Free Speech

"Ambulance Chaser Is Too Good a Term for Him" Isn't Libelous (At Least in Yelp Review)

"Defendant's Yelp post about plaintiff is reasonably and best understood to be, simply, name-calling."

|The Volokh Conspiracy |

From Judge Terry Jane Ruderman's opinion Monday in Feinberg v. Lans (N.Y. trial ct.):

Plaintiff Gerry Feinberg is an attorney who represented a plaintiff in a medical malpractice action against Dr. David Lans; defendant Devora Lans is the spouse of the defendant in that case. The complaint in this defamation action was filed on February 12, 2020, based on defendant Devora Lans' publication of the following statement about plaintiff Gerry Feinberg on the Yelp website:  "If you can't find a lawyer to take your case, this is the lawyer for you. Ambulance chaser is too good a term for him." …

"In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff." Four factors should be considered when distinguishing fact from opinion:

"(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might 'signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.'"

Turning to the first two of the foregoing factors, the phrase "[a]mbulance chaser is too good a term for him" is an "imprecise, subjective characterization" that is not capable of being objectively verified as true or false.

The case on which plaintiff relies, Flamm v American Assn. of Univ. Women (2d Cir. 2000), is distinguishable. It involved a published directory of attorneys and other professionals, compiled by defendant organizations, in which the following note was included with the plaintiff's listing: "Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment, and promotion. Note: At least one plaintiff has described Flamm as an 'ambulance chaser' with interest only in 'slam dunk cases.'" …

[T]he Second Circuit explained that the statement's attributed description of Flamm as an "ambulance chaser" could reasonably be understood to imply that he engages in the unethical solicitation of clients, which is an accusation that is capable of being proven true or false. In contrast, the statement at issue here, "ambulance chaser is too good a term for him," far from a straightforward and provable assertion of a fact, is the essence of a non-provable opinion.

Furthermore, while the third and fourth Steinhilber factors militated in favor of treating the statement in Flamm as fact-based, the opposite is true in the present case. The Flamm Court observed that "the challenged language appears in a national directory nearly seventy pages in length, compiled and distributed by a reputable professional organization with a 100 year history of supporting education. The directory purports to list 'attorneys and other specialists' willing to consult with women involved in higher education who are seeking redress for sex-based discrimination. The directory provides names, addresses, phone numbers and, generally, a short statement of the person's area of interest or expertise. In such a fact-laden context, the reasonable reader would be 'less skeptical and more willing to conclude that [the directory] stated or implied facts.'"

Here, the context of the statement, namely, its publication on Yelp, supports the opposite conclusion. Negative comments anonymously posted on consumer review websites are typically treated as non-actionable expressions of opinion (see Torati v Hodak (N.Y. App. Div. 2017)). The Internet reviews at issue in Torati v Hodak were quoted as "referring to plaintiff as a 'bad apple,' 'incompetent and dishonest,' and a 'disastrous businessman,' from whom consumers should '[s]tay far away.'" In dismissing the defamation claims regarding those statements, the Court noted their "[l]oose, figurative or hyperbolic tone" and observed that "Internet reviews contain elements of both fact and opinion," but
when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs." Yelp, in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers. It is the virtual opposite of a "fact-laden context."

Moreover, statements that "amount[] to no more than name-calling or a general insult" are treated as non-defamatory because it is generally understood that such name-calling is "a type of epithet not to be taken literally. Defendant's Yelp post about plaintiff is reasonably and best understood to be, simply, name-calling….

NEXT: What Did Holmes Know About Language That We Don't?

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  1. Yelp, in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers. It is the virtual opposite of a “fact-laden context.”

    Notably, although the opinion relied upon used the term, “fact-laden context,” this opinion offers no support for the notion that, “fact-laden context,” is a requirement to establish defamation. Isn’t the requirement simpler than that? Isn’t the standard whether the allegedly defamatory material on its own is a statement of fact, or a statement of opinion?

    Yelp’s opinion-slanted business model cannot reasonably be construed as a filter which excludes all factual statements from publication. As everyone knows, nobody at Yelp is reading content prior to publication. To decide, as the decision seems to do, that Yelp’s format and business model immunizes by context any actual defamation which gets published seems equivalent to declaring that some forums are by their nature defamation-proof.

    That cannot be reasonable for unedited forums, which can hardly be said to have any inherent characteristics at all. Anything can be in there, and get published world-wide, including defamatory factual statements. Saying, “Hey, it’s Yelp,” should be inadmissible as a defense.

