Yelp appears in The Bob Zadek Show as a source of data and as an example in legal argument, not as the subject of an organizational profile. Across three episodes the program’s guests and host refer to Yelp in three distinct contexts: the closure of small businesses during the COVID-19 lockdowns, the protection Section 230 gives platforms against defamation suits over user reviews, and the use of Yelp ratings to test claims about occupational licensing.
Small business and the lockdowns
In the August 27, 2020 episode, Bob Zadek opened the show by citing Yelp as the source of a statistic about small business closures. According to Yelp, he said, about half of the businesses that Yelp follows and reports upon in America—which he described as small businesses—had closed and were unlikely to reopen. He called this “scary stuff,” both for the businesses that failed and for the rest of us, and framed small business as the proverbial canary in the mineshaft: as small business goes, so goes the rest of us. The Decline of American Independence (2020)
Zadek placed the statistic within a broader argument about economic independence. He described the episode as recognizing, and expressing concern over the loss of, the entrepreneurial class in the country, specifically small business. The independence he said was at stake was independence from government intrusion into private daily lives—freedom to trade with whomever one wishes and to go about one’s life having total dominion over how one spends one’s days and money, free from government interference so long as the activities undertaken do not impair the equal rights of others. He called that the founding principle. The Decline of American Independence (2020)
The guest for that episode was Robert C. Wright, introduced by Zadek as an economics professor, an author or co-author or editor of over a dozen books, a resident research fellow at Georgia College and State University, a senior fellow at the American Institute for Economic Research, and a member of the American Philosophical Society. The excerpt of the episode ends at Zadek’s welcome to Wright; the transcript does not contain Wright’s response or any further discussion of the Yelp figure. The Decline of American Independence (2020)
Anonymity, Section 230 and online reviews
Yelp returns in the March 28, 2022 episode on anonymity, where Zadek used it as a surrogate for all the ways the public may comment anonymously about service experienced with a private actor in commerce. He asked guest Jeff Kosseff whether that area is basically unregulated, and where the “should” fits in as to how government through the legislature should react to that classification of anonymous speech. The United States of Anonymous (2022)
Kosseff answered that we are generally at the right place but could use a little tweaking. Using Yelp as the example, he explained that Section 230 says that if a business believes a review on Yelp is defamatory, it will not be able to successfully sue Yelp for defamation. Yelp can keep the review up or take it down as it chooses, but it will not act out of threat of being sued by the subject. Kosseff said that is controversial for a number of reasons, but that he thinks it is generally the right balance, because in countries that do not have something like 230, businesses are often able to get critical but not defamatory content taken down, since no rational platform wants to spend hundreds of thousands of dollars on litigation. The United States of Anonymous (2022)
Kosseff also drew a distinction about what Section 230 does not do. It does not prevent the subject of a review from suing the person who posted it, because there legitimately could be something in the review that is defamatory. Defamation is a very high bar in the United States, he said, but there clearly are times when something is adjudicated defamatory and therefore is not constitutionally protected speech once it has met all of those bars. He noted that for a lot of platforms the general policy is that they typically—not always—will voluntarily take content down if there is a court order adjudicating it defamatory. But at least one court has ruled that if there is an adjudication on the merits, the platform is not required to take the content down because of Section 230. Kosseff said he thinks that goes a little too far, and that Chris Cox, the former congressman who is one of the two co-authors of 230, has recently written sharing the same sentiment, saying he never intended Section 230 to say that a platform does not have to take down content adjudicated on the merits to be defamatory or otherwise illegal. Kosseff called that a small change but an important one, and said the people who have the worst experiences with online anonymity are those who simply want the stuff taken down. The United States of Anonymous (2022)
Earlier in the same episode, Kosseff had described the Supreme Court’s treatment of anonymous speech more generally. He said that starting in 1960 the court traced the historical right of anonymous speech back to Thomas Paine and the Federalist Papers, and that in a few cases starting in 1960 and extending into the ’90s and early 2000s involving government restrictions requiring the authors of pamphlets to have their names on them, the court repeatedly said those authorship requirements violated the First Amendment. He described Justice Thomas, an originalist, concurring with majority opinions written by liberal justices in some anonymous speech cases while arguing the court should have gone further in protecting anonymous speech, on the reasoning that so much of what was written at the time the Bill of Rights was adopted was anonymous and pseudonymous. Kosseff said the late Justice Scalia, also an originalist, very strongly disagreed, saying that if it was meant to say anonymity, it would say it. The United States of Anonymous (2022)
