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US Judge: Baidu's Decision To Block Certain Sites Is Protected By The First Amendment

from the of-course-it-is dept

We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it's in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York's "public accommodations law."

And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:
In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”
My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY's public accommodations law -- and whether or not that compels Baidu to "speak" in a certain way by changing its algorithms and results. It's that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu's choices are a form of protected expression.

The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case -- Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can't be forced to include groups they disagree with:
The question in Hurley was whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at 11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the parade organizers did not themselves create the floats and other displays that formed the parade and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor . . . does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”
In both of these cases, I would personally disagree with the choices made. I think it's awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it's ridiculous that various St. Patrick's Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.

This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there's really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ehud Gavron (profile), Mar 28th, 2014 @ 9:31am

    Rocked that one out of the park

    Awesome analysis, Mr. Masnick!

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:00am

    Well that should knock all complaints about hidden comments on the head.

     

    reply to this | link to this | view in thread ]

  3.  
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    OldMugwump (profile), Mar 28th, 2014 @ 10:06am

    Re: Rocked that one out of the park

    Awesome analysis, Judge Furman!

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:07am

    Someone needs to make this concept clear to the fools who cry 'FREE SPEECH' when A&E pulled p. robertson from duckface dynasty...

     

    reply to this | link to this | view in thread ]

  5.  
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    Pragmatic, Mar 28th, 2014 @ 10:09am

    Re:

    Yeah, like that'll happen. You can lead a horse to water, and all that. Some people think they have a right to be heard. They don't. Speaking and being heard are completely different things and Judge Furman called it right.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:16am

    So does this ruling stop the MAFIAA from getting Google to block or delist certain sites from its search engine.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:19am

    Parade ruling could have had great results

    Imagine, west-burrow baptist church marching in a gay pride parade.

     

    reply to this | link to this | view in thread ]

  8.  
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    Baldaur Regis (profile), Mar 28th, 2014 @ 10:23am

    The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper...
    Personally, I would have been happier if the judge compared Baidu to, say, a foreign company not subject to US laws, and furthermore ruled that accessibility of a webpage to a computer located in country X does not automatically make the website owner subject to country X jurisdiction.

     

    reply to this | link to this | view in thread ]

  9.  
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    Tim R (profile), Mar 28th, 2014 @ 10:27am

    Re:

    I was actually thinking the same kind of thing in another direction. Does this stop the MPAA/RIAA from insisting that Google promote their own sites?

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:41am

    Useful ruling

    Couldn't this ruling also be used against the Movie / Music studios who are always trying to get Google to change its search results?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:42am

    Wait, Computer-generated listings created by algorithms taking user clicks are speech?

    Am I the only one seeing the obvious flaw here: who is speaking and who is responsible for the speech?

    This is a terrible ruling, and a terribly broke line of reasoning.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 10:43am

    Re: Useful ruling

    No, it's the opposite way around. If Google has a right to censor, they have a responsibility for what is not censored.

     

    reply to this | link to this | view in thread ]

  13.  
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    avideogameplayer, Mar 28th, 2014 @ 10:43am

    Response to: Anonymous Coward on Mar 28th, 2014 @ 10:16am

    It might've if Google had enough balls to flip off the MAFIAA to begin with...

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    PRMan, Mar 28th, 2014 @ 10:44am

    Re: Rocked that one out of the park

    This is why I love Mike Masnick and this site. Least biased reporter on the planet.

    Even when he completely disagrees, he sees the importance of rulings that uphold the Constitution.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    PRMan, Mar 28th, 2014 @ 10:45am

    Re:

    They voted with their dollars by buying all the merchandise with his picture on it. They made it clear that the loudest voices are not always the majority.

     

    reply to this | link to this | view in thread ]

  16.  
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    Anonymous Coward, Mar 28th, 2014 @ 10:50am

    I just Gooled Bidau.

    What I found is that Bidau is a Chinese company, located in China, under Chinese law.

    What I do not understand is how and why a US court has any jurisdiction over a Chinese company's actions in China.

    If I recall correctly that was the bases of the US Declaration of Independence from the UK. That the UK has no jurisdiction over America.

    How is it now that the inverse is not true?

     

    reply to this | link to this | view in thread ]

  17.  
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    Anonymous Coward, Mar 28th, 2014 @ 10:53am

    Re:

    It creates responsibility on the search engine's side.

    Freedom isn't free.

     

    reply to this | link to this | view in thread ]

  18.  
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    Anonymous Coward, Mar 28th, 2014 @ 11:00am

    Jurisdiction

    Why the hell is a US court ruling on a Chinese company's right to block particular websites? Is the United States' dream of becoming world police now fully realized?

     

    reply to this | link to this | view in thread ]

  19.  
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    Mike Masnick (profile), Mar 28th, 2014 @ 11:09am

    Re: Useful ruling

    Couldn't this ruling also be used against the Movie / Music studios who are always trying to get Google to change its search results?

    For the most part, the MPAA/RIAA have yet to assert a *legal* right to do that. They've just pressured Google into such. However, this issue could come up in future copyright reform, if such a law attempted to require search engines to change results.

    It was probably a bigger concern in antitrust cases, in which some (i.e., Microsoft) sought to force Google to change its results.

     

    reply to this | link to this | view in thread ]

  20.  
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    Mike Masnick (profile), Mar 28th, 2014 @ 11:11am

    Re: Re: Useful ruling

    No, it's the opposite way around. If Google has a right to censor, they have a responsibility for what is not censored.

    That is simply not true. There is no basis for that statement at all.

