A. The 1st Amendment permits any statement in the form of an opinion; ratings websites are constitutionally protected

B. Options for government regulations to cabin content and foster standards

4. Finally, the government could require that the websites list the particular discrepancies that led them to that rating:

But not why we should give a f*** whether people don't like how other people think about their products, businesses, or hair color? And not why we would consider for an instant substantially betraying our respect for freedom of speech in order to accommodate the feelings of whiners who bring libel actions? Are you being fair to yourself by introducing this as though it were an essay only valuable to people who have already made up their minds that the First Amendment is less important than the hurt feelings of hotel chains? By starting out this way, you pretty much ensure that most readers—including under other circumstances readers like me—won't even bother going on to the next sentence.

Ratings websites are constitutional? What? Have we somehow become a society where everything is forbidden that is not allowed, and conduct must be "constitutional" not to be regulated? I think you mean ratings websites are, like almost all other speech, entitled to the fullest possible measure of constitutional protection.

This is not an adequate statement of the holding in Hustler v. Falwell. In the first place, the Court unanimously held that the plaintiff's complaint should be dismissed (see below). Second, it reached that conclusion by holding that all state torts fastening liability on words (including "intentional infliction of emotional distress" as well as defamation) must meet the liability standard of constitutional actual malice when invoked by public figures, which requires proof of defamatory factual falsehoods published with actual knowledge of their falsity or with reckless disregard for the likelihood of their falsity. Falwell therefore could not maintain an action, no matter how designated under state law, in a self-evidently parodic context. Had Hustler purported to print as a news item that Jerry Falwell in his youth had genital sexual intercourse with his mother in an outdoor toilet, there would not have been a different factual allegation, only a different context, bearing not on the court's interpretation about whether the truth of the fact was being asserted, but rather on the reader's interpretation. Falwell stands, in your context, for the principle that actual constitutional malice cannot be found in the context of parody, satire, or expression of opinion. Clearly described, it does not provide any support for the larger argument you are making.

Which "types of situations"? Is that an "artful" variation on the single word "cases"?

it appears the courts are looking to determine whether a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important.

I thought they were trying to discover whether there was any basis, however slight, not to dismiss the complaint on constitutional grounds. Factual allegations in complaints are (supposedly) either true or false, which creates a barrier to dismissal (where, at least most of the time, they should be assumed true) and to summary judgment. So these cases almost always arise not on findings vel non of liability, but on the question how much process to award the plaintiff before sending him away empty-handed, with a sharp stick up his rear end, as he deserves. Somewhere along the way you should in addition have mentioned Bose v. Consumers' Union, which pretty much ensures that even if the plaintiff gains something at trial he will still be sent away empty-handed later on, as he still deserves.

Website ratings would only be found liable if the information or language used on the website would lead a reasonable person to believe that the ratings were a statement of actual fact, rather than opinion. This leaves potential plaintiffs with no practical legal recourse, yet the persistence of cases being brought under similar claims may implicate a need to address the issue in some other manner.

Why? That people continue to think, when criticized publicly, that their feelings or business interests are more important than other peoples' freedom of speech does not constitute a reason why we should pay them the slightest attention or divert ourselves by a millimeter from the path of justice.

*Not illegal?* Have you really taken your ground on the proposition that just because free speech is "not illegal," that doesn't mean we shouldn't use government power to regulate it? Maybe that's law in India, where a large democracy tries to do without any meaningful constitutional protection for freedom of speech. It has nothing in any event to do with the United States of America, or even Missouri.

Or, we could just decide that free speech is what we believe in. Are you absolutely positive that the best way to deal with that point of view is to ignore it?

You can see me, but that won't make me agree with this analysis. I pointed out that the idea that commenting systems are "reputation markets" is stupidly wrong, not that they are in fact markets and would therefore work better if only rich people could participate in them.

Only if people don't know that Gartner is a whorehouse that always says what it is paid to say, right? In general, human beings understand that others' opinions are biased, arbitrary, crazy, and uninformed. So what?