Kosseff also said the protection is not absolute, and that the primary area where the Supreme Court has said there is no right to anonymous speech is the campaign finance and elections context—both in disclosing the names of people who had spent money on campaigns or political ads and even the names of people who had signed ballot referenda. In those cases, often over the dissent of Justice Thomas, the court has said there is a strong public interest in informing the electorate and making sure they understand who is funding campaigns. Zadek responded that the distinction struck him as indefensible hypocrisy: that it is acceptable to be anonymous in distributing a pamphlet expressing a political point of view but not acceptable to anonymously support that part of the political process with money. He said the problem, if money pollutes or becomes toxic, is with the politician who allows himself or herself to be influenced by the money, not the giver of the money. The United States of Anonymous (2022)
Yelp data and occupational licensing
In the November 21, 2022 episode, Yelp appears as the dataset for a study on occupational licensing. Zadek introduced the episode by asking whether anyone hiring an interior decorator asks first whether the decorator is licensed, and said that no one relies on the occupational licensing regime—which he called massive and some would say unconstitutional—yet it exists. He noted that a person might check Yelp or other online screening devices, and that we have more resources than ever before. New data shows that occupational licensing does nothing to increase quality (2022)
Guest Dick Carpenter, identified as Senior Director of Strategic Research at the Institute for Justice, described a study he led that IJ had just published. He said one claim people make is that licensing increases quality of service, and that this is a testable proposition. The data they used was Yelp data. Carpenter said that unlike at any point in history, we now have the ability through crowdsourcing—and Yelp data is a form of that—to hear from other consumers about their experiences and even rate the quality of those services. New data shows that occupational licensing does nothing to increase quality (2022)
Carpenter said the study examined differences in quality of service within six different occupations in nine comparisons, because some occupations had multiple states and multiple comparisons. The design put the argument of licensing proponents to the test: if licensing improved quality, one would expect quality of service in a licensed occupation in a licensed state to be greater than in a bordering or neighboring state with no license or a less severe licensing requirement. Carpenter said that across all comparisons, licensing did not improve quality of service, and that the findings were very similar to those of other researchers who asked similar questions using similar types of analysis. The occupations examined were interior designers, locksmiths, manicurists, tree trimmers, barbers and cosmetologists. In two of the comparisons, Carpenter said, licensing actually produced less quality—quality was less in the more burdensomely licensed state than in the less burdensomely licensed state. New data shows that occupational licensing does nothing to increase quality (2022)
Asked by Zadek to explain the method in more detail, Carpenter said they gathered thousands and thousands of Yelp reviews for firms in those occupations. As an example, they looked at locksmiths in Pennsylvania and New Jersey, gathering reviews for locksmith companies within a small number of miles around the state border between the two states, and compared the Yelp ratings of firms in the licensed state—New Jersey—to the unlicensed state, Pennsylvania. Because the firms are within a small bandwidth of miles, Carpenter said, other characteristics that might affect quality of service are similar, since the firms operate in a tight geographical region and probably serve a similar population with similar economic characteristics. That allowed the researchers to isolate the one difference that mattered—whether the firm had to earn a license—and compare them through a statistical procedure called regression discontinuity, which enables them to say whether there is a difference and whether any difference is greater than what might be expected by random chance or statistical noise. New data shows that occupational licensing does nothing to increase quality (2022)
Across episodes
The excerpts show no development in how the program treats Yelp; the three episodes use it for unrelated purposes. The 2020 episode cites Yelp as the source of a statistic about small business closures, the March 2022 episode uses Yelp as an example in a discussion of Section 230 and anonymous online reviews, and the November 2022 episode describes Yelp reviews as the dataset for an Institute for Justice study of occupational licensing. Bob Zadek is the host in all three; the guests who discuss Yelp are Robert C. Wright, Jeff Kosseff and Dick Carpenter respectively.
What the sources do not cover
The excerpts do not describe Yelp as a company: they give no founding date, founders, headquarters, ownership, business model or corporate history. They do not state the size of the Yelp dataset used in the licensing study beyond “thousands and thousands” of reviews, nor the full list of state comparisons beyond the locksmith example of Pennsylvania and New Jersey. The excerpts also do not report the outcome of any defamation case involving Yelp, the name or citation of the court ruling Kosseff mentions, or the title of the Institute for Justice study.