Debating whether the First Amendment protects online reviews

Does the First Amendment protect online reviews? The issue is salient as Congress considers passing a law outlawing form contracts that make you promise not to review the goods or services you purchase. And the answer is: the Constitution matters more than you might think. Among other things, it guarantees that private websites can curate content, probably including reviews they host.

The proposed law, known as the Consumer Review Freedom Act, passed the Senate unanimously in January and has been awaiting action in the House since then. Its purpose is to outlaw contractual agreements between a business and customer prohibiting the customer from writing a review.

Consumer activists call such contractual provisions "gag laws." The strongest argument for banning the agreements is that prohibiting reviews can distort the market. They block the free flow information that would help other customers decide whether to purchase a business's goods and services. That increases the asymmetry of information between a business and its potential customers.

Intriguingly, the best argument against the federal law also depends on the virtues of market freedom. We tend to think that contract law serves the market best by letting people agree to whatever terms they want when they buy something, provided the agreement doesn't harm third parties.

In a partial attempt to address such concerns, the proposed law exempts contracts between employers and employees or independent contractors. It also says that online hosts can continue to put provisions in their contracts with users, allowing them to take down reviews deemed false or misleading.

Whether you think the law is a good idea or not, it's probably constitutional as applied in most cases. By prohibiting restrictions on speech, it tends to encourage more speech rather than discouraging it.

There is one potential First Amendment problem, however. The Constitution also protects the right not to speak. That would mean that a privately owned website has a right to bar content of its choosing. Thus, if Amazon.com prohibited users from posting negative reviews of its products on its own site, the company would likely be within its First Amendment rights to do so.

The Senate bill isn't well-drafted in this respect. If Amazon wrote a policy like this into a form contract, the bill as written would prohibit it. That is at odds with the First Amendment.

But Congress could outlaw contracts between Amazon and its consumers that said consumers couldn't post negative reviews of Amazon products elsewhere. That wouldn't limit Amazon's freedom of speech, or that of its customers'. It would only limit their freedom of contract, which the Constitution doesn't protect.

The bill could perhaps be defended nevertheless on the theory that it covers commercial transactions only. But it's wrong to think that reviews are necessarily commercial. Book reviews, for example, are an archetypal form of self-expressive speech that should get full First Amendment protection, no matter what. The same would be true by extension of reviews of films and video games.

Once you go down that path of expansion, it seems to me that all consumer reviews should be protected as forms of self-expression, except perhaps those that are sponsored and paid for by a business to promote its products and don't contribute to broader public discourse. Those arguably might count as advertising, which is the classic instance of commercial speech that's entitled to less protection than self-expression.

Notice that the First Amendment should also protect a private website's decision to establish its own standards for who is allowed to post a review. Amazon, for example, has a policy that prohibits an extended circle of friends and family from reviewing an author's book. Some authors object and have signed a petition asking the company to change the policy. But they can't go to court. What appears on Amazon's website is within Amazon's free-speech rights.

That's an important point to keep in mind while reading online reviews. Even if Congress bans so-called gag clauses, there will be no guarantee that online reviews represent a cross-section of consumers' opinions. If it chooses to, a website that hosts reviews could make a deal with the business being reviewed, agreeing to curate which reviews appear on its site or even tweak ratings.

The consumer's only protection against that kind of review manipulation would be disclosure by the website.

And although you might think we would stop trusting a site that curated reviews, don't be so sure: we know that Facebook curates its newsfeed to a degree, but that doesn't necessarily make us ignore it.

The bottom line for free speech in the internet era is: be suspicious. Websites may seem like open public forums. They may even be designed to make them seem that way. But so long as they are privately held, they aren't really free speech zones - even if Congress chooses to regulate them in some ways.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."