    See here for more: https://www.techdirt.com/articles/20140317/10060326596/why-moderating-comments-doesnt-remove-section -230-protection-why-more-lawyers-need-to-understand-this.shtml

     

    reply to this | link to this | view in thread ]

  21.  
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    Mike Masnick (profile), Mar 28th, 2014 @ 11:11am

    Re: Re:

    It creates responsibility on the search engine's side.


    No. It does not.

     

    reply to this | link to this | view in thread ]

  22.  
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    Mike Masnick (profile), Mar 28th, 2014 @ 11:12am

    Re:

    Wait, Computer-generated listings created by algorithms taking user clicks are speech?


    The listings are a form of opinion -- an opinion generated by algorithms that are a form of expression of the programmers.

    Am I the only one seeing the obvious flaw here: who is speaking and who is responsible for the speech?


    I'm not sure what you're getting at, but you appear to be confused about this ruling.

     

    reply to this | link to this | view in thread ]

  23.  
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    John Fenderson (profile), Mar 28th, 2014 @ 11:14am

    Re: Re:

    "Freedom isn't free."

    Tell that to all the companies who are trying to shift the cost and burden of their responsibilities to inappropriate third parties such as search engines. They're definitely trying to get their freedom for free.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 11:15am

    Parades

    "[I think] it's ridiculous that various St. Patrick's Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include."

    Should organizers of these parades have the right to decide what not to include when a lot of these parades are pretty much sanctioned by the city?

    Cities grant parade organizers a temporary monopoly over street access on the day of the parade, and if your goal is to hold a yearly parade then there's only 365 days on which you can do so. For the city to grant "St. Patrick's Day" organizers the right to hold a parade on that day while denying it to those who would spread a different message deprives the latter of the opportunity to express themselves. I would argue that blocking "block gay, lesbian and bisexual groups from participating" is very much a free speech violation.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 11:18am

    Re: Re: Useful ruling

    Bullshit. if the search results are free speech, that makes attempts to block them censorship.

     

    reply to this | link to this | view in thread ]

  26.  
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    John Fenderson (profile), Mar 28th, 2014 @ 11:19am

    Re: Jurisdiction

    They're ruling on Baidu's actions in the US, not China. However, I do agree with you that this is potentially problematic from a jurisdictional point of view. For example, if an online service is run and operated outside of the US, I don't think the US courts should have much, if any, say about how they operate.

    "Is the United States' dream of becoming world police now fully realized?"

    Oh, that was fully realized a long time ago, much to the detriment of many, including the United States.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 11:44am

    Re: Re:

    I'm not the one confused here. You're making baseless claims that freedom of speech protection for search results has created a happy land where search engines won't be constantly whined about by would-be-censors.

    The exact opposite effect will clearly happen- people will start wondering why exactly this "speech" isn't held to the same responsibility of other speech with freedom, but limits to that freedom.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 11:52am

    Re: Parades

    Being treated poorly is persecution, as is not being treated well when anyone else would have been.

    I am not persecuted because any public/private group won't let me into a club. If they don't want me there, it doesn't matter why. Maybe it's because I'm an asswhole, smelly, or gay.

    I grow weary of the incessant whining about equality which amounts to "Some pigs are more equal."

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:05pm

    Re: Re: Re:

    you realise that search results suddenly got a huge boost in protection? that makes DMCA notices and similar attempts to stop them censorship.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:22pm

    Re:

    No, since apparently the First Amendment goes out the window as soon as you bring up copyright.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Zonker, Mar 28th, 2014 @ 12:24pm

    Re: Parades

    I don't see the exclusion of one group from the parade as a free speech issue at all. Sure you could block them from entering a float into the parade that shaped like a phallus or had rainbows or something if you don't want that in your parade, but that is wholly different from excluding a group for what they are which makes the issue discrimination. Would they be allowed to forbid blacks, Asians, women, non-Irish, or even, ironically, Irish people from participating in the parade?

     

    reply to this | link to this | view in thread ]

  32.  
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    John Fenderson (profile), Mar 28th, 2014 @ 12:38pm

    Re: Re: Parades

    I think they're saying that the act of excluding certain groups is itself the protected speech (since I can't think of any other interpretation that makes sense).

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:42pm

    Re: Re:

    Apparently, it is if you're the government. But hey, the government makes the rules, y'know.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:44pm

    Re: Re: Parades

    The difference between a club and a parade is that parades are effectively sanctioned by the city. Like I said, there's only 365 days on which to hold a parade, and since there's no way a city would allow parades to be held every day of every year the actual opportunities are in fact far fewer than 365 per year. There's no way to accommodate every group that would wish to express itself on an exclusive basis, so if you're going to allow any parades at all they must be equally open to all citizens.

    Also, parades are not clubs, so the "private club" exception to anti-discrimination laws may very well not apply.

     

    reply to this | link to this | view in thread ]

  35.  
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    Mike Masnick (profile), Mar 28th, 2014 @ 2:50pm

    Re: Re: Re:

    You're making baseless claims that freedom of speech protection for search results has created a happy land where search engines won't be constantly whined about by would-be-censors.

    Huh?

    The exact opposite effect will clearly happen- people will start wondering why exactly this "speech" isn't held to the same responsibility of other speech with freedom, but limits to that freedom.

    Double huh? This makes no sense. You appear to have totally misread this ruling and/or do not understand the First Amendment.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Anonymous Coward, Mar 28th, 2014 @ 6:24pm

    Re: Re:

    Or the most well thought-out

     

    reply to this | link to this | view in thread ]


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