Question
My reputation has been attacked by a few Yelpers, who never used my services, or met me. However, my concern is that right now about 75% of my positive reviews are “filtered” while all the negatives mostly stay at the top! Apparently, Yelp is not interested in real experience of those who really use my services. At the same time negative reviews posted for some businesses are filtered in large number.
For me the whole thing started when a Yelp employee called and suggested that advertising with them would let them to control my negative reviews. I said I didn’t have any before I realized what a big mistake I was making. Shortly, the first negative review was posted. A couple of months later, another call was made from Yelp, again, I refused to advertise, so another negative was posted.
Each time I complain to Yelp, they say that a few bad reviews adds to the credibility of the positive reviews on Yelp community, and cannot do anything about real experience. While a negative review show up and stay intact (as they put it) the positive review from my real clients disappear right after pictures of them are posted. Yelp’s excuse for that is that the computer is in charge of the filtering, in order to avoid fake reviews!
Yelp extorts business owner, by using negative reviews, and hides behind the first amendment. Yelp is like being in a bad neighborhood with corrupted authorities! You are threatened by those asking for free or cheap services and goods or else you face bad reviews, and Yelp wants you to pay them to have control over your listing!
Answer
It sounds like you are aware that you are not the first to have considered some kind of legal challenge against Yelp (see, e.g., http://online.wsj.com/article/SB10001424052970204505304577002170423750412.html). Although it might be possible to come up with legal theories based on causes of action like false advertising, misrepresentation, and even defamation, it might not be useful to invoke the First Amendment in this situation.
The reason for this is that, generally speaking, the First Amendment governs speech restrictions imposed by government actors rather than private parties. That is, the First Amendment might preclude a government agency from interfering with my handing out flyers in a public square, but it would likely not have much to say about whether a private company that offers a communications forum can refuse to let me disseminate my message there.
This is not to say that businesses can say and do whatever they want. But, generally speaking, it is not the First Amendment that is constraining them.
To the extent you are interested in retaining counsel to explore legal action, you might consider starting with the resources listed on the American Bar Association website at http://apps.americanbar.org/legalservices/findlegalhelp/lris.cfm?id=CA .
As you note that you are aware of other litigation involving Yelp, you might also consider doing some research into the attorneys who have represented plaintiffs in those cases (although the fact that an attorney represented a party in a particular case does not necessarily speak to the attorney’s skill or experience).
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
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