Shari Claire Lewis ()
In an ironic twist, China’s largest search engine, Baidu, has successfully argued that it was entitled to First Amendment protection in regard to its search engine results in the United States, which excluded statements by the plaintiffs, a group of New York residents who “advocated” for “the Democracy movement in China.” In a question of first impression in the Second Circuit,1 the U.S. District Court for the Southern District of New York, ruled that the First Amendment protects as speech the results produced by an Internet search engine. Accordingly, the court, in a decision by U.S. District Judge Jesse M. Furman, dismissed the lawsuit brought by the plaintiffs alleging, inter alia, that Baidu.com had violated the plaintiffs’ civil rights under the U.S. and New York Constitutions.
The court’s decision, in Zhang v. Baidu.com2 is particularly noteworthy in that the First Amendment right it protected was Baidu’s right to censure the free political speech of others. In essence, the court decided that Baidu had the right to publish or not in its search engine, and its right not to speak trumped any obligation on its part to give voice to all speakers.
The defendant operates a Chinese language search engine, akin to Google, through which users can locate information, products, and services using Chinese language search terms and Chinese “phonetics.” It is alleged to be the third largest search engine provider in the world and is estimated to have a 70 percent share of the Chinese-language market, worldwide.
In their complaint, the plaintiffs alleged that Baidu conspired to prevent “pro-democracy political speech” from appearing in its search engine results in the United States. Each plaintiff had published articles, video recordings, audio recordings, or other publications on the Internet regarding the democracy movement in China. They alleged that although their publications appeared in results returned by other search engines, such as Google and Bing, they did not appear in Baidu’s search results because Baidu deliberately blocked them. The plaintiffs brought eight claims: conspiracy to violate their civil rights, pursuant to 42 U.S.C. §1985; violation of their civil rights on the basis of race, pursuant to 42 U.S.C. §1981; violation of their civil rights under color of state law, pursuant to 42 U.S.C. §1983; denial of their right to equal public accommodations, in violation of New York Civil Rights Law §§40 and 40-c, New York Executive Law §296(2), and New York City Administrative Code §8-107(4)(a); and denial of the equal protection of the laws guaranteed by New York Constitution Article 1, §11. They sought $16 million in damages, plus attorney’s fees and costs.
Baidu moved for judgment on the pleadings.
The Court’s Decision
The court granted Baidu’s motion, finding that the First Amendment “plainly shields Baidu” from the plaintiffs’ claims in this case.
The court explained that the plaintiffs’ theory was that Baidu exercised editorial control over its search results on certain political topics—namely, by disfavoring expression concerning “the Democracy movement in China” and related subjects. In other words, the plaintiffs sought to hold Baidu liable for a conscious decision to design its search engine algorithms to favor certain expression on core political subjects over other expression on those same political subjects.
In the court’s view, to allow the plaintiffs’ suit to proceed would “plainly” violate the “fundamental rule of protection” under the First Amendment that a speaker has the autonomy to choose the content of its own message and that freedom of speech prohibits the government from telling people what they must say. Moreover, the court decided, the plaintiffs’ allegation that Baidu exercised editorial judgment “in cooperation with and according to the policies and regulations of” China made no difference to its conclusion, because whether Baidu designed its systems and search engines to exclude specific content at the behest, or in furtherance of the interests, of China did “not bear on the nature or extent of Baidu’s First Amendment rights.”
In explaining its holding, the court rejected every argument put forth by the plaintiffs. It found that it was clear that Baidu was engaged in and transmitted speech and thus was entitled to the protection of the speech and press provisions of the First Amendment, noting that the plaintiffs’ own theory was that Baidu exercised “editorial discretion” over its search results and thereby sought “to communicate messages on a wide variety of topics and in a wide variety of formats.”
The court also pointed out that Baidu was not a “mere conduit” for the speech of others that could be required to provide access, finding, in fact, that it was “debatable whether any search engine” was a mere conduit given the judgments involved in designing algorithms to choose, rank, and sort search results. In any event, the court continued, Baidu was not a mere conduit for purposes of this case because the plaintiffs themselves had alleged that Baidu was “more than a passive receptacle or conduit for news, comment, and advertising.”
The court also decided that Baidu and other search engine operators (at least in the United States and given current technology) lacked the physical power to silence anyone’s voices, no matter what their alleged market shares might be, noting that as the plaintiffs’ own publications made clear, Baidu did not have the ability to block “pro-democracy” writings from appearing on the Internet in this country altogether—it only could control whether it would help users find them. The court observed that the plaintiffs themselves had acknowledged that their pro-democracy works were widely available to the public on the Internet via search engines such as Google, Yahoo, and Bing.
Moreover, the court continued, to allow the plaintiffs’ suit to proceed would contravene the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. It rejected the plaintiffs’ arguments that Baidu was not speaking but was engaging in discriminatory conduct for which it could be held liable under federal civil rights laws and New York’s public accommodations law, noting that the plaintiffs’ theory of the case was that Baidu actually was exercising editorial discretion and favoring some “political speech” over other “political speech.”
