M4M Message Forums and Daddy's Reviews de-Linked

[LoveNDino]

You callin mah daddy a lesbian???

I doubt it - he'll never be good enough...

[+ Awwshuck]

I doubt it - he'll never be good enough...

 

:confused:

[+ stevenkesslar]

But I don’t see anything here that would make RM any less liable than it otherwise might be.

 

I agree. I've now argued this ad nauseum. I think the thing to avoid boils down to one word: advertising. That's actually a written DOJ standard, and it goes back to the "smell test." Backpage could make any argument they wanted, but at the end of the day they were clearly advertising something. And that meant they were making a lot of money that was real money in real bank accounts, which has now been seized. Just like Rentboy's money was. What FOSTA mostly cleans up is the argument that they are not responsible for somebody else's advertisements. The common sense argument everybody behind FOSTA kept making is this: if you make millions off it, you're responsible.

 

I'm not arguing that the language used on the Senate floor by Blumenthal or Schumer counts for anything - although Schumer himself argued it did, and he is Senate Minority Leader. Just out of curiosity, I Googled what Wikipedia had to say about "legislative intent." Short answer: it's anybody's guess:

 

https://en.wikipedia.org/wiki/Legislative_intent

 

I think the concept of "harm reduction" makes sense as a guideline for what is safe to say on websites, and what isn't. Nothing suggests US Senators wanted to increase HIV transmission or physical harm to prostitutes, or those who hire them, or to anyone like a masseur who could be described as doing something similar to what prostitutes do, at least from the perspective of nervous websites who are now worried about anything that sounds even remotely suspicious.

 

To me the real prize we should have our eyes on is maybe three years or so down the road, when by law the GAO reports back to Congress. To go to the extreme, if prostitutes have their throats slashed in back alleys, and some psycho Gay prostitute like the one we just saw portrayed in Versace takes out some rich closeted man like Lee Miglin he met in a bar, that at least indirectly speaks to whether FOSTA made life safer, or more dangerous. Meanwhile, I think the best strategy is to hunker down and survive.

 

The weird thing about it is that the best way for FOSTA to either be amended or (less likely) rescinded is for all the bad things people predicted to actually come true. I don't wish that on anyone, least of all us. So to some degree we're just going to have to wait and see what actually happens.

[+ stevenkesslar]

The review is like a published review of a specific performance of a play, which has been read by an editor, while the forum posts are like chatter in a bar among persons who claim to know something about the play.

 

This is part 2 of a rant regarding advertising, reviews, and freedom of speech. Mostly I am just throwing shit at the wall to see what sticks, and elicit discussion. I'm not a lawyer. And even if I was I'm not sure that any lawyer has a clue what might happen. A lot of this is just brand new territory.

 

Charlie's post made me think about this: 1) If you see a paid full page advertisement for a hit play in the New York Times, is that advertising? The answer is almost certainly YES. But: 2) If you read a fabulous review of a play in the New York Times, is that advertising? After all, it could sell more tickets than the paid ad. And 3) If you go to Facebook or Metacritic and read lots of comments about the play from website users, is that advertising? My guess is the answer to 2 and 3 are pretty clearly NO - it's opinion and freedom of speech.

 

So I went a few directions on this and spent some time Googling to see what came up. Again, just to make it super clear, I'm just throwing shit at the wall to see if anything sticks.

 

https://www.yelp-support.com/article/Do-Yelpers-ever-get-sued-for-posting-negative-reviews?l=en_US

 

https://www.digitaltrends.com/web/how-to-yelp-review-lawsuit/

 

https://newmedialaw.proskauer.com/2014/09/11/website-marketing-statements-the-achillesheel-to-cda-protection/

 

The sites I write reviews on tend to be Yelp (for repair or contractor services) or Tripadvisor (for restaurants). Not surprisingly, Yelp has a slightly different take on whether you can get in trouble for writing a review than other websites writing about Yelp do. Yelp comes right out of the gate saying reviews are protected freedom of speech. They then add: Few of these lawsuits against Yelp reviewers have ever met with any success. They actually can backfire in that the media tends to focus its attention on the negative comments that the business hoped to hide from public view by suing the reviewer.

