Today, the United States Supreme Court delivered a substantial victory for First Amendment rights in NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC. The decision reaffirms two core principles of free speech. First, the First Amendment protects platforms–like Yelp–that compile and curate others’ speech. Second, the government cannot force those platforms to accommodate messages or views that the platforms want to exclude based on the government’s “own conception of speech nirvana.”
These principles establish that the First Amendment fully protects companies’ editorial decisions about what to include and what to exclude on their platforms. The Florida law, Florida State Bill 7072, imposed a variety of obligations on social media companies, including prohibiting certain types of content moderation. Similarly, the Texas law, Texas House Bill 20, regulated how and when social media companies could moderate content and required them to give explanations whenever they did so.
As the Supreme Court reiterated today, states cannot interfere with a social media company’s decisions about whether and how to display third-party speech any more than they can interfere with a newspaper’s decisions about whether and how to publish third-party views. Indeed, over 50 years ago, the Supreme Court unanimously invalidated a Florida law that required newspapers to provide space to political candidates who had been attacked in print.
In December 2023, Yelp filed an amicus curiae (“friend of the court”) brief explaining how these laws could cause harm by limiting Yelp’s ability to protect business pages and consumers from unreliable reviews. Yelp takes a number of steps to safeguard the community and level the playing field for all businesses by surfacing the most reliable and useful content. However, there are times when Yelp pages can become flooded with comments that are unrelated to a users’ firsthand experience. One notable instance was the 2018 Supreme Court ruling in the Masterpiece Cakeshop case, where a Colorado bakery refused service to a same-sex couple. Individuals left an influx of reviews on Yelp that were motivated by politics rather than frosting, not reflecting actual firsthand consumer experiences with the bakery. Without our ability to moderate content and remove reviews that violate our content policies, consumers would have to wade through irrelevant reviews to find information based on authentic experiences with the business.
Strengthening reviewers’ First Amendment rights and anti-SLAPP protections
Unfortunately, NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC are just two examples of the many cases that continue to threaten consumers’ First Amendment rights. Consumer speech and information about local businesses are fully protected by the First Amendment. And because reviewers have a constitutional right to share their honest opinions about their experiences with local businesses, it is crucial to support laws that enable consumers to quickly and easily defeat meritless lawsuits that intend to silence or intimidate them for expressing their views – also known as Strategic Lawsuits Against Public Participation (SLAPPs). Yelp remains committed to its advocacy for broad interpretation of anti-SLAPP laws, which allow those targeted by SLAPPs to seek early dismissal of baseless claims against them and recover their attorneys’ fees, and is in support of other laws that protect the free speech rights of all consumers, even in cases that do not directly involve Yelp or its users.
In Mendoza v. Reyes, Yelp filed a “friend of the court” brief in the Supreme Court of Nevada, in support of the administrator of a public Facebook news page who was being sued for libel and other claims by a Las Vegas tour service business over other people’s comments about the business. A lower court in Nevada had denied the defendant’s anti-SLAPP motion, ruling that the defendant administrator had not satisfied an “[o]bligation to make sure that the comments posted on his public news Facebook page are legitimate.” On June 14, 2024, the Supreme Court of Nevada agreed with Yelp’s position and reversed, holding that the anti-SLAPP motion should have been granted and the case dismissed.
In another case that did not involve Yelp, GSB Gold Standard Corp. v. Google, a New York state court granted discovery to a German cryptocurrency company seeking to subpoena Google and GoDaddy to identify an anonymous blogger critical of the company. While Google chose not to participate in support of the blogger’s free speech rights, on appeal Yelp filed a brief in support of the blogger noting how the First Amendment’s protection of anonymous speech facilitates valuable and diverse speech online.
On May 30, 2024, the Appellate Division of the New York state court ruled in favor of the blogger and adopted a helpful standard for the identification of anonymous online speakers. The standard holds that a party seeking to identify an anonymous speaker for the purpose of suing her must provide notice of the proceeding, identify the actionable words, state a valid legal claim, and make out a prima facie case on the legal claim, after which the court must assess the weight of the evidence supporting the claim and balance the equities. This is known as the Dendrite test (named for the leading court case establishing it), and Yelp has consistently worked in cases to get state and federal courts to adopt it as precedent.
We are also seeing progress in the number of states that are putting anti-SLAPP protections in place. On May 24, 2024, Minnesota became the eighth state to enact the Uniform Public Expression Protection Act (UPEPA), which provides for the early dismissal of lawsuits based on a person’s exercise of the right to freedom of speech on a matter of public concern. Maine, Oregon, New Jersey, Utah, Hawaii, Kentucky, and Washington are among the dozens of states that already have the UPEPA or similar protections in place.
These laws and cases continue to show that businesses that try to sue their unhappy customers into silence rarely prevail and often end up wasting their own time and money, usually at the expense of the opportunities that critical reviews can sometimes present. Yelp stands firmly against those looking to silence or intimidate consumers and will continue to advocate for stronger anti-SLAPP protections, as well ensuring online platforms remain free to make content moderation decisions for the benefit of the communities they serve.
