The Court of Public Opinion

Recently, Elon Musk and the New York Times took to Twitter and the Internet to argue the data -- and their grievances -- over a failed road test and car review. Meanwhile, an Applebee's server is part of a Change.org petition to get her job back after posting a pastor's no-tip receipt comment online. And when he wasn't paid quickly enough, a local Fitness SF web developer rewrote the company's webpage to air his complaint.

All of these "cases" are seeking their judgments in the court of public opinion. The court of public opinion has a full docket; even brick-and-mortar establishments aren't immune.

More and more individuals -- and companies -- are augmenting, even bypassing entirely, traditional legal process hoping to get a more favorable hearing in public.

Every day we have to interact with thousands of strangers, from people we pass on the street to people who touch our food to people we enter short-term business relationships with. Even though most of us don't have the ability to protect our interests with physical force, we can all be confident when dealing with these strangers because -- at least in part -- we trust that the legal system will intervene on our behalf in case of a problem. Sometimes that problem involves people who break the rules of society, and the criminal courts deal with them; when the problem is a disagreement between two parties, the civil courts will. Courts are an ancient system of justice, and modern society cannot function without them.

What matters in this system are the facts and the laws. Courts are intended to be impartial and fair in doling out their justice, and societies flourish based on the extent to which we approach this ideal. When courts are unfair -- when judges can be bribed, when the powerful are treated better, when more expensive lawyers produce more favorable outcomes -- society is harmed. We become more fearful and less able to trust each other. We are less willing to enter into agreement with strangers, and we spend more effort protecting our own because we don't believe the system is there to back us up.

The court of public opinion is an alternative system of justice. It's very different from the traditional court system: This court is based on reputation, revenge, public shaming, and the whims of the crowd. Having a good story is more important than having the law on your side. Being a sympathetic underdog is more important than being fair. Facts matter, but there are no standards of accuracy. The speed of the Internet exacerbates this; a good story spreads faster than a bunch of facts.

This court delivers reputational justice. Arguments are measured in relation to reputation. If one party makes a claim against another that seems plausible, based on both of their reputations, then that claim is likely to be received favorably. If someone makes a claim that clashes with the reputations of the parties, then it's likely to be disbelieved. Reputation is, of course, a commodity, and loss of reputation is the penalty this court imposes. In that respect, it less often recompenses the injured party and more often exacts revenge or retribution. And while those losses may be brutal, the effects are usually short-lived.

The court of public opinion has significant limitations. It works better for revenge and justice than for dispute resolution. It can punish a company for unfairly firing one of its employees or lying in an automobile test drive, but it's less effective at unraveling a complicated patent litigation or navigating a bankruptcy proceeding.

In many ways, this is a return to a medieval notion of "fama," or reputation. In other ways, it's like mob justice: sometimes benign and beneficial, sometimes terrible (think French Revolution). Trial by public opinion isn't new; remember Rodney King and O.J. Simpson?

Mass media has enabled this system for centuries. But the Internet, and social media in particular, has changed how it's being used.

Now it's being used more deliberately, more often, by more and more powerful entities as a redress mechanism. Perhaps because it's perceived to be more efficient or perhaps because one of the parties feels they can get a more favorable hearing in this new court, but it's being used instead of lawsuits. Instead of a sideshow to actual legal proceedings, it is turning into an alternate system of dispute resolution and justice.

Part of this trend is because the Internet makes taking a case in front of the court of public opinion so much easier. It used to be that the injured party had to convince a traditional media outlet to make his case public; now he can take his case directly to the people. And while it's still a surprise when some cases go viral while others languish in obscurity, it's simply more effective to present your case on Facebook or Twitter.

Another reason is that the traditional court system is increasingly viewed as unfair. Today, money can buy justice: not by directly bribing judges, but by hiring better lawyers and forcing the other side to spend more money than they are able to. We know that the courts treat the rich and the poor differently, that corporations can get away with crimes individuals cannot, and that the powerful can lobby to get the specific laws and regulations they want -- irrespective of any notions of fairness.

Smart companies have already prepared for battles in the court of public opinion. They've hired policy experts. They've hired firms to monitor Facebook, Twitter, and other Internet venues where these battles originate. They have response strategies and communications plans in place. They've recognized that while this court is very different from the traditional legal system, money and power does count and that there are ways to tip the outcomes in their favor: For example, fake grassroots movements can be just as effective on the Internet as they can in the offline world.

It's time we recognize the court of public opinion for what it is -- an alternative crowd-enabled system of justice. We need to start discussing its merits and flaws; we need to understand when it results in justice, and how it can be manipulated by the powerful. We also need to have a frank conversation about the failings of the traditional justice scheme, and why people are motivated to take their grievances to the public. Despite 24-hour PR firms and incident-response plans, this is a court where corporations and governments are at an inherent disadvantage. And because the weak will continue to run ahead of the powerful, those in power will prefer to use the more traditional mechanisms of government: police, courts, and laws.

Social-media researcher danah boyd had it right when she wrote in Wired: "In a networked society, who among us gets to decide where the moral boundaries lie? This isn't an easy question and it's at the root of how we, as a society, conceptualize justice." It's not an easy question, but it's the key question. The moral and ethical issues surrounding the court of public opinion are the real ones, and ones that society will have to tackle in the decades to come.


