First Amendment protects Internet search results: N.Y. judge

By Alison Frankel
March 28, 2014

U.S. District Judge Jesse Furman of Manhattan grabbed the chance Thursday to set precedent on a question that has received surprisingly little attention in the courts: Does the First Amendment’s protection of free speech extend to the results of Internet searches? Furman was clearly captivated by the issue as an intellectual challenge, delving into the vigorous academic discussion of the First Amendment and Internet search even deeper than the two sides in the case, the Chinese search engine Baidu and the activists who sued the site for supposedly violating their civil rights by blocking their pro-democracy works from appearing in search results. In a supersmart opinion that Furman seems to have written to be widely read, the judge concluded that when search engines exercise editorial judgment – even if that judgment is just algorithms that determine how results will be listed – they are entitled to free speech protection.

That protection, he said, is quite broad in scope. “There is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation,” Furman wrote. “The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later).”

The judge said U.S. Supreme Court precedent on the First Amendment “all but compels” his conclusion. The plaintiffs in the Baidu case are New York residents accusing the search engine of suppressing their political speech at the behest of the Chinese government. Those allegations, Furman wrote, necessarily imply that Baidu is exercising editorial judgment. So the search engine, he said, is no different from a newspaper editor deciding what stories to run, a guidebook writer picking which events to highlight or Matt Drudge making judgments “about which stories to link and how prominently to feature them.” And though it might seem counterintuitive that the right of free speech would protect editorial judgments to squelch free speech, Furman said that’s the point of the First Amendment.

“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,” he wrote.

Two other federal judges have previously held that the First Amendment applies to Internet search results, according to Furman: a 2007 ruling, Langdon v. Google, from U.S. District Judge Joseph Farnan of Delaware, and a 2003 case, Search King v. Google, from U.S. District Judge Vicki Miles-LaGrange of Oklahoma. Neither gave the issue the thorough analysis Furman devoted to it. Of his own accord, the judge dived into the academic debate on free speech, government regulation and Internet research (which, he noted, plaintiffs’ lawyer Stephan Preziosi of The Law Offices of Stephen N. Preziosi hadn’t cited). In particular, Furman seems to have been guided by a 2012 piece by Eugene Volokh and Donald Falk, “Google First Amendment Protection for Search Engine Results,” which, among many other points, notes that search engine algorithms “inherently incorporate the search engine engineers’ judgments about what material users are most likely to find responsive.”

Furman also examined a contrary theory suggested by Oren Bracha and Frank Pasquale in a 2008 Cornell Law Review article – that under the Supreme Court’s 1994 ruling in Turner Broadcasting System v. FCC, search engine results are not entitled to full free speech protections. (The Bracha paper actually addressed whether the government ought to be able to regulate search engines, not the issue in the Baidu case, and concluded that the First Amendment does not shield search engines from regulation because under Turner, private interests with quasi-monopoly control cannot impede the free flow of information.) Though Furman said he didn’t need to resolve the scholarly debate, he also said that the Turner precedent is inapt because (among other things) no search engine has monopolistic control over information on the Internet. Baidu can block results on its site, Furman said, but if users are dissatisfied with those results, they can try Google or Bing or another of the many and varied means of retrieving information. “Search engine operators (at least in the United States and given today’s technology) lack the physical power to silence anyone’s voices, no matter what their alleged market shares may be,” he wrote.

The judge swatted down the plaintiffs’ arguments that Baidu shouldn’t receive full free speech protection because its search results are a form of commercial speech. Advertisements displayed by a search engine might be considered commