California law that prohibits licensed medical providers from using talk therapy to try to change a minor’s sexual orientation." The Ninth Circuit found that such therapy is “conduct,” not “speech,” according to the piece. The risk of allowing such a ruling to stand is that labeling expression as conduct, not speech, allows the goverment to regulate expression in any which way, Institute for Justice argues.

Free Speech Issue Triggered By Revenge Porn Law?

California has passed a law to criminalize, as a misdemeanor, posting "identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation," The Guardian reports. The ACLU opposed the legislation on free-speech grounds.

Yahoo's Marissa Mayer: "Releasing classified information is treason and you are incarcerated."

Tech firms, including Yahoo and Facebook, want to be able to disclose more on the requests they receive from the government for Internet surveillance of Americans. The reason for not doing more earlier, the Yahoo CEO said, was the risk of committing treason and being imprisoned for it. In court, Yahoo is arguing that not being allowed to engage in the dialogue on surveillance or respond on the specifics of what it has been asked to do is a  prior restraint on its free speech. Historically, governmental retraint on speech prior to publication or utterance has been extremely frowned upon and tends to get struck down by judges. That argument may be a stronger one for Yahoo to prosecute in the FISA court.

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