Photo: Mark Wemple
Of Counsel - Florida Law
Fighting words: The First Amendment and anonymous online speech
Does the First Amendment protect anonymous online speech if it's not true?
There’s nothing in Deborah L. Thomson’s resume to indicate she’s the sort of attorney who goes out of her way looking for a fight.
“Our philosophy here at work, we prefer for cases to settle amicably,” says Thomson, a partner at the Women’s Law Group in Tampa. “We prefer the collaborative process, not having to go to litigation, because litigation is not a fun process. It’s a stressful process and a costly process. My nature is to resolve things.”
It might have been easier to stick to her credo and ignore the unflattering comments that someone posted about her on Avvo.com, a lawyer-review and rating website. But Thomson can’t do it. The anonymous comments, she says, were untrue and defamatory. She refuses to let them go unchallenged.
“Everybody has a right to express an opinion,” she says. “They can speak the truth, but you can’t say false things about somebody. That is not protected. Free speech is protected. Opinions are protected. But if it’s false, it’s not protected. That’s the whole basis of my following through with this because this person said that I didn’t show up for a nine-hour mediation because I have vacation days. That has never happened. It’s just untrue.”
The Sept. 24, 2013, Avvo posting, attributed only to “a divorce client,” also accused Thomson of failing to subpoena critical documents relating to a divorce case. Thomson, in response, doesn’t think that the writer of the review was actually a client of hers and that the posting is simply “a personal attack.” She thinks she knows who the poster is, but, to pursue a defamation case, she needs Avvo to hand over the anonymous poster’s name — and Avvo has so far refused.
The case, most recently heard by Washington State’s Court of Appeals, is getting national attention. Legal observers see it as a test of how far the First Amendment can go in protecting anonymous online speech. In July, the Washington court sided with Avvo, contending that Thomson did not provide the court with enough evidence to prove that defamation occurred. Consumer groups declared the decision a victory for online anonymity, and Avvo saw it as a victory, too.
“Whether they’re leaving reviews on Amazon or commenting on an op-ed in their local paper, consumers have a right to protect their anonymity online and to freely express their opinions on the products and services provided by businesses,” says Josh King, Avvo’s general counsel. “This is a developing area of the law, and this case helps set a precedent for consumers’ legal rights when expressing themselves online. At Avvo, in order for us to deliver consumers the transparency they’ve come to expect, we need to protect and provide the ability to comment on the quality and delivery of professional services without fear of a lawsuit.”
Thomson says that’s not the point.
“This is not a free speech issue,” she says. “This is a false speech issue. If you are going to allege false facts, that’s not protected by our Constitution. It has become too easy for people to do this online. It’s damaging to reputations. It’s damaging to business, to my own economics. Having potential clients see this on Avvo, obviously it’s damaging.”
Thomson wasn’t deterred by the July court of appeals decision. She says the decision, rather than being a victory for the online posters, was helpful. It gave her guidance, she says, that enables her to amend her complaint.
So, she’ll keep going.
“I tell my kids — pick and choose your battles,” Thomson says. “It’s really not worth it to fuss and fight over every little thing. By having that kind of attitude, you’re going to add a lot more stress to your life. But this is one of those important cases that I’m going to continue to pursue. I want it rectified. I want it remedied. Whatever avenue I have to go, I’m going to continue to go.”