A fact not in evidence. I might just as well say that Congress enacted section 230 in order to take bribes from intermediary businesses while pretending to address hypocritical outrage by some people about other peoples' looking at pornography on the net. If Congress had wanted primarily to avoid chilling Internet discussion, it need not have bothered with the CDA in the first place. As it was, section 230 allowed them to pass their plainly unconstitutional crap about "decency" and "the protection of American families" without incurring the opposition of collectives like Verizon and aristocrat pornographers like Rupert Murdoch, whose bribes they required in order to sustain their positions.

courts are providing immunity against tort suits stemming from unflattering ratings, so long as the defendant offers the poorly rated individual or firm a right of reply similar to eBays. Specifically, in Avvo, the Court placed much significance on the fact that individuals like Browne who believed that false information was disseminated about them had a right of reply -- an ability to explain why they believe they received inappropriate ratings from a website or a complaining consumer. This right of reply is already built into most consumer feedback systems, but to increase potential plaintiffs sense of vindication, the government could mandate that this be a part of every ratings website.

Overruling Miami Herald v. Tornillo? Or just, as here, ignoring its existence?

Is this the place to point out that the Supreme Court has been repeatedly clear for two generations now that "wide-open, robust and uninhibited public debate" is inconsistent with using state tort law to impose liablility on speech with respect to businesses and public figures absent a showing of "actual [constitutionally defined] malice"? Or do you think New York Times v. Sullivan is irrelevant?

You're completely misleading your reader here. This Castle Rock case you cite is simply a routine appellate affirmance of the dismissal of a defamation complaint. The Court disposes of the appeal on the ground that the plaintiff did not plead a provably false, defamatory statement, and therefore was not entitled to maintain suit. This rule has existed since the sixteenth century, and while the opinion is not particularly thoughtful or elegant, and therefore wouldn't be worth much time or exposure in a classroom, it is certainly not a basis for the insurrection against the First Amendment you're going to claim below it somehow justifies.

The FDIC could issue regulations

Why would the Federal Deposit Insurance Corporation, which ensures savings bank deposits and conducts reconciliations of bank failures, care about whining from hotels and restaurants criticized on the Web?

or Congress could pass legislation to require the same thing that Missouri does, disclosure of all relevant defamatory facts.

That's not what the Missouri case does, and it's not what the Missouri case says Missouri law says. The case says plaintiffs must plead defamation with specificity, and what it does is to send a nasty little business away empty-handed with a sharp stick up its rear end, as usual. It says nothing about anybody else's required disclosures. I cannot find any other evidence that Missouri has the legal rule you say it has.

As to whether "Congress could pass legislation," we'd need to ask about the federal constitutional questions you keep avoiding, not about the Missouri court's view of Missouri common law, even if that were what you say you think it is.

This would be particularly helpful to potential plaintiffs who would feel more accurately portrayed and have a better understanding of the origin of the rating.

No doubt. But if we have previously decided that such people aren't entitled to any help, as a matter of constitutional law, then why would a weak policy argument about peoples' feelings be relevant, let alone significant?

What seems significant to me about this argument is precisely that plaintiffs' feelings are in fact all you have to go on. Surely the weakness of that predicate is apparent?

It would also permit subscribers to make their own opinions based on those facts, instead of relying on the ratings and opinions of the site exclusively.

In general, I am allowed to say what I think, publicly, free of the oppressive regulation of government, regardless of whether I have a factual basis for my opinions, and whether, if I do, I choose to disclose them or keep them to myself. You presumably know, but don't explain to the reader, that this rule is absolute under almost all circumstances, and is protected by the courts as a necessary consequence of the principles of the First Amendment. The overriding weakness of this essay is its failure to identify and deal with the constitutional arguments that militate conclusively against its position. The misreading or misinterpretation of legal material cited is also important to deal with in revision.

What Remedies Remain for those Rebuffed by Reputation Ratings?

A. The 1st Amendment permits any statement in the form of an opinion; ratings websites are constitutional

B. While the ratings websites are not illegal, there may still be some options for government regulations to cabin content and foster standards

In determining a course of action, private organizations or the government would need to take care to preserve the articulated First Amendment rights while balancing the objective of redress. Private systems will likely have less utility because they are too easily manipulated by money and bias. Government regulation can step in, but needs to be carefully crafted to provide a supportive structure that doesn’t abridge the content.

