Free speech. The right to express oneself under American jurisprudence is one of the most misunderstood principles in constitutional law. The First Amendment guarantees the right of American citizens to engage in free expression—but free expression does not mean free of consequences. It means, like any constitutional provision, that the government cannot punish a citizen for what she says. But, and it’s a big but, it does not mean a person who says something unflattering will be shielded from retribution. This is especially so when the remark has an effect on the reputation of a private citizen.
One of the outcrops of the technical age is the growth of private comment. Facebook, Twitter, Instagram, Yelp and other similar websites all can have the consequence of democratizing comment. Sometimes people are lulled by the nature of communicating online—all you need is a computer or like device and a connection. The feeling is it is all so remote and people will often say and do things online that they would never say or do to someone face to face. Yet, the words can have the same ominous effect. It can have a nefarious result, even if unintended, of defamation. Defamation most certainly can have legal consequences. Especially if the subject of the comment is not a government entity or a “public person.”
One principle that needs to be understood to appreciate and understand the reach of the First Amendment right of free speech is to understand that the creation of the US Constitution was meant as a check against government action. The Constitution is a compact between the government of the United States and its citizens. It was never meant to police the relationships between private individuals. That is why, on the one hand, no matter how obnoxious an individual is against a government official, he is not going to get arrested. However, on the other hand, if the same individual does something that is detrimental to her boss, co-worker, customer or neighbor—that individual can face sanction. That could include a former Super Bowl quarterback kneeling in protest of the national anthem where it can hamper a professional league’s goodwill towards a significant portion of its customer base, or a worker of a company that earns its income based on government contracts publicly flipping off the president as she passes him in a motorcade on bicycle.
Even in less extreme or publicly recalled circumstances, there can be consequences. Often employees are instructed to refrain from political comment or controversial statements that can bring ill repute on their employers. In its most basic form, free speech means that a speaker will not go to jail for her statements—but that does not mean that one should not think before she speaks—or that her speech might not be costly. Free speech is only free in terms of incarceration, but not necessarily monetary penalties.
The most recent example of a real price being paid for expression might be the ongoing defamation matter involving a woman named Michelle Levine. She is having a very tough time after an unfortunate experience with a doctor that she visited for her first and only appointment. The occasion upset her so much that she felt it necessary to warn other potential patients to avoid the doctor. A warning she articulated on Yelp—a website that incorporates reviews from customers about their experience with various companies and service providers. It can be valuable. But the unfortunate side effect is that people can be vicious—and reviews can harm the subject—especially if the review meets the standards of defamation. Levine’s review was scathing.
Levine did not have a good experience with her gynecologist. She was frustrated. Levine said she went to Dr. Joon Song of NY Robotic Gynecology for a checkup in 2017. It was her first and last time at the practice, but Levine said her experience was a nightmare. In Levine’s review she wrote Dr. Song never even gave her a manual pelvic exam, instead simply asking her about menstrual cramps and then performing an ultrasound. However, according to Levine, Dr. Song billed for an exam and demanded an additional $500 from her. Levine’s defense is that her assessment was an “honest Yelp review of her experience.” She wrote, “Very poor and crooked business practice. I suspect that this doctor gives unnecessary procedure [sic] to a lot of people and then charges the insurance sky high prices and no one knows the difference.” She gave the practice one star.
Two weeks later she was sued for defamation. While honesty is a full defense to a defamation action, and an opinion cannot be successfully prosecuted in a defamation action, Dr. Song focused on Levine’s description of her medical practice as “crooked.” By calling Dr. Song crooked, the doctor claimed she had been defamed by being labeled dishonest or criminal. Being a criminal is not a matter of opinion, but a statement of fact, and in this case a defamatory fact according to the doctor. The doctor established evidence that Levine’s negative review had a detrimental effect on her practice and caused her to lose customers. While Levine filed a motion to dismiss, New York Supreme Court Judge Paul Goetz denied the motion and allowed the case to proceed. The judge also would not order the retraction of the review as Dr. Song wanted. The medical practice noted that Levine’s review was the only one-star ranking. However, Judge Goetz did issue a gag order in which he ordered both sides not to talk about the case.
The truth is that if Levine used more elastic language than “crooked” she probably could have defeated a defamation motion. But calling someone a criminal is not an opinion—it is assertion of fact. Either provable or untrue. Based upon the assertion, Levine is being called to account for her assessment.
But now, it’s becoming worse and worse for Levine. This past week she was cited by the judge for disobeying a judicial gag order to remain quiet about the case pending litigation. While Levine did not speak directly about the case, she did start a GoFundMe site where she sought to raise funds for her legal defense. Levine raised $2,555 online but now the judge has ordered her to forfeit those funds and turn it over to Dr. Joon’s lawyers as sanction for the violation of the order. Levine says she is in the hole $20,000 in legal fees overall not including the raised funds. She did get one break, however; the judge opted not to imprison her for contempt of court, as was an option.
Legal fees. Forfeiture orders. Contempt orders. Not to mention the stress that goes along with them—all evidence that free speech is still only free in limited respects. Everything said and done can have consequences. You will not go to jail for your speech or expression but nothing is exactly and completely free. Not even your words.
The bottom line: When writing a review you need to be really careful about what you say—and how you say it. While we may have the right to express ourselves without fear of criminal prosecution, it does not make it always wise to do so—and free speech can sometimes come with great cost.
By Stephen Loeb
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected].