This essay originally appeared on Wired.com.

Posted on February 28, 2013 at 2:40 PM • 25 Comments

Comments

Eric blackFebruary 28, 2013 5:25 PM

My favorite example of this is the guy who wrote the song "United Breaks Guitars" and uploaded it to You Tube. It was so effective it caused United's stock price to dip. Now that's a judgement.

Orion BlastarFebruary 28, 2013 5:32 PM

Percetiption is reality to most. It is not about the truth or what is right but what they perceive. It used to be based on religion or science and now it is based on opinion and speculation controlled by talking heads in news media, blogs, and social networking sites.

Only by using critical thinking can we avoid bias, but bias gets ratings and advertising that leads to more followers and money.

MingoVFebruary 28, 2013 5:35 PM

The court of public opinion is good at two things: shaming or getting revenge on wrong-doers and libeling or slandering the innocent. It never provides justice or just compensation. It fails as a true court.

IchininFebruary 28, 2013 6:48 PM

Great, justice as a reality TV show - Not.

-"In any state if any clown
decides that now's the time to fight
for some ideal he thinks is right
and if a million more agree
there ain't no Great Society"

(Frank Zappa - Trouble Every Day)

KevinFebruary 28, 2013 8:27 PM

The number of astroturfing comments on many blogs is amazing. The multi-paragraph comments which appear seconds after a story is posted, only vaguely related but very anti-someone. I assume that it works because someone keeps paying for it.

The court of public opinion is like any other vigilante justice; as often punishing the innocent as the guilty.

McDuffFebruary 28, 2013 8:50 PM

What was the problem with the French Revolution? It got rid of a bunch of useless, freeloading aristocrats. The French are still immensely proud of the results of it. What's not to love?

Petréa MitchellFebruary 28, 2013 9:27 PM

I'm not sure if you meant it this way, but running through this essay is a seeming assumption that trial by public opinion is a more recent innovation than the "ancient" court system. The idea that everyone is ultimately subject to an impartial rule of law has gone in and out of fashion throughout history, whereas reputational judgements are as old as human intelligence.

And I'd argue the Internet has actually made this sort of thing harder. When the mass media consists of a handful of wire services and TV networks, or of just the king's heralds, or travelling bards, then you've only got to get your message into one channel to make it significant. The Internet is a zillion tiny little channels, which any given person can only pay attention to a few of.

And, to really make things happen through extrajudicial means, you don't necessarily need to gather a mob at all, just a sufficient portion of the elite. In less technological times, this could mean only having to spread your message at one particular club, lodge, salon, court, or whatever where the influential people were. Now, the elite is a larger percentage of society.
]
But there is still an elite involved; it's the people who are tech-savvy, literate, and fluent in whatever language is relevant to a particular case. Their-- our, for most people reading this-- concerns are what gets noticed, their friends are the ones who will get special treatment, and their values are the ones that will be enforced. It's especially ironic to keep seeing the Aaron Swartz case brought up as an example of a powerless person being bullied by the powerful, when the reason it's gotten so much attention is that he had connections at the highest levels of the Internet elite.

phanmoMarch 1, 2013 1:50 AM

We have to take into account the possible return vs. the effort involved; it takes very little time to write a comment or a blog post but the possible return is almost infinite. It's like the lottery except that it's free!

Jeff HMarch 1, 2013 2:11 AM

The legal system in a number of countries may have become (or even always been) about manipulating the jury, but at least they started from a principle of finding out the truth (even if way back when, it was tested by whether you floated in a pond...). I'm not sure that I agree that facts matter in the public court. I've witnessed way too many dismissals of facts in favour of whatever that particular person prefers to think. We are not by nature a species that likes to be told we're wrong, or to have to re-evaluate our position.

There's no expert opinion in the public court. There's no search for truth or justice. Very rarely is there even reasoned debate. Often the public court gets half the story (if that). The entire process often has a huge bias in that different groups will gravitate to different parts of the public court. Most of the time, lots of people with the same mindset will get together, all complain, launch meaningless campaigns, and then be terribly surprised that nobody else has heard of their cause (or often cares).

The 'public court' is just lashing out based on existing prejudices, often with no understanding of the actual topic, usually starting with a sense (justifiable or not) of being wronged. This is pretty much how politics & winning votes started, no? That and mob rule.

'We have found a witch, may we burn her?' - who is asking, and who is being asked? Really ugly mobs don't wait to ask - they hang people from trees or riot in the streets. More tempered mobs deferred inevitably to some authority figure. Today the same principles seem to have crossed over into snide remarks on forums and gossip that is the modern equivalent of discussions at the club, and the lowering of 'social standing', along with the occasional Internet-based marching with placards. Our Internet 'authority figures' are often just opinionated bloggers, and plenty of them have been found to have manipulated facts in their favour.

Society created courts & police for a reason. We don't trust our mobs or our elite, and for good reason I think. Sooner or later, someone has to go 'woah, lets' find out what really happened, shall we?'.

