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