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.