Avvo’s Lawyer Ratings Protected by the First Amendment, Judge Rules in False-Advertising Suit
BY Kerrie Spencer
In what may yet turn out to be a case with a controversial decision, U.S. District Judge Koeltl ruled that Avvo’s lawyer ratings are statements of opinion and are protected by the First Amendment and the New York Constitution. This case, however, may head to an appeal as the First Amendment only offers protection from government censorship and Avvo is not the government.
Per Wikipedia: “The First Amendment's constitutional right of free speech, is applicable to state and local governments under the incorporation doctrine and it only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government.”
The foundation of what was originally intended to be a class-action lawsuit, filed by New York attorney Kevin Davis, was the allegation that Avvo gave better ratings and promotional benefits to lawyers who paid for ads. Davis furthermore alleged Avvo’s practices violated false advertising provisions of the Lanham Act and New York law.
According to the Judge, Avvo’s ratings have constitutional protection because they are statements of opinion and incapable of being proven false. Koeltl says, “A reasonable consumer would view an Avvo rating as just that — the defendant’s evaluation.” While it is true that a rating is just a rating, even though it may be founded on a point system or other method of determining such a rating, it may be a stretch to suggest it is protected by the First Amendment, since there is no government censorship involved.
In fact, the decision indicates that Avvo’s ratings are just opinion that cannot be proven false, which begs the question if they are just opinions, then anyone is entitled to them – no First Amendment involved. And if the ratings cannot be proven false then the attorney suing Avvo and alleging only lawyers with paid ads get good ratings and promotional benefits, this could indeed be proven with a look at the company’s records.
A further point of possible contention may lie with the interpretation of the “pro” badge hovering by the attorney’s online photo with an “i” icon. When that icon is clicked, viewers are informed the attorney has verified their information as it appears on Avvo. Attorney Davis argues the term “pro” is misleading as it implies that the lawyers with the “i” icon are of a better quality. Avvo says it regards it as “mere puffery,” an argument Judge Koeltl agreed with.
With the term “pro” being regarded as “mere puffery” the Judge further stated those lawyers marked with that icon “. . . cannot be proven to be undeserving of that status, because in context the term has no definite meaning or defining factors.” If it has no meaning or defining factors it may well be regarded as misleading or perhaps mostly irrelevant but for its ostensible image-enhancing wording.
Attorney Davis also alleged Avvo spotlighted positive reviews (by paying attorneys) while blocking negative reviews. Judge Koeltl indicated that that would not be considered false advertising as Avvo does have the right to withhold reviews that do not meet its guidelines. Additionally, just because Avvo blocks negative reviews does not mean it is false advertising. It would be adhering to company policy.
In summary, Koeltl indicated attorney Davis had not demonstrated that he suffered any damages from the alleged false advertising and did not provide any further facts that Avvo visitors relied on the allegedly misleading ratings, reviews, or “pro” badges.
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