The court then easily rejected the plaintiffs’ argument that the First Amendment was not implicated because their suit was a private suit that did not involve direct government regulation, declaring that the plaintiffs were seeking to enlist the government—through the exercise of the court’s powers—to impose a penalty on the basis of the content of Baidu’s speech. It also rejected the plaintiffs’ argument that Baidu’s results were commercial speech entitled to less protection, finding that the search results at issue in this case related to matters of public concern and did not themselves propose transactions, and adding that the fact that Baidu had a “profit motive” did not deprive it of the right to free speech any more than the profit motives of newspapers deprived them of the right to free speech.
In conclusion, the court stated, the plaintiffs’ efforts to hold Baidu accountable for its editorial judgments about what political ideas to promote ran afoul of the First Amendment.
How broadly can the court’s decision be interpreted? If a search engine’s editorial judgment is similar to a newspaper editor’s judgment of which stories to run and where to place them in the newspaper, does the First Amendment fully immunize search engine results from most, if not all, kinds of civil liability and government regulation? Can laws of general applicability, such as antitrust laws, be applied to search engines without implicating the First Amendment? Can a search engine be held liable for false statements concerning its methodology or search results?3
Some commentators have suggested that search engine results should be afforded a lesser degree of First Amendment protection, more akin to the level afforded to cable companies by the U.S. Supreme Court in Turner Broad. Sys. v. FCC,4 where the court reviewed regulations requiring cable operators to carry the signals of a specified number of local broadcast television stations and applied only “intermediate” scrutiny. The court began its analysis in Turner by stating that there could be “no disagreement” that a cable operator, by exercising editorial discretion over which stations or programs to include in its repertoire—that is, by exercising editorial discretion over speech created by others—was engaged in and transmitted speech protected by the First Amendment. Nevertheless, the court held that an intermediate level of scrutiny was appropriate because cable operators were mere conduits for the speech of others, transmitting it on a continuous and unedited basis to subscribers; because cable operators had the ability to shut out some speakers, giving rise to the government’s interest in limiting monopolistic autonomy to allow for the survival of broadcasters that might otherwise be silenced and consequently destroyed; and because the regulations at issue in that case were content-neutral as they did not impose a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator had selected or would select. That is, although acknowledging that cable operators were engaged in speech, the court granted lesser protection to that speech because of its less expressive nature, the technological quasi-monopoly in the marketplace of ideas enjoyed by the cable companies, and the fact that the regulations did not discriminate on the basis of content. In Baidu, the court rejected the application of the lesser standard, but did not consider whether the availability of English language search engines were true equivalents to Baidu.com for the purpose of alternative access to Chinese-language content.
Whether other courts, including circuit courts of appeals, might decide that search engine results also should be afforded lesser protection under the First Amendment remains to be seen. For now, at least, given the court’s decision in Baidu, the search engine results of Baidu and of U.S.-based search engines are entitled to the full breadth of protection under the First Amendment.
Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler, can be reached at email@example.com.
1. The court noted that only two federal courts outside of the Second Circuit appear to have been faced with the First Amendment’s application to search engine results; both courts found that search engine results were protected by the First Amendment. See Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007); Search King v. Google Tech., No. CIV-02-1457-M (W.D. Okla. May 27, 2003).The court also noted that numerous legal commentators have explored the subject. See, e.g., James Grimmelmann, “Speech Engines,” 98 Minn. L. Rev. 868 (2014); Stuart Minor Benjamin, “Algorithms and Speech,” 161 U. Pa. L. Rev. 1445 (2013); Tim Wu, “Machine Speech,” 161 U. Pa. L. Rev. 1495 (2013); Michael J. Ballanco, Comment, “Searching for the First Amendment: An Inquisitive Free Speech Approach to Search Engine Rankings,” 24 Geo. Mason U. C.R. L.J. 89 (2013); Eugene Volokh & Donald M. Falk, “Google First Amendment Protection for Search Engine Search Results,” 8 J.L. Econ. & Pol’y 883 (2012); Oren Bracha & Frank Pasquale, “Federal Search Commission? Access, Fairness, and Accountability in the Law of Search,” 93 Cornell L. Rev. 1149 (2008); Josh Blackman, “What Happens if Data Is Speech?,” 16 U. Pa. J. Const. L. Online 25 (2014).
2. No. 11 Civ. 3388 (JMF) (S.D.N.Y. March 27, 2014).
3. Cf., e.g., Connecticut v. Moody’s, No. X04HHDCV106008836S (Conn. Super. Ct. May 10, 2012) (holding that a state civil enforcement action against a bond rating agency for allegedly false statements about the manner in which the agency operated its business was not barred by the First Amendment even if the underlying ratings themselves enjoyed First Amendment protection).
4. 512 U.S. 622 (1994).