Bad Publicity

“The only thing worse than being talked about is not being talked about.” – Oscar Wilde

Or, put another way, “there’s no such thing as bad publicity.”  But is that so?  Because for all the Kardashians and Hiltons and even would-be Phineas T. Barnums and Mae Wests, there are probably quite a few who would beg to differ.  Social media and the rise of the internet “consumer review” have changed the way we view publicity.  Websites that allow first-hand reviews like Google and Yelp now give a free platform to those who want to help a business and those who want to hurt one.

Recent legislation at both federal and state levels sets out to protect consumers who post reviews of business from pre-planned retaliatory action.  For the most part, those laws concentrate on contractual provisions that are aimed at discouraging consumers from saying anything negative about a business, usually through a mechanism of punitive fines or liquidated damages.  Essentially, any consumer who does business with a particular entity through a contract is asked, via contract, to sign away his or her right to say anything negative about the experience or pay a certain sum.  It’s a prior restraint on speech, and it stinks.  While a business may want to control how it is perceived in public, that right is not unlimited and, to my mind, this goes way too far.  (For the record, this is not a First Amendment issue because that applies only to governmental efforts to squelch free discourse, but it is still troubling to those of us, myself included, who fight for First Amendment rights.)

Fortunately, there are legislators who agree.  In December, the U.S. Senate passed, by unanimous vote, the Consumer Review Freedom Act of 2015.  That bill would make a form contract provision that restricts a party from reviewing the good contracted for void, as a matter of law, if it imposes a penalty for the review or transfers the intellectual property rights to it.  (The latter provision is a measure to protect the publishing website.)  The law aims to protect anyone who publishes a negative review of a business, and it has direct counterparts on the state level in California and, most recently, in Maryland, as well as partners in the host of anti-SLAPP laws that have been passed in a majority of states, including Texas. A House counterpart is pending.

But the hard part for honest businesses is when the reviews come, not from customers and clients, but from those who have no connection to them, at all.  Case in point, the Kratz Law Firm and its principal, Ken Kratz.  Kratz is a former Calumet County, Wisconsin, district attorney.  Call his situation “the other side of the story.”  Kratz has become the face of evil in the recent Netflix-broadcast “Making a Murderer.”  It’s a documentary about the prosecution–right or wrong, I take no position–of Steven Avery.  The documentary more than hints at the notion that the prosecution, and subsequent life sentence given to Avery, were retaliation for the Innocence Project‘s (an excellent organization, by the way) showing up and exonerating Kratz from a prior conviction.  The suggestion is that this was a personal vendetta against Avery.  Kratz became the unwitting villain of the piece, years after he left the D.A.’s office.

And that has lead to consequences for his current business, at least on social media.  As of the date I write, the Kratz Law Firm has two Yelp listings with 14 reviews, almost all very negative and most of whom do not purport to be firm clients.  (One actually states that “If I ever have the misfortune of meeting Ken Kratz . . . “ and goes on from there.)  Almost 80 Google reviews also savage Mr. Kratz’s firm, and it has driven the firm underground in terms of its web presence.  Is this right?

I have no solutions, but I can see when there is a problem, and this is a problem. Whether or not what Mr. Kratz did as a prosecutor was wholly aboveboard, what is being said about him now seems likely motivated by his role in “Making a Murderer,” and that was largely out of his hands.  There’s dispute over whether he got the opportunity to give his side of the story, but, even if he did and refused it, is this kind of opprobrium justified, coming from people who have never even met him?

I do not purport to defend Mr. Kratz from any legitimate criticism, but our public discourse is coarse enough, as it is, without allowing hyperbole and supposition to dictate its terms.  I find the public pillorying of anyone disturbing when it is based on something other than personal knowledge and understanding.  Moreover, our justice system is adversarial.  Mr. Kratz had a duty to his client–the state–just as much as I have a duty to every one of mine.  If the state wants to criticize Mr. Kratz, it can certainly do so, and if the attorneys who had contact with him, representing defendants, want to do so, they are wholly justified.  But, outside the courtroom, those who get their information from only one source have little to say.  Their sayings should have correspondingly little impact.