A New York federal judge has dismissed a complaint alleging Baidu Inc., operator of China’s leading Internet search engine, violated the civil rights of pro-democracy activists by blocking their writings, videos and other media from its U.S. search results.
Judge Jesse Furman of the U.S. District Court for the Southern District of New York ruled Thursday in Zhang v. Baidu.Com Inc. that the First Amendment protected Baidu’s right to control how and what search results were presented to its users. He noted that media companies enjoyed a similar right to control their editorial content.
The case, which asked for $16 million in damages, was brought by a number of New York residents who advocate for democracy in China. They pointed out that the content blocked from Baidu search results comes up in searches on Google and Microsoft Bing. Baidu censors its search results in conformance with policies of the Chinese government restricting access to certain kinds of information.
Furman cited two U.S. Supreme Court cases that he said established that the government could not interfere with the editorial judgment of private companies speaking on issues of public concern.
In a 1974 decision, Miami Herald Publishing Co. v. Tornillo, the high court rejected a Florida law that would have forced newspapers to provide the right of reply to political candidates about which the newspapers had written negative editorials, finding that it would place “an impermissible content-based burden on newspaper speech.”
The judge also pointed to the Supreme Court’s 1994 decision in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, which held that the state of Massachusetts could not mandate the inclusion in a St. Patrick’s Day parade of marchers expressing views the organizers did not wish to convey.
Furman noted these First Amendment protections are not exclusive to the press and are not only relevant to specific, coherent messages. He also said the government does not have the right to change a message deemed unacceptable by some group in order to make it more acceptable in the public sphere.
“In light of those principles, there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation,” Furman wrote. “The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later).”
While these Supreme Court cases do not address the specific issue raised in the Baidu case, “its First Amendment jurisprudence all but compels the conclusion that plaintiffs’ suit must be dismissed,” Furman said.
Quinn Emanuel Urquhart & Sullivan Hong Kong partner Carey Ramos acted for Baidu in the case. The plaintiffs were represented by New York lawyer Stephen Preziosi.