A Skokie lawyer can’t pursue libel allegations based on negative online reviews, a federal appeals panel has ruled, because the negative reviews on sites like Yelp, Facebook and Google were merely constitutionally protected statements of opinion.
Attorney David Freydin sued several people who left negative reviews about his legal practice on various online sites. According to court documents, the posts were a response to Freydin’s 2017 Facebook post and comment regarding Ukranian cleaning ladies. U.S. District Judge Harry Leinenweber dismissed Freydin’s complaint.
The U.S. Seventh Circuit Court of Appeals issued an opinion on Fredyin’s appeal Jan. 28. Judge Michael Kanne wrote the opinion; Judges David Hamilton and Amy St. Eve concurred.
According to the panel, Freydin’s original lawsuit alleged libel, false light, tortious interference with contractual and prospective business relationships and civil conspiracy. Although Leinenweber agreed the comments were defamatory, he also determined they were opinions that didn’t violate the First Amendment. The false light allegation lacked a specific damages claim, and the tortious interference claims didn’t identify any loss of business. The civil conspiracy claims weren’t supported by an independent tort.
On appeal, Freydin challenged both Leinenweber’s dismissal of the libel and conspiracy claims as well as his subsequent denial of a motion to amend the complaint.
“Whether a statement is an opinion or assertion of fact is a question of law,” Kanne wrote. “Freydin and his law firm point to ‘terrible experience,’ ‘awful customer service’ and ‘don’t waste your money’ as examples of implied statements of fact contained in the reviews. We do not read them that way.”
Although the words and phrases are easily understood, the panel continued, larger context doesn’t clearly establish the posts as factual assertions. Further, none of the statements could be objectively proven or disproven.
“How could a third-party observer gauge whether the commentator received awful customer service, for instance, by just reading a one-star review that says ‘Terrible experience. Awful customer service’?” Kanne wrote. “What objective indicator defines whether a given customer service experience was good or bad? Or whether a service or good was worth the money?”
Defendants posted the challenged reviews in unfiltered threads, the panel noted, adding it trusted that people who read online reviews — positive or negative — do so with skepticism.
“These short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin’s insults to Ukrainians generally,” Kanne wrote.
Freydin further argued the reviews were actionable because the defendants weren’t actually his clients. But the panel said the only relevant legal question is whether someone reading the reviews could discern between fact and opinion. It suggested the same distinction would apply if challenged comments came from an opposing lawyer, which also would involve the absence of a direct contractual relationship.
The comments of defendant Victoria Chamara, Kanne wrote, “are closer calls but are ultimately nonactionable opinion statements when analyzed in the correct context.” For example, Chamara wrote Freydin “has no right to practice law,” a provably false statement, but the full sentence was “David Freydin is an embarrassment and a disgrace to the US judicial system, he has no right to practice law.” In that context, the word “right” applies not to Freydin’s legal status as an attorney, but whether it is morally right that be be allowed to practice.
The panel also rejected the argument a one-star review itself constitutes defamation given such a post doesn’t convey objective facts, even if it might harm a business.
“The power of a review does not change the fact, however, that there is no measuring tool to gauge the reliability of a one-star rating or a five-star rating,” Kanne wrote.
The panel further affirmed dismissal of Freydin’s civil conspiracy allegations, explaining he failed to state an independent cause of action underlying any alleged conspiracy. The judges also said Judge Leinenweber made no error in denying the right to amend the complaint. Kanne wrote Freydin never showed how an amendment would cure the complaint, including in an opening appeal brief. Waiting until a reply brief on appeal is “too late in the process,” the judge wrote.
Freydin was represented in the matter by his colleague, attorney Randall Edgar, of the Freydin Law Firm, of Skokie.
The defendants were represented by attorney Daliah Saper, of the Saper Law Office, of Chicago.