1. Risk of payment/motives will not work in a private feedback system:

- The cardinal error of "feedback systems" as "reputation markets" is that no one in these so-called markets has to bet with real money; all transactions are conducted in an infinitely inflatable currency. If, on the other hand, people had to pay money to create these "opinions" or "feedbacks," only two classes of commentators would predominate: those who had a significant material incentive to boost the rated entity, or those who had a significant monetary or personal motive to harm it. So the votes cast in an actual "market" would be biased, while those cast in a phony market are simply meaningless. See Eben Moglen.

- An example to corroborate this premise can be found in ZL Techs, Inc. v. Gartner, Inc., 709 F.Supp.2d 789 (2010). ZL Techs claimed that Gartners placement of vendors was biased and that purchasing time with a Gartner analyst allowed vendors to obtain information that help it to improve its rating. This understanding caused ZL to take the position that, "When Gartner expresses a favorable opinion of a particular vendor that has paid the company substantial fees, Gartner is not performing an independent analysis but making a self-interested statement about a business partner." Id. The money invested into this reputational feedback system disturbed the ratings, and arguably, diminished the utility of the system as a whole.

2. Proper role/actions for government may be to construct regulations that foster transferability:

- Private market actors are already doing a fine job of making new ratings information available to the public. In these settings, the government’s role may be most properly confined to facilitating the adoption of uniform standards so that information can be aggregated easily from among a number of different websites, and reputations can be transported from one site to another. See generally Nolan Miller et al., Eliciting Informative Feedback: The Peer-Prediction Model, 51 Mgmt. Sci. 1359 (2005). This will increase the utility of the ratings systems because a true consensus will emerge, and the separate rating engines would not cooperate or collude.

3. Another promising option would be a government-mandated right of reply:

- Just as Congress enacted §230 of the Communications Decency Act, 47 U.S.C. §230 to avoid chilling internet discussion, courts are providing immunity against tort suits stemming from unflattering ratings, so long as the defendant offers the poorly rated individual or firm a right of reply similar to eBays. Specifically, in Avvo, the Court placed much significance on the fact that individuals like Browne who believed that false information was disseminated about them had a right of reply -- an ability to explain why they believe they received inappropriate ratings from a website or a complaining consumer. This right of reply is already built into most consumer feedback systems, but to increase potential plaintiffs sense of vindication, the government could mandate that this be a part of every ratings website. This rule permits a vendor to point out possible biases that formed the basis for an unfair rating or blatantly refute the rating and provide countering evidence to support their position.

4. Finally, the government could require that the websites list the particular discrepancies that led them to that rating (like MI currently requires as part of a defamation claim):

- Various privileges have arisen from the protections offered by the First Amendment including the absolute privilege accorded to statements of opinion, which even if made maliciously or insincerely, do not give rise to a libel cause of action. However, Missouri recognizes one exception to this general rule -- the privilege does not apply when the statement of opinion implies the existence of undisclosed defamatory facts. See Castle Rock Remodel, Inc. v. Better Business Bureau of Greater St. Louis, Inc., BL 282687 (2011) (citing Ribaudo v. Bauer, 982 S.W.2d 701, 704 (1998)). The FDIC could issue regulations or Congress could pass legislation to require the same thing that Missouri does, disclosure of all relevant defamatory facts. This would be particularly helpful to potential plaintiffs who would feel more accurately portrayed and have a better understanding of the origin of the rating. It would also permit subscribers to make their own opinions based on those facts, instead of relying on the ratings and opinions of the site exclusively.

It is sometimes tempting to use the imperfections in feedback systems as a basis for rejecting their use, but one cannot contrast the occasionally flawed information that an eBay-style reputation tracking mechanism can generate with a world of perfectly accurate information about individuals because completely transparent data does not exist.

I'm not sure I know what the sentence means, but if I understand it overall, you are saying that people too easily dismiss feedback systems because the errors they make appear obvious, but no system of reputation is perfect. If that is indeed what you mean, I don't know what "transparent data doesn't exist" means.

