As our friends at the Harvard Law School Cyberlaw Clinic have reported, on Wednesday, the U.S. Court of Appeals for the Sixth Circuit issued a decision that placing a particular hotel at the top of an online list of the "Dirtiest Hotels in America" was protected under the First Amendment and Article I, Section 19 of the of Tennessee Constitution as a statement of opinion. The Sixth Circuit's decision is a triumph for consumer ratings websites and their ability to build upon the data submitted by their users. However, the Court's articulation of the doctrine of opinion arguably underestimates the potential value of that same information.
The case, Seaton v. TripAdvisor LLC, arose after online travel website TripAdvisor published its "2011 Dirtiest Hotels" list based upon hotel cleanliness ratings provided by the site's users. #1 on the list was the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, owned by plaintiff Kenneth Seaton. Seaton sued, claiming that TripAdvisor's rankings were false because they did not accurately reflect the underlying user data. TripAdvisor in turn argued that the list constituted a statement of opinion that could not be proven true or false, because the rankings on the list and the concept of the "dirtiest" hotel were inherently subjective. A federal district court in Tennessee dismissed Seaton's claims, and Seaton appealed.
At the appellate stage, we at the Digital Media Law Project, with the assistance of the Cyberlaw Clinic, filed an amicus brief in the case in support of TripAdvisor because of the potential impact of Seaton's argument on journalistic and academic research. Effectively, Seaton was challenging the methodology by which TripAdvisor reached its conclusions based on data collected from its users. And while TripAdvisor's top-ten list was a more fanciful form of research than that undertaken in scholarly circles (well, mostly), TripAdvisor's analysis of crowdsourced data to reach systemic conclusions echoes important techniques for academic research and data journalism. Allowing debates over methodology to devolve into defamation claims could substantially chill the advancement of research on important but sensitive issues.
In fact, the law provides substantial protection for the publication of conclusions based upon gathered data, under the doctrine of opinion. "Expressions of opinion based on disclosed information [are protected] because we trust that the recipient of such opinions will reject ideas which he or she finds unwarranted by the disclosed information." Lyons v. Globe Newspaper Co., 612 N.E.2d 1158, 1164 (Mass. 1993). In other words, where a researcher supplies the data on which his or her conclusions are based (as TripAdvisor did in this instance, because all of the user reviews were available), the audience is expected to exercise its critical faculties and reject conclusions that are unsupported. Debates over methodology form part of the exchange in the marketplace of ideas, not an issue to be resolved by the courts. As the U.S. Supreme Court has held, "This is the ordinary course in a free society. The response to the unreasoned is the rational[.] . . . [S]uppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse." United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012).
The Sixth Circuit affirmed the dismissal of Seaton's claims under the doctrine of opinion, finding that TripAdvisor's judgments were inherently subjective and providing strong protection the type of activity in which TripAdvisor engaged. Unfortunately, the court did so in a way that implicitly devalued the speech at issue. Rather than analyze the "2011 Dirtiest Hotels" list as an opinion based on disclosed data, the court found that the list was "rhetorical hyperbole":
In [Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)], the Supreme Court reaffirmed its prior decisions that protect statements employing "loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining" an assertion of fact. ...
Seaton failed to state a plausible claim for defamation because TripAdvisor's "2011 Dirtiest Hotels" list cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two reasons. First, TripAdvisor's use of "dirtiest" amounts to rhetorical hyperbole. Second, the general tenor of the "2011 Dirtiest Hotels" list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America.
Slip. op. at 6-7. The court went on to compare TripAdvisor's list to other online polls and lists such as Reader's Digest's poll of the "100 Most Trusted People in America" and a list of the "Top Ten Dumb Asses," suggesting by its comparison that the format of a top-ten list is not only subjective but inherently frivolous. Id. at 10-11.
But even if one were to consider the "2011 Dirtiest Hotels" list as a work intended more to entertain than to illuminate, it is difficult to believe that TripAdvisor did not intend its audience to understand that the Grand Resort was actually "the dirtiest hotel in America" according to the criteria used in generating the list. By declaring that TripAdvisor was not "serious," the Sixth Circuit seems to have confused (1) statements not intended to be taken literally and (2) statements intended to be taken literally that nevertheless reflect a subjective judgment. Both fall within the doctrine of opinion as statements that cannot be proven true or false, but the Sixth Circuit's decision hooks the protection in this case to trivializing TripAdvisor's message. The court could have reached the same conclusion simply by holding that whether a hotel is "dirty" is ultimately a judgment call based on the standards of the speaker, without suggesting that the opinion must therefore be without meaning or merit.
Similar issues were raised in June, when we saw the Second Circuit apply the doctrine of opinion to conclusions in scientific articles in ONY, Inc. v. Cornerstone Therapeutics, Inc.. Kristin Bergman has an excellent analysis of that decision here, highlighting the Second Circuit's holding that the First Amendment protects "conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement." (Emphasis added.) Thus, the Second Circuit found a scientific conclusion to be opinion because the particular question at issue had not yet been deemed settled by the scientific community. But again, why should the existence of ongoing debate matter in finding that scientific conclusions are protected as opinion?
The doctrine of opinion can be confusing at the best of times. The very use of the word "opinion" as a catch-all term for that category of speech that cannot be proven true or false carries unfortunate connotations of whim and personal preference, which do not readily fit the broader range of conclusions, hypotheses, speculation, invective, humor, and other statements which fall within the category. While the Sixth Circuit's decision this week provides strong support for the publication of subjective conclusions based upon data from the crowd, the court's apparent need to tie its analysis to a lack of "seriousness" weakens its value somewhat for opinions on matters of public concern.
(A parting note, on a footnote in the Sixth Circuit's decision: Although the court did not directly discuss opinions based on disclosed facts, it did note that TripAdvisor could not be held responsible for the reviews posted by its users under Section 230 of the Communications Decency Act. Slip. op. at 9 n.8. This is an important holding for any researcher using crowdsourced data gathered online, because it would likely immunize the researcher from liability for factual errors contained in user-generated submissions.)
Jeff Hermes is the Director of the Digital Media Law Project. He wishes to thank Cyberlaw Clinic students Jillian Stonecipher, Andrew Crocker, and Emma Raviv, DMLP Assistant Director Andy Sellars, and Cyberlaw Clinic Managing Director Christopher Bavitz for their work on the DMLP's amicus brief in this case.