In late February 2024, the U.S. Supreme Court heard two cases in which online giants such as Facebook, Reddit and TikTok are fighting to retain the freedom to delete user posts that they believe should not be made public.
The court’s ruling, expected in June, concerns the future of social media and user-generated content, including consumer reviews.
James R. Hood found the moment a bit surreal. Fifteen years ago, the founder of ConsumerAffairs was fighting in court for the freedom not to remove user-generated content — in his case, written by wronged consumers and powerful enemies trying to suppress it content.
Hood’s landmark Court of Appeal victory in Nemet Chevrolet v. ConsumerAffairs.com Inc. paves the way for years of Internet freedom that should not be taken for granted.
“Without the Nemet case law, there would be no user-generated content on the Internet and there would be no social networks as we know them,” said Zac Carman, current CEO of ConsumerAffairs.
Now angry that Florida and Texas governments want to reverse precedent and limit websites’ editorial control over user-generated content, Hood risks his livelihood and his consumer affairs to win.
“While I’m no longer involved with ConsumerAffairs,” said the veteran journalist, news executive and entrepreneur, “I’m glad every day that it and other consumer sites continue to work on behalf of consumers without fear of censorship or Other issues.” Interference. “
speak truth to power
ConsumerAffairs’ 2009 fight was to stop companies from suing to silence website bullying. While the law seemed to be on his side, in harsh reality Hood almost had to shut down his company amid the legal battle.
In the early days of the World Wide Web, Congress passed the Communications Decency Act of 1996, which contained 26 words in Section 230 that seemed to confirm that user comments were protected speech. Section 230 states that, in Hood’s words, Internet sites “can’t be held responsible for content posted by third parties any more than telephone companies can be held responsible for what people say on the phone.”
When Hood first allowed consumers to leave reviews—many of them negative—about products or services they received, the law was never subject to a legal challenge. These in-depth user accounts became ConsumerAffairs.com in 1998, becoming essential reading for the wary consumer.
The complexity of the problem, Hood found, was the corporate backlash against key user accounts and comments and his subsequent reporting.
ConsumerAffairs was one of the first product safety alerts. “Before the Internet,” Hood said, “you wouldn’t know that an F-150 truck was burned in Maine one day and burned in Oklahoma a week later. There was simply no way to integrate that information. Together. That’s what our website is doing. We accidentally invented something.”
“Businesses are shocked, angry and aggrieved” when Hood doesn’t take down posts they don’t like. “They hire lawyers to sue us and hackers to attack us.”
Years of litigation and tension came to a head when a New York car dealer sued ConsumerAffairs over comments the Department of Consumer Affairs claimed were defamatory.
“He was a small car dealer, but I asked around and found out he had some high-power legal help that also represented a national auto dealer association,” Hood said. Hood ultimately led consumers to The ministry survived six or seven lawsuits, but he’ll never forget this one. “I told the good local law firms in Virginia, ‘I think we’re in trouble. They’re angry, and it’s not going away.'”
“This case is essentially a ruse to try to shut us down – to drag things out and see if they can bankrupt us,” he said.
No Chevrolet vs. Consumer Affairs Network Inc.
Finally, after months of grueling testimony, a key ruling in his favor, and an appeal by Nemit Chevrolet, the case wound its way to the 4th Circuit Court of Appeals in Richmond, one step below the Supreme Court. The mainstream media didn’t pay much attention, but publishing and First Amendment circles did. So are Internet entrepreneurs in the midst of a social media gold rush.
“This case has caused a lot of controversy in the digital world,” Hood said. “If we lose, Section 230 could be invalidated and the site would be vulnerable to lawsuits from anyone who objects to anything.”
His own fingernails were also affected. He is the owner and CEO. “It takes a lot of money to get a case through the system that thoroughly,” he said. “That case nearly bankrupted us, the company, and me. That’s when my spouse and I said, ‘We have to seriously consider selling this company.'”
The arguments heard by the Fourth Circuit in 2009 will sound familiar to anyone who follows current cases before the Supreme Court. “Nemeth argued that we edited and categorized customer complaints so that our reviews became ‘content creation’ rather than a simple outlet for consumers to vent,” Hood said.
ConsumerAffairs, meanwhile, cited Section 230 as a defense, noting that the law states that Internet sites cannot be held liable for content posted by third parties. The 1996 law is about to face its first legal challenge.
The judge ruled in favor of ConsumerAffairs, saying the car dealer had not made any “identifiable argument” and argued that ConsumerAffairs’ approach of contacting commenters with questions amounted to content “creation.” (It remains our common practice to contact customers with questions about the company.)
“Assuming that Consumeraffairs.com did contact consumers with unknown questions, this bare allegation does not support Nemet’s claim that Consumeraffairs.com is an information content provider,” the judges wrote.
The legal victory helped cement Section 230’s status as “settled law,” Hood recalled. It also insulates ConsumerAffairs and other sites driven by user content from future nuisance lawsuits.
“When angry businesses pressure their lawyers to sue us, the lawyers will take a quick look and suggest that suing ConsumerAffairs is a losing proposition. The law is on our side,” Hood said.
past and present
Hood sold the company to current CEO Zac Carman in 2010, but remained editor-in-chief until his retirement in 2017 as the digital world rapidly changed. Social media is embroiled in controversy over which posts are allowed without fear of defamation lawsuits.
Businesses went from being indifferent to “consumer experience” to conducting customer service surveys after every transaction.
Which brings us to the cases currently before the Supreme Court, which Hood said have an Alice in Wonderland quality.
New state laws in Texas and Florida hope to reverse established precedent on the grounds that content moderation can amount to censorship. The new law allows governments or lawsuits to force websites to carry content they don’t want.
Are these laws constitutional? That’s exactly what the U.S. Supreme Court is considering.
Hood thought the Framers would be unhappy with the new law being viewed as government censorship, but the opposite was true. He said that while Americans have the right to free speech, they do not have the right to access websites owned by private companies.
“The framers left no doubt that publishers should be free to publish without government interference, allowing citizens to hear all sides and make their own decisions,” Hood said.