However, because most feedback providers are sincere and because various algorithms can help the owners or users of these sites weigh the feedback provided by reviewers who have proven their reliability, the accuracies in reflections are quite high.

This doesn't make sense to me. Whether people are sincere in the opinions they express in feedback systems doesn't tell me at all whether the information they are purporting to convey is accurate. That there are "various algorithms" applied to the feedback provided is not any kind of encouragement to believe in its accuracy, either. One would be inclined to ask, what algorithms, and why do they make the data more accurate?

Therefore, there exists an inherent whistle-blowing mechanism that will deter excessive investments in reputation – namely the fact that overreliance on particular proxies might contribute to their deterioration as a signal of quality.

Why is this rather obscure proposition a consequence of the prior propositions, which were themselves not too securely put together?

The reader has not yet been presented with any concrete information. The reader doesn't know what the thesis of the essay is overall. But he or she has discovered that the logic presented appears rather shaky and the work of getting the meaning out of the sentences provided is hard. Any such reader, not coerced to continue, will simply give up.

You have to provide us, first, a succinct statement of some idea that will make us want to continue reading. Second, a development of that idea from its essence to some of its consequences and the answering of some likely useful objections, that we can follow without unduly taxing our patience or our willingness to work things out for ourselves. And third, sufficient concreteness, or relation to the world of digital activity around us, that we can judge how you are interpreting the technology, in relation to whatever law and politics you are discussing.

But this ignores the significance of the First Amendment ruling, which is absolutely straightforward and completely fatal to the tenor of this argument. The holding is, of course, that the website is nothing more than a collection of opinion, protected under the First Amendment precisely because it is nothing but opinion. Judge Lasnik is able to see that the pretense of "reputation" presented by such a site is utter nonsense. Rumor when accumulated is not the same thing as reputation, and Judge Lasnik assumes, perhaps incorrectly in view of the remainder of your analysis, that everyone is able to tell the difference on sober second thought.

The cardinal error in these analyses of feedback "systems" as "reputation markets" is that no one in these so-called markets has to bet with real money. The whole point of the thing is that it's a pretend market in which all transactions are conducted in an infinitely inflatable currency. If, on the other hand, people had to pay money to create these "opinions" or "feedbacks," or whatever, only two classes of commentators would predominate: those who had a significant material incentive to boost the rated entity, or those who had a significant monetary or personal motive to harm it. So the votes cast in an actual "market" would be biased, while those cast in a phony market are simply meaningless.

Marketmakers like these things, because unreliable gossip makes people feel more comfortable in a market, regardless of whether any actual information is being conveyed by the incessant chatter: no one likes to eat in a silent restaurant, and muzak is played in retail outlets the world over. Feedback bullshit is the retailing muzak of on-line selling. "Business intelligence" systems like this stuff, because you can spy on the people who use the forums, thus better "knowing your customer" in an uncomfortably near-Biblical sense.

But, as the shaky logic of your initial exposition tended to show, it's difficult to make a convincing case for taking any of this seriously, ever. If the point of your essay is to make that argument, we need to take a hard look at how you mean to do it. If you wanted the heroic assumption of this dubious premise, you should have made the request at the outset, and showed us clearly what valuable intellectual path would be traveled, to what interesting and worthwhile destination, as a result of indulging the apparent counter-factual.

And in the end, is the real purpose of all this to tell us why government should not interfere in the free exchange of gossip and unsubstantiated opinion? Against the background of the First Amendment, this is—as the judge says quite vigorously in the very case you seem to rely upon—this is all but tautological.

I think we need to catch and clarify the underlying idea from which you are working.

False Feedback Systems and Credence in Online Reputation

Proxies are inherently imperfect, and those imperfections can encourage manipulation. A strong reputation merely correlates with desirable attributes; it is not a perfect proxy for those attributes. As a result, there is a danger that increased reliance on individuals’ reputations for sorting purposes will prompt individuals or firms to overinvest in actions that will improve their reputations, such as pandering for or attempting to buy approval. While this kind of activity may boost feedback ratings, it has the potential to degrade the very essence of a reputation-rating resource – quality and accuracy. For this reason, rating firms like Yelp and eBay have devoted substantial resources to trying to punish firms that employ these tactics eBay, Upcoming Changes to Feedback, ? " target="_top">http://pages.ebay.com/?services/forum/new.html]].

It is sometimes tempting to use the imperfections in feedback systems as a basis for rejecting their use, but one cannot contrast the occasionally flawed information that an eBay-style reputation tracking mechanism can generate with a world of perfectly accurate information about individuals because completely transparent data does not exist. However, because most feedback providers are sincere and because various algorithms can help the owners or users of these sites weigh the feedback provided by reviewers who have proven their reliability, the accuracies in reflections are quite high. Therefore, there exists an inherent whistle-blowing mechanism that will deter excessive investments in reputation – namely the fact that overreliance on particular proxies might contribute to their deterioration as a signal of quality.

Despite any perceived inadequacies in the above system, the government has declined to become involved in removing or regulating the falsities in these reputational feedback systems. There are market actors with substantial comparative advantages over the government, and they are already doing a fine job of making new information available to the public. In these settings, the government’s role may be most properly confined to facilitating the adoption of uniform standards so that information can be aggregated easily from among a number of different websites, and reputations can be transported from one site to another See generally Nolan Miller et al., Eliciting Informative Feedback: The Peer-Prediction Model, 51 Mgmt. Sci. 1359 (2005)? .

Recent case law has similarly discouraged governmental involvement in the generation of scores or ratings. For example, Browne v. Avvo, Inc. Browne v. Avvo, Inc., 525 F.Supp.2d 1249 (2007)? involved a website that rates lawyers, Avvo.com. The website aspired to do for attorneys what Yelp did for restaurants – provide consumers with information they could use to find a suitable lawyer and collect evaluations from fellow attorneys and clients. However, within ten days of its launch, Avvo was sued in a class action by attorneys alleging that Avvo had violated Washington State’s Consumer Protection Act Washington Consumer Protection Act, Rcw 19.86.020? by disseminating unfair and deceptive information about lawyers who were rated by the site.

More precisely, the complaint faulted Avvo for being subjective and unreliable; providing questionably low numerical ratings to highly regarded lawyers; using a non-transparent methodology for developing lawyer ratings; and providing incomplete information. Plaintiff Browne was an attorney who claimed to have lost two clients due to a poor Avvo.com rating that was tied to his admonition in a state bar disciplinary proceeding against him John Cook, Respected Lawyer Wants Rating Site Avvo Closed, Seattle Post Intelligencer, June 12, 2007? .

Avvo moved for dismissal, arguing that its’ services were protected by the First Amendment and that the plaintiffs had failed to state a claim under Washington’s Consumer Protection Act. The district court granted the motion for dismissal on both grounds. If Avvo were liable for its conduct, then under similar logic, Yelp could be liable for unfavorable restaurant reviews that resulted in a poor rating, AngiesList? could be liable to independent contractors that were poorly reviewed for construction projects and lost future bids for household repairs, and eBay may be liable to vendors that could not make sales due to poor feedback ratings.

Of course, removing the possibility of liability in cases where inaccurate feedback is reported on a ratings website creates the potential danger of diminishing the quality of the published feedback, similar to the risk of declining quality in newspaper reporting that might occur if defamation was eliminated. However, the decline in the quality of ratings and information would not be inevitable; it would depend on whether market forces were in place to provide adequate incentives to keep the information on reputation ratings sites generally accurate.

The court likely made the correct determination in Avvo because individuals like Browne who believe that false information was disseminated about them have a right of reply – an ability to explain why they believe they received inappropriate ratings from a website or a complaining consumer. This right of reply is already built into most consumer feedback systems. Just as Congress enacted §230 of the Communications Decency Act Communications Decency Act, 47 U.S.C. §230? to avoid chilling internet discussion, courts are providing immunity against tort suits stemming from unflattering ratings, so long as the defendant offers the poorly rated individual or firm a right of reply similar to eBay’s. This rule permits a vendor to point out possible biases that formed the basis for an unfair rating.

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