 

The second website I hyperlinked starts out by saying, Yep, people can and have gotten sued for reviews on Yelp. What both websites stress is that opinion is opinion, and you have a right to your opinion. The standard for getting in trouble when it comes to reviews is defamation - making false statements. What I found most interesting is this: 30 states have anti-SLAPP laws (Strategic Lawsuits Against Public Participation) that specifically protect people like Yelp reviewers from baseless lawsuits. Nevada and California, for example, both have excellent anti-SLAPP laws.

 

https://anti-slapp.org/your-states-free-speech-protection/

 

The third article reinforces the idea that suits against review websites have mostly struck out when companies try to hold website operators responsible for third party reviews. The few exceptions to this rule seem to go back to the idea that advertising actually does means advertising. A suit against a moving company review website was allowed to go forward. In that case, the website operator was itself a moving company. They were alleged to have removed positive reviews of a competitor, and negative reviews of their own company, for the purpose of increasing market share. In effect, in my words, they subverted the public's right to know in order to make money. The review site was, in effect, an advertising website for the moving company itself.

 

I realize what FOSTA is about is not going after people who might write reviews on websites. It's about going after the websites themselves. But in terms of thinking what DOJ and states might do, it does seem relevant that 30 states have laws designed to protect reviewers, and other speech in public forums. Now I'm really connecting dots, but what does that mean for Gay men like us who have a public interest in harm reduction? Again, this goes to legislative intent, not law, but one of FOSTA's co-sponors said on the record that FOSTA was in no way meant to criminalize "harm reduction communiction" even among what he called "commercial sex workers." So if somebody writes a review about an escort that is a rip off in a public forum, is that "harm reduction communication." In a state like Nevada can you argue that Gay men have a public interest in protecting themselves through this kind of online communication? Would DOJ or the State of Nevada want to really test where the courts come down?

 

The Rentboy take down suggests that DOJ or DHS or states can do whatever they damn well please, and it's better to be safe than sorry. But there's a huge distance between going after a website that makes millions selling children for sex, and going after a website that makes no money by posting reviews written by a minority community, Gay men, interested in promoting better escort or masseur services that are consensual. Would DOJ really go after a Yelp for reviewing escorts? I'm not sure. Particularly because Yelp doesn't make money off reviews - it posts reviews to promote a higher quality of service, which can be viewed as a public good and as freedom of speech.

 

http://web.utk.edu/~rhovland/firstamendcases.html

 

The other question I was interested in was what happens if you come at it from the other way - and look at legal cases involving explicit, paid advertising? Where do the lines get drawn by the Supreme Court in terms of what counts as "advertising?" Is there any case in which reviews - either by an authoritative source, or just some consumer - was considered advertising?

 

That list above is the closest I could find to a summary of cases where the Supreme Court, over the course of several decades, made rulings on how advertising intersected with First Amendment freedom of speech. If you scan the list, it should be no surprise that many of these cases involved attacks on the advertising of perceived vices - such as tobacco, alcohol, and gambling. The definition at the bottom makes it clear that "the Hudson Test" does not protect commercial speech relating to unlawful activities. We didn't need FOSTA to know that the advertising of prostitution is illegal. DOJ prosecuted Rentboy based on the idea that they made millions off advertising prostitution services, regardless of what Rentboy called the services they advertised.

 

So what's interesting to me about this list is there's no case in in which advertising meant anything other than the plain meaning of "advertising" - meaning outdoor billboards or broadcast ads, things where somebody is paying money to advertise a specific product or service. There's no case in which something like a newspaper review or news article or public comment was construed to be "advertising."

 

When it involved clear advertising, the Supreme Court did say, for example, that if gambling is illegal, a federal ban on the advertising of gambling (in this case state lotteries) is perfectly legal. The Supreme Court seemed to err on the side of protecting the public's need for information. They also erred on the side of throwing out overly broad interpretations of laws. I think there is a very common sense argument that the purpose of reviews is not advertising, but allowing consumers to protect themselves and each other from things like financial rip-offs and harm in a market economy. Would DOJ want to push the limits on that one?

 

QTR already made this point, but it also fits in that websites involving fiction about prostitutes probably would be hard to label as "advertising." Websites that discuss the political merits of decriminalizing prostitution, even moreso, I'd guess. That's pretty clearly freedom of speech, not advertising.

