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.
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Filed Under: blocking, chinese democracy, editorial choices, first amendment, free speech, search engines
Companies: baidu
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Rocked that one out of the park
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Re: Rocked that one out of the park
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Re: Rocked that one out of the park
Even when he completely disagrees, he sees the importance of rulings that uphold the Constitution.
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Response to: Anonymous Coward on Mar 28th, 2014 @ 10:16am
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Freedom isn't free.
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No. It does not.
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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.
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Parade ruling could have had great results
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Useful ruling
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Re: Useful ruling
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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
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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.
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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.
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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.
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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.
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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.
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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?
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Jurisdiction
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Re: Jurisdiction
"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.
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Parades
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.
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Re: Parades
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."
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Also, parades are not clubs, so the "private club" exception to anti-discrimination laws may very well not apply.
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