    1. He (assuming Gerry identifies as a man) seems to be using the Streisand Effect to promote his brand.

    2. “this opinion offers no support for the notion that, “fact-laden context,” is a requirement to establish defamation.”

      Notably, it’s not. And even more notably, nothing in this opinion comes close to suggesting that it is.

      “To decide, as the decision seems to do”

      No, it really doesn’t.

      1. Actually, the implication, left tacit but made clearly with context, that being on Yelp gets you off, does suggest this judge is using a standard that fact-laden context is required. What else can the judge mean when he says of Yelp, “It is the virtual opposite of a “fact-laden context?”

        1. Context, including presence on a forum of opinions, helps inform if something is an opinion. However, it’s perfectly clear that even something labeled an opinion can be a false statement of fact. See Milkovich v. Lorain Journal Co.

          So if someone posted on Yelp a statement that “I went to Stephen Lathrop’s shop and he had a sign up that said ‘no blacks allowed'”, and you didn’t have any such sign, I would think that would be actionable defamation.

          1. Context, including presence on a forum of opinions, helps inform if something is an opinion.

            I understand and agree with everything you said after the quote above. I suggest that quote cannot itself be factual, as applied to any internet forum which publishes content without editing it. The fact that anyone can say anything, and that nothing said will result in any review prior to publication, means that there isn’t any meaningful context to consider. All the publications in Yelp are unrelated to all the others, except insofar as they explicitly take note of each other. The appearance of context is spurious, just like the appearance of systematic relationships which crop up in series of actually random digits.

            1. Stephen, what you are missing is there are close cases.

              For instance, imagine an entertainment industry gossip bulletin board, where people share rumors and exaggerated stories they hear about celebrities. In such a context, a court might very well conclude that some tall tale about a famous person might not be defamatory, because nobody really takes the stories on that website to be factual.

              However, if the same claim were published on a forum frequented by legitimate journalists where one might expect to find truthful reporting, it could be actionable.

              The context, including the labeling of “opinions”, imparts some information to readers about whether factual claims are being made. It is not, however, dispositive. It’s just a factor.

              1. The context, including the labeling of “opinions”, imparts some information to readers about whether factual claims are being made.

                In any forum where anyone can publish anything without review or say-so by any editor, that is not true. It is false. It is spurious. It is wrong. It is misleading. But for all I know, it may be good legal reasoning.

                Since the internet enabled publishing at will by anyone, it seems like everyone, including almost all the lawyers and judges, have forgotten what libel was, or why people were legally entitled to defend themselves against it. So maybe what you say predicts usefully what some judge would say.

                If so, it will not make the judge right, or you right, as a matter of fact. Maybe it will make you legally right. But if you and the law cannot see that some preexisting context cannot (as a matter of reason) tell anyone anything about a specific allegation which not only post-dates the context, but which is also utterly uncontrolled by the context, not part of the context, and unaffected by the context, then I don’t think libel as a legal concept has long to go.

                Too bad, because I also don’t think speech freedom can do without the notion that some damaging utterances are not legally protected. Living without that as a rule will pretty quickly deliver irresistible political pressures for government censorship. That process is already begun.

                1. “In any forum where anyone can publish anything without review or say-so by any editor, that is not true. It is false. It is spurious. It is wrong.”

                  No, once again it is you that is wrong. And once again you are misunderstanding the opinion. But keep writing the long diatribes exposing your ignorance. Ilya Somin can always use new examples.

                  1. jph12 — Empty contradictions are not impressive. Not even after your repeat them.

                    Try to deal with the point I made. Show how, “context,” consisting of statements which are in fact pure happenstance, is relevant to judging whether another statement is a matter of fact or a matter of opinion.

                    What are you thinking? Is it, “We can’t call something libel if it’s just part of the swamp on the internet? Who believes any of that?” Is that what you are thinking? Is that the way you suppose defamation law ought to work? If so, step right up and say it, and I will explain why you are wrong. If that is not it, please explain why you think I am wrong.

                    1. “Try to deal with the point I made.”

                      You haven’t made a coherent point. You don’t understand the decision, or the law. It’s been repeatedly explained to you, yet you simply blather on assuming you are correct and it’s everyone who is wrong. I’m not interested in educating you, especially when you’ve demonstrated very little capacity for being educated.

                2. In any forum where anyone can publish anything without review or say-so by any editor, that is not true. It is false. It is spurious. It is wrong. It is misleading. But for all I know, it may be good legal reasoning.

                  I know you have an Orwellian dream of clamping down on unrestrained expression by others, but as usual you’re spouting nonsense. Almost all commercial sites (and most non-commercial ones as well) employ moderators who can (and do) review submitted content, with said content being subject to editing or even removal if it is found to be in violation of site rules (or even if they sites owners just decide they don’t want that content appearing on their site, for any reason).

                  Secondly, this is funny as hell:

                  it seems like everyone, including almost all the lawyers and judges, have forgotten what libel was, or why people were legally entitled to defend themselves against it. So maybe what you say predicts usefully what some judge would say.

                  If so, it will not make the judge right, or you right, as a matter of fact. Maybe it will make you legally right.

                  “Legally right” is the best kind of right when you’re talking about a matter of law.

                  Too bad, because I also don’t think speech freedom can do without the notion that some damaging utterances are not legally protected.

                  Gee, and here I thought that notion was pretty firmly entrenched in U.S. law…both in theory and in practice. I mean, aren’t we talking about a civil suit that arose based on that notion?

        2. Actually, as is so often the case, you are wrong. Once again, you don’t understand the case you are attempting to criticize or its context.

    3. The discussion you reference was not a rigid standard that prevents any claims against Yelp reviews, it is simply part of the test.

      Say a college professor says that I am a drug dealer in his lecture to class. Should that be treated the same for potential liability as if, say, a comedian said that I was a drug dealer as part of their set?

      The answer is clear.

      1. Right. And to be clear, it’s just part of the calculus. So if despite the fact it was a comedy act, the comedian made it very clear that she was making a serious, factual claim, defamation liability is still possible. The label is one of a number of factors that are considered.

    4. How in the hell could anyone with at least two active brain cells interpret something like…

      “Ambulance chaser is too good a term for him.”

      …as anything BUT an opinion? I’d love to hear you cite an objective standard by which the above could be determined to be either true or false.

  2. Why would ambulance chaser Gerry Feinberg file a lawsuit that forever describes him as ambulance chaser Gerry Feinberg ?

    A yelp review about ambulance chaser Gerry Feinberg that maybe 5 people saw is now a judicial opinion and a legal blog post. I guess all publicity is good publicity for ambulance chaser Gerry Feinberg.

    1. Why would a bunch of anti-social clingers and right-wing misfits reflexively side with the person who used an online soapbox to hurl insults at a lawyer (perhaps for the crime of being an effective advocate for a patient of the critic’s husband)?

      Other than the ‘disaffected malcontents need to stick together’ thing.

  3. “Thin-skinned” is also too good a term for him.

    1. Forgive me, Bob from Ohio, for I have sinned.

      Why would thin-skinned Gerry Feinberg file a lawsuit that forever describes him as thin-skinned Gerry Feinberg ?

      A yelp review about thin-skinned Gerry Feinberg that maybe 5 people saw is now a judicial opinion and a legal blog post. I guess all publicity is good publicity for thin-skinned Gerry Feinberg.

  4. In the Flamm case, why was the directory publisher guilty of defamation? They only said “one plaintiff has described Flamm as…”; if one plaintiff did describe Flamm as that, the statement is true. That plaintiff may be guilty of defamation if his description is false, but why is the directory guilty?

    1. If the directory publisher was not immunized under Section 230, the standard rule of libel is that publishers are jointly responsible with their contributors. That is such a good rule that it ought to be applied alike to the internet, but for now Section 230 stands in the way.

  5. I’m confused; Is “ambulance chaser” still considered derogatory by legal professionals? I’d gotten the impression over the last couple of decades that it was just considered a standard business practice.

    1. The scene opens with an ambulance (red lights on) driving down an apparently empty divided highway.

      A car (hidden behind the ambulance) pulls into the left lane and proceeds to pass the ambulance, pulling back into the travel lane in front of the ambulance.

      Announcer: “We Cheatem & Howe doesn’t just chase ambulances, they *pass* ambulances….”

  6. ” compiled and distributed by a reputable professional organization with a 100 year history of supporting education. “

    Now that’s libelous when used to describe the AAUW…

  7. How could calling a lawyer an ambulance chaser be libel?

    ALL lawyers are ambulance chasers, just varying in degree.

    1. If you look at the lawyers who handle class action lawsuits, ambulance chaser might even be seen as a step up.

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