 

I'll say it one last time, in closing. I'm having my usual verbal diarrhea. In this case I am throwing it at the wall to see what sticks. If there's any lawyers out there, please weigh in. I think at this point it's anybody's guess.

Edited April 22, 2018 by stevenkesslar

[+ stevenkesslar]

The Growing Trend of Fake Reviews and How to Stop Them

 

https://www.law.com/thelegalintelligencer/2018/04/01/the-growing-trend-of-fake-reviews-and-how-to-stop-them/

 

Sorry, but one more. The more of these articles I read, the more it seems to come back to the word advertising.

 

This article says this in a nutshell: if you are a company or service being attacked by fake reviews, like by a sly competitor, you can try going after whoever is behind the fake reviews for defamation. But good luck.

 

The better route is to use the Lanham Act. It allows for federal jurisdiction against false advertising. But you first have to identify the perpetrator. Then you have to prove they are engaged in "commercial speech," i.e. paid advertising. The Supreme Court has ruled on this. Before 2014, in order to use the Lanham Act you had to prove that fake reviews were being put forth by a competitor. A 2014 Supreme Court ruling broadened that to having to prove that the website operator's goal is to find customers to do business with them.

 

From the article:

 

Still, the “Lanham Act has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service,” as in Reybold Group v. Doe, 2017 U.S. Dist. LEXIS 160688 (D. Del. Sept. 29, 2017) (quotations omitted).

 

So, for example, using this standard of judgment you have to prove that Daddy's Reviews is set up in a way that basically posts reviews so that people will hire Daddy. If Daddy turns out to be an elderly Gay man with a disability, that's a little dicey, I think. I mean, I've paid for his dinner a few times. So I suppose you could say that implicitly makes Daddy an escort. I guess Sean Hannity giving Cohen $10 qualifies as earning you client-attorney privilege. But does me paying $10 for Daddy's chicken strips make him an escort running a review website with a hidden and dark agenda? Personally, I don't see that.

 

More likely, it makes him a watchdog connected to lots of Gay men who are interested in outing scammers and promoting Gay professionals who offer reputable services. Nothing in the law before FOSTA suggests there is anything wrong with that.

[Bearofdistinction]

I do not think anyone has ever accused Sarah Sanders of being a crook.

 

Just give it time ---

[Bearofdistinction]

You callin mah daddy a lesbian???

 

Yupper Doodles and the conception took place while Mikey-Sue Huckabee was a-wearin his Clan Whites with his POINT STARCHED HARD!!!

[+ Awwshuck]

[RichArt]

this is a great one

[+ Cock Eyed Optimist]

Just wondering' ....... Since the Forum and Reviews were de-linked, has there been a drop off in the readers of the Forum? Many moons ago when I discovered Hooboy's site, the only way I found out about the Forum was through the Review site. How do new readers of the Reviews even know that this site exists?

I have made several good friends from the Forum, and I hope this practice continues. So I guess it boils down to: "how do new readers discover this site?".

[Guy Fawkes]

1,999 registrations in the last month.

[+ Tarte Gogo]

1,999 registrations in the last month.

Geee! In just 1 month?

I’d better increase the quality of my writing, with such an audience potentially reading it!

[+ José Soplanucas]

To be honest, I would not miss the reviews, but I could not go through my day without missing the forums. Often. This is an amazing community.

[+ oldNbusted]

It seems only yesterday the forum rolled over to 1 million posts, now it's at 1 & 1/3 million.

[Moondance]

It seems only yesterday the forum rolled over to 1 million posts, now it's at 1 & 1/3 million.

The Avalon Bump.

[marylander1940]

The Avalon Bump.

 

Let's mention him @Avalon

[+ Tygerscent]

I thought, for a moment, that the forums were deleted. Glad it is not the case.

When the content of sites, (like these or other ANY other forum) are viewed as "dangerous" (as in recently banned FB members and their content), those sites will be monitored and/or deleted/blocked~

The second amendment was secured in

2016 but, the 1st amendment has been silently slipping away unnoticed since then as well~

We're quickly approaching our "Big Yellow Taxi" moment here in the states~

Edited May 3, 2019 by Tygerscent

[+ WilliamM]

The last post in this thread was October 2018.

[+ oldNbusted]

The last post in this thread was October 2018.

 

And there are only about 50K posts since then....