It's never going to be perfect, because it's a human system, but I would still have a lot more expectation of getting some money back by taking a dishonest builder to court than by outing them on Twitter (even if I did both). Not every court battle is about the elite vs the weak, remember.

CointelProMarch 1, 2013 2:43 AM

Vulnerabilities of this Court of Public Opinion, and some workaround, are detailed in http://pastebin.com/irj4Fyd5 ;

This anonymous post exposes techniques for dilution, misdirection and control of this Court of Public Opinion. It pretends to list some methods used in real world by http://en.wikipedia.org/wiki/COINTELPRO ...

Interestingly, http://cryptome.org/2012/07/... pretends that this document was censored by slashdot.

(And this blog forces me to give my e-mail address to accept this comment.)

Peter GalbavyMarch 1, 2013 3:33 AM

How is this different to advertising and marketing activities in general? The mechanics of the "amateur" vs the professional marketeer may be different and has very much been given more power by the ubiquity of the web but the rest is pretty much the same.

So, should we consider advertising a way that corporations seek to circumvent, replace or supplement the legal process too?

averrosMarch 1, 2013 3:33 AM

"What was the problem with the French Revolution?"

That it was a massive sadist orgy in which quite a few ordinary people perished. The details are too nauseating to repeat here, but it pays to remember that the Divine Marquis himself was an active participant in the atrocities. Oh, and it got France into the state of permanent decay punctuated with more revolutions (thankfully, none as bloody as the first one), and it is going downhill even now.

renoXMarch 1, 2013 9:07 AM

> Courts are intended to be impartial and fair in doling out their justice,

Yeah right in France we have a saying: "neither the rich or the poor have the right to sleep under a bridge".
Which means that the law themselves favour the rich, so as courts are meant to judge according to the laws..

Petréa MitchellMarch 1, 2013 9:23 AM

renoX:

The original quote from Anatole France, as it is usually rendered in English: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

robMarch 1, 2013 10:33 AM

Internet court of public opinion is not. These statements disguised as comments from everyday people are often directed campaigns from paid marketers or others who stand to benefit.

Northern RealistMarch 1, 2013 1:02 PM

I find this concern about the court of public opinion rather ironic, as in the US many of those "impartial" judges are in place because of that very same court of public opinion - they are voted in because their views and attitudes on morals and interpretations of the laws align with that public opinion.

pdnMarch 1, 2013 3:59 PM

I recall an article online in Slate? the Atlantic? not too long ago about someone who was paid to astroturf pro-Israeli views on forums online. They were very junior, so it wasn't a super-informative article, but it highlighted something that some people had suspected for a while.

Anyway. The shills in the crowd pervert justice; Athenian democracy was manipulated by the golden-tongued orators; the mob runs rampant with it is unleashed.

The principle of the court of law stands against this reality: the idea that it will inquire into the truth, without officers of the court being bribed. It's a system that had to be forged out of corruption to prevent corruption. That it is subject to issues is only human; that it exists in the West as it does is a very good thing. It will have to change to handle the extant corruption, as courts have had to do over the past centuries.

And that is all right.

ModeratorMarch 1, 2013 6:34 PM

(And this blog forces me to give my e-mail address to accept this comment.)

If you happen to trip a spam filter, adding your e-mail address can sometimes prompt the blog to recognize you as someone who's commented before and let you through. This only applies if you've already used an e-mail address for previous comments. If you used a fake one, that works just as well.

John GMarch 2, 2013 3:21 PM

Perhaps 'the court of public opinion' can best operate as a kind of 'jury nullification' - where the jury thinks the law is so bad or the prosecution of the particular defendant is so unjust that it acquits in the face of the evidence and the judge's legal instructions. In other words the jury nullifies the law, for the case in front of it. There are some cases around where some big bullying company has had a smaller, more innocent (in many senses) defendant dead to rights in law, but the public outrage threatened enough damage to the big company's reputation that it settled, and even apologized. (Two very recent cases in Quebec, for example.)

aaaaMarch 3, 2013 5:36 AM

@John G It be better if the court of public opinion would cause the change of abusable/bad law/law enforcement system.

Jury nullifying the law only for one case strikes me as something not really compatible with "fairness" or "justice".

FigureitoutMarch 4, 2013 12:46 AM

@Neil in Chicago
--HAHA, bigger question: Why did a POLICE station have a twitter account? What a bunch of fruit cakes. I bet they've never felt no internet/electric power and even their "trips to Iraq" were sheltered. Fruit cakes, you couldn't even make it in the wild where you hunt your food and don't shower.

Clive RobinsonMarch 4, 2013 4:34 AM

@ Neil in Chicago

I'm surprised you did not link to this "Court of Public Opinion" piece from the same UK Telegraph site,

It appears that although 150 women found the man on the spot not to their taste and demonstrated so both publicaly and physically it was he who was arrested and draged away...

http://www.telegraph.co.uk/news/uknews/9855652/...

The odd thing though is that even though the man did not measure up to the 150 womens expectations and that there had been a fair old physical melay many of the women still said they had a good time. They sound like a tough crowd "down in the valleys" so I'll put that part of the UK on my "do not visit list".

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