Court Says Google Doesn't Have A First Amendment Right To Drop A Site From Its Search Results

from the that's-not-good dept

About a decade ago, we wrote about a series of silly lawsuits against Google in which search engine optimizers sued Google because their search engine ranking sucked. All of these lawsuits went nowhere fast. The reason why seems fairly straightforward: it’s Google’s search engine, and it gets to decide how its algorithm works. Having the courts come in and start mucking with that gets problematic fast.

While I thought those kinds of cases went out of style a decade ago, apparently another SEO firm, called e-ventures, sued Google after the company called e-ventures’ site “pure spam” and removed it from the Google Index. This is a level of punishment that Google has been known to slap on really egregious and sketchy SEO tactics. Google takes a pretty hard line on really scammy tactics, and even once famously banned BMW’s website for spammy techniques.

Apparently, at some point, Google’s web spam team decided that e-ventures was spamming as well, and removed its website. The company sued under a variety of theories, but mainly claims that it did nothing that violated any of Google’s stated rules — and furthermore that Google was misleading in some of its public statements about what it will and won’t remove from the web, as well as how it alerts people to those removals. Google hit back with two responses in a motion to dismiss. First, it said that it’s protected under CDA 230 for removing content and second that the choices it makes on how the search results are ranked are protected by the First Amendment.

Somewhat surprisingly, the district court has rejected both of these arguments. This is troubling for a few reasons, as we’ll explain here.

First: the CDA 230 claim is a different one than we normally talk about with CDA 230. Normally we’re focused on CDA 230(c)(1), which talks about a service provider not being treated as the publisher of content from users. Here, no one denies that this is about Google’s own search engine and own actions. But Google is pointing to a different part of the law, sometimes known as the “Good Samaritan” clause in CDA 230(c)(2)(A), which says that no provider shall be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material….” This was designed to actually encourage sites to take down sketchy or “obscene” content. Basically, it’s saying that if you decide to take down some content you deem to be obscene it does not remove your Section 230 immunity, and it doesn’t mean you’re now required to take down content other people find obscene. Google’s argument is that this applies to search removals as well, and since it’s making a good faith effort to remove content it finds objectionable, it’s protected from liability.

This argument seems pretty strong within the context of Section 230, but the court doesn’t buy it, though it’s reasons are kind of odd:

The CDA statutory immunity is an affirmative defense which plaintiff is not required to negate in its Complaint. The plain language of the CDA only provides immunity for actions ?voluntarily taken in good faith.?… While the CDA defense may properly be considered if it is apparent from the face of the complaint, that is not the situation in this case. Here, plaintiff has included allegations within its Second Amended Complaint that Google failed to act in good faith when removing its websites from Google?s search results.

But that seems to wipe away much of CDA 230(c)(2)(A). So long as the plaintiff claims that a content removal is in “bad faith” you lose the immunity? That can’t be right… but the court says it’s fine for now.

Perhaps the bigger issue, though, is the First Amendment claim. Again, the court rejects Google’s arguments, and tries to thread the needle carefully. It says that it agrees that Google’s search rankings are protected by the First Amendment, but that the real issue here is not the actual search rankings, but rather the statements Google made about why it removes some sites.

While a claim based upon Google?s PageRanks or order of websites on Google?s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google?s search results, Google falsely stated that e-ventures? websites failed to comply with Google?s policies…. Google is in fact defending on the basis that e-ventures? websites were removed due to e-ventures? failure to comply with Google?s policies…. The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google?s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

This feels like the strongest point the court has, but it still feels pretty weak. Google’s policies include some basic catch-alls, saying that it can choose to remove search results based on “policies.” That is, it can basically decide what it wants in the search results. And that seems perfectly reasonable. It seems dangerous to think that courts can tell a website what must be included in their search engine.

The court also rejects another First Amendment argument in a way that also seems problematic — saying that while “editorial judgment” is protected by the First Amendment, anti-competitive motives are not:

While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google?s reason for banning its websites was not based upon ?editorial judgments,? but instead based upon anti-competitive motives…. Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution….

Two thoughts on this: first, the idea that Google is removing an SEO company’s websites because of anti-competitive reasons seems ludicrous on its face. I mean, Google links heavily to a number of actual direct competitors all the time. It’s beyond reason to suggest that it would target a small no-name SEO firm. Second, again, this semantic setup gives a massive out on the First Amendment. Just claim anything is not “editorial judgment” but “anti-competitive motives” and suddenly the First Amendment issue gets tossed aside?

The court also lets motions around trademark, unfair practices and tortious interference move forward, but they’re basically rehashes of the points above. The only count it dismisses is a defamation claim, which was a clear nonstarter.

While the ruling doesn’t mean that e-ventures will succeed overall, since these issues can be debated again in more detail as the case moves forward, it seems likely that Google may try to appeal the basis for these denials. No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.

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Companies: e-ventures, google

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Comments on “Court Says Google Doesn't Have A First Amendment Right To Drop A Site From Its Search Results”

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Jeremy Lyman (profile) says:

Schoolyard Courtroom

“plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies…. Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies…. The Court finds that this speech is capable of being proven true or false”

So the court is essentially weighing the matter of “you’re a liar” vs “nuh-uh”? Even if they didn’t abide by their own policy, how is that a legal issue? Surely it can’t be illegal to make a statement that turns out to be false. It might be a poor PR move to behave contrary to stated policy but unless I don’t understand it at all, that policy is not a binding contract between Google and everyone it does and does not index.

Jeremy Lyman (profile) says:

Re: Schoolyard Courtroom

Okay, I went and read the document to find out what the complaint actually was. It is 4 parts, but essentially I think it’s:

Google publicly states that it removes sites for certain shady things. It removed our site, so people will assume we have done those shady things even though there’s no proof. That’s uncompetitive, since we make money by breaking Google’s algorithm without breaking their rules.

That’s alleged to be Defamation (by inference), violate the Lanham Act (false statements in commerce), Florida Deceptive and Unfair Trade Practices Act (deceptive statements), and to be Tortious Interference (I think because customers can’t manually type a url?).

So in this instance Google’s first amendment right to remove sites isn’t being denied (though that defense was rejected), it’s whether removing a site makes an implied statement about that site because of their help documentation. They need to revise those documents (I suggest something like “screw you all”) and then they can continue to delist spammers that aren’t quite using known methods to game the system.

Anonymous Coward says:

Policy is not a binding contract? If I violate a Terms of Service agreement, am I breaking the law? In fact, at times, why yes, yes I am.

In seems that Google’s error was in their response, in that they were claiming protection under the law where they shouldn’t have. Doesn’t mean the will lose the case, but the law is the law. Hey, the gloves didn’t fit, so the case was decided.

Mason Wheeler (profile) says:

No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.

Why? Isn’t that what courts are for: to determine when a certain behavior breaks the law and tell people who are breaking it to stop? Isn’t that literally the most basic function of the court system–and now you’re saying it’s “very dangerous”?

ryuugami says:

Why not?

No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.

The Law, through DMCA and Right to be Forgotten, already tells Google what cannot be in its index. So why not tell it what can be there, too?

Just to make it clear, I consider DMCA, RtbF, as well as this ruling, bullshit of the highest order. But if they can order Google to take stuff down, it’s not much of a stretch to ordering it to keep stuff up.

DannyB (profile) says:

Re: Why not? Not much of a stretch

But if they can order Google to take stuff down,
> it’s not much of a stretch to ordering it to keep stuff up.

Coming soon . . .

It’s not much of a stretch to order Google to keep certain viewpoints up, and remove contrary viewpoints.

Brought to you by Your Friends at The Ministry Of Truth.
Learn Newspeak today! It prevents Thoughtcrime.

Anonymous Coward says:

“Google erred in their response.”

Well, that’s because they know how the MAFIAA will respond, soon enough. If the judge’s thinking holds all the way up the judicial ladder, then Google need only pit 230(c)(1) against 230(c)(2)(A), like so: “Sorry, rightsholder, but the courts have told us we aren’t permitted to omit these search results, as that would be anti-competitive to our Music Services, doncha know?” (If it’s not already around, G-Tunes will be released soon enough, this being all the incentive they need.)

Hilarity will ensue, and many lawyers will get rich(er).

jilocasin (profile) says:

Motion to Dismiss

I think people are getting a little too worked up a little too early in the process. This is a Motion to Dismiss, which [IANAL] I believe means that the judge is required to look at things in a way that is most favourable to the other party.

All the judge is basically saying is that if you squint and tilt your head sideways they might have a case. That’s all they need to survive a motion to dismiss.

It might not be likely, but it’s possible that Google maliciously removed this company from their search results and erroneously accused them of breaking one or more of Google’s policies as the reason for that removal.

Because it might be true, he can’t dismiss the case at this stage. This doesn’t mean that they are right and Google’s wrong, just that it’s too early in the process to decide that.

Anonymous Coward says:

Re: Re: Re: Motion to Dismiss

By juries of people who are carefully screened to ensure that they do no possess intrinsic biases that could unfairly disadvantage one of the parties.

Juries decide based on the evidence presented in the case. It’s up to their lawyers to introduce the necessary evidence. If a juror lacks the mental capacity to understand such evidence, that’s also part of the jury selection process to get them removed.

If you don’t like the above process, feel free to submit a friend of the court brief pointing out any additional evidence that should have been presented. Or shut up.

Anonymous Coward says:

Re: Re: Re:3 Motion to Dismiss

What you said is absolutely true, but it doesn’t invalidate anything I said either. Where did I say they should have no knowledge of the issues? I just said they should not be biased, should have the mental capacity to understand evidence, and should decide based on the evidence introduced at trial. Where is the perversion of justice in that?

Planetologist Kynes says:

Re: Re: Motion to Dismiss

But that’s not really what he’s saying. He got it basically right on his motions to dismiss description, but to your point, there is a big difference between denying a motion to dismiss and a case getting to a jury. A big thing to watch out for if appeals regarding the motion to dismiss fail will be Google’s motion for summary judgment, in which they can show (if true) that there are no facts in dispute (I.e., nothing for a jury to decide), and that they win on the law (this is where they would raise that affirmative defense, the fact that their policies have wiggle room, etc.).

The important thing to note is that the motion to dismiss is basically at the beginning of the process, and a trial (which wouldn’t happen anyway because Google would settle to avoid precedent they don’t like, and might cause them to settle without even trying for a motion for summary judgment) is waaaaaaaaay down the line and an uncertain possibility.

John85851 (profile) says:

Real world example

Here’s a real world example:

Me: I run a shady business and I want to place an ad in the Yellow Pages.
Yellow Pages: Sorry, we see that you’ve scammed people and we choose not to run your ad.
Me: Fine, then I’m suing you for anti-competitive behavior and because my right to run an ad supersedes your right to reject ads in your own book.

When has this ever happened? Can someone find me a case where someone was able to push a lawsuit against the Yellow Pages for not running their ad?
Then how is this any different besides the usual “on the computer”?

Anonymous Coward says:

Re: Real world example

Me: I run a pizza shop and I want to place an ad in the Yellow Pages.

Yellow Pages: Sorry, as we clearly state to the public, we don’t allow ads for illegal products, such as pizzas made from dog meat.

Me: But I don’t use dog meat!

Yellow Pages: We didn’t say you do, exactly (wink, wink). By the way, we do allow ads from Pizza Hut, in which we also happen to own stock.

Skeeter says:

Corporations are not Citizens

While the article writer clearly believes (from his writing), that Google benefits from the Constitution, I hate to break it to the writer, but it does NOT.

As Corporations are NOT PEOPLE, they are not protected by any provision in the Bill of Rights. This is the insanity of all laws which try to give Corporations ‘pseudo-human’ rights. Corporations are nothing but businesses. The only beings which benefit from the Constitution are those citizens which operate within the employment OF the Corporation.

While Corporations do have a quasi-protective status under many U.S. laws, they are not, per-se, protected by the Constitution. As no corporation can be ‘enslaved’, ‘imprisoned’ or ‘executed’, they are not people. They are a dissolvable business. This is why that in times of ‘egregious corporate behavior’, the ‘Veil-Can-Be-Parted’, and the individual executives (and sometimes, lower-level employees) can be audited, arrested and punished. Clearly, the courts see it for what it is – a business, sometimes a bad business, that is operated and controlled BY PEOPLE.

Ask yourself, if a Corporation (of your choice) today started to execute personnel via firing squad on their 10th anniversary with the company, would the corporation be imprisoned, or would the executives? There is your ‘litmus test’. Corporations are not privy to the Constitution, period.

Anonymous Coward says:

Re: Re: Re:3 Corporations are not Citizens

Hey, constructive criticism. You frequently start to make thought provoking (and discussion-provoking) comments, and just as you’re getting a full head of steam — boom! — a tantrum-throwing, narcissistic, socially maladjusted eleven-year-old child takes over.

If it’s intentional trolling, then that’s perfect.

If you’re actually trying to convince people that your argument concerning a given topic is more rational and logical than theirs is, well… you either need to change something, or learn to enjoy self-righteous frustration and the self-pitying feeling that your genius is going unrecognized and unappreciated.

Of course, there’s always Clozaril supplemented with benzodiazepines.

Anonymous Coward says:

Re: Re: Re:5 Corporations are not Citizens

Tone, vocabulary choice, grammatical pattern, punctuation and formatting, narrative structure, &ct. can be watched for tells that’ll id a particular person.

I can’t identify the regular ACs absolutely on every occasion, but I can usually classify them as belonging to a particular subgroup of commenters (groups and subgroups being personally defined, but consistent).

Luckily, the handful of AC’s that can be easily mixed up are not just in the same classification subgroup, they’re so similar in the nature of their perspectives and opinions that it really doesn’t matter who’s who. For all practical purposes, they’re socially and functionally identical (if not out-n-out sock-puppets). I’m not really responding to individuals when I reply to not-even-wrong, ‘had me, lost me, drove-me to the other side’ comments. In those cases, I’m responding to archetypes.

In this case, there are a few relatively new (& one or two who’ve been around for a while, but intermittently) commenters whose tone and argumentative cadence are noticeably similar, but used at different scales: there’s ‘anarcho-authoritarian pedantry’, and then there’s ‘pedantry hype-man’.

Anonymous Coward says:

Re: Re: Re:6 Corporations are not Citizens

I suppose I should’ve been more specific to the case at hand, which is that there are a couple of people who snipe with short, sarcastic, ineffectual phrases that only make sense if willful ignorance is being used to maintain a negative or hostile atmosphere in the name of trolling. Barring that, the commenter may be someone whose concrete thinking restricts his or her ability to interpret metaphor and humor, leading to frequent misunderstandings.

robin ottawa says:

Google algorithms will set you free

“…All of these lawsuits went nowhere fast. The reason why seems fairly straightforward: it’s Google’s search engine, and it gets to decide how its algorithm works. Having the courts come in and start mucking with that gets problematic fast.

Yes, their business dies if they (get caught) interfere with factual results.

Anonymous Coward says:

Poor judge doesn't realize what this is about.

Every webmaster has blacklisted somebody. In a lot of cases it is all of the CIDR blocks for an entire country. I guarantee you if you go to the webmaster for the state website and ask him for his blacklist, he’s got a fat one.

So Google never considered E-vultures to be important enough to send them a cease and desist letter, and just blocked them. Kicking a piss-stinking vagrant out of the front doorway of your bodega in the morning isn’t restricting trade. In fact trade doesn’t happen until he leaves.

This is likely about E-ventures making hay for marketing purposes, and using the court as a venue for generating publicity. Poor dumb judge…

Anonymous Cowherd says:

"nothing that violated any of Google's stated rules"

You mean Google’s lawyers forgot to add the CYA clause?

I’m not even a lawyer and even I know that something to the tone of:
“We may terminate or suspend your account at any time, at our own sole discretion, for any or no reason, with or without notice” just belongs in any remotely professional Terms of Service.

Precisely because of stupid lawsuits like this.

Anonymous Coward says:

Re: Re: "nothing that violated any of Google's stated rules"

Google’s policies include some basic catch-alls, saying that it can choose to remove search results based on “policies.”

I read the Cowherd’s comment as referring strictly to the part involving the possibility of ‘did not comply with policies’ being libelous, and the fact that their ToS didn’t include a hardcore catch-all such as ‘removal can also result from simple whimsy motivated by nothing whatsoever: we reserve the right act out of pure capricious impulsivity.’

Anonymous Coward says:

Simple way to gut the Gordian Knot, you just...

put their item on the very last page of results returned. If you have to go to the 100th, 1000th, or 1,000,000th page to see them come up, how many would actually do that. Since they are a SEO company, this might put a bit of a dint in their reputation as a SEO.

There are very few queries that don’t get at least 10 pages of results, most give me 100’s of pages of results.

And.. before anyone tries to correct the use of “gut” above, I’m pondering on when I’ll be gutting my beasties for the freezer. Need to do this soon as we’re down to our last roast now.

Anonymous Coward says:

and furthermore that Google was misleading in some of its public statements about what it will and won’t remove from the web, as well as how it alerts people to those removals.

Mike, you’ve been pointing out for years that Google can’t remove things from the web, only from its search pages. Don’t fuck up the little things, aye?

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