Legal, Policy and First Amendment Strategic Communication

Amazon v. NYT: A Case in the Court of Public Opinion

If you’ve ever shopped online for a book or movie or even a selfie stick or Halloween costume, you’re probably well aware that Amazon is one of the world’s largest marketplaces for physical goods and digital products. Its founder Jeff Bezos is widely heralded as an entrepreneur extraordinaire and a visionary in marketplace innovation. The company has redefined how people buy, sell and recommend books. It has even changed how people read books (think, Kindle).

Along with its enormity in the world’s marketplace of physical and digital products, Amazon also has grown into a formidable voice in the marketplace of ideas. As such, the company invested heavily in its public relations firepower when it hired former White House press secretary Jay Carney as senior vice president for corporate affairs in early 2015. Carney came to the position with an impressive resume in journalism, too, having worked as Washington Bureau Chief for Timemagazine and as a senior political analyst for CNN.

Less than six months after Carney’s hire, David Streitfeld and Jodi Kantor published a lengthy New York Times article calling Amazon a “bruising workplace,” based on dozens of anecdotes about the harsh working conditions. One of the most damning stories was a vivid vignette from an interview with former Amazon employee Bo Olson. “You walk out of a conference room and you’ll see a grown man covering his face,” Olson was quoted. “Nearly every person I worked with, I saw cry at their desk.” Several other former employees relayed tales of hostile peer evaluation systems, 85-hour workweeks, and pressure to work through holidays and vacations.

Kantor and Streitfeld corroborated many of their harshest assertions with information from sources who did not agree to have their names published because of nondisclosure agreements (NDAs) (contracts that outline which information must remain confidential), possible fear of retribution, or because they were still doing business with Amazon while working for other companies. The reporters wrote that the company had allowed only a few senior managers to talk to them.

At this point in the case, we can already see the First Amendment in action. As journalists, Kantor and Streitfeld exercised their right to free speech, as did many of the sources cited in their article. Though the story would certainly offend Amazon management, expose some of its executives to public criticism, and possibly even hurt its recruiting and profits, the article was protected speech under the Constitution’s First Amendment. As a secondary question of First Amendment rights, notice that Amazon restricted the speech of its employees by only authorizing a select few managers to be interviewed. The Constitution does not guarantee rights of free speech in the private sector. Employers can regulate what their employees say on the job, as long they don’t run afoul of other laws meant to protect employees from discrimination, retribution for whistleblowing (when a person inside an organization exposes illegal or unethical activity), religious intolerance, etc.

Of course, Amazon and Carney also have the right to respond. And respond they did. In a roughly 1300-word retort posted on his own page (@JayCarney) on the self-publishing platform Medium.com titled “What The New York Times Didn’t Tell You,” Carney disputed many of the claims. In doing so, he criticized the quality of the Times’ journalism. In particular, he chided them for weak fact checking and verification, as well as for selecting quotes he called sensationalistic. As his main case in point, he discussed the Olson quote. Carney wrote that Olson’s “brief tenure at Amazon ended after an investigation revealed he had attempted to defraud vendors and conceal it by falsifying business records,” and that Olson had admitted this and resigned immediately after being confronted with the evidence. “Why weren’t readers given that information?” Carney asked rhetorically.

Again, we see the First Amendment in action in that the Carney is allowed to publish his opinions and advocate strongly on behalf of his employer. Another First Amendment question emerges—what gives Carney the right to discuss the terms of a former employee’s resignation? It seems likely that Carney would have cleared his Medium piece with Amazon’s legal department before publishing, and this illustrates the importance of public relations people working well with attorneys.

Daniel Pearson of Seattle Weekly wrote in an opinion piece, “It is conceivable that, in order for Olson to fully explain what happened during his time at Amazon, he would have to delve in to the specifics of his job, which could run afoul of his NDA.” Pearson is not a lawyer, however, and so he cannot offer a definite legal interpretation without a court ruling to reference. In a later column, Pearson offered an interesting conclusion more about the court of public opinion than the court of law:

“Let this be a lesson for all you Amazonians: Jeff Bezos and his team want to hear your complaints, but if you go public with them, expect to have any dirty laundry the company has on you to get hung up in the wind.”

The battle in the court of public opinion raged on. Later in the very same day that Carney published his piece on Medium, New York Times Executive Editor Dean Baquet responded with his own Medium piece. Carney responded again. It may never end.

Who wins in this battle? You do, concluded Fortune’s Matthew Ingram. He wrote that both sides in the Amazon-NYT case are guilty of some degree of spin, “but at least we can see it happening and judge for ourselves whom to believe.” That’s what the marketplace of ideas is, and always has been, all about. Social media and platforms for self-publishing like Medium help the process. It’s remarkable that some of the most privileged voices in the world are now using platforms like Medium to exercise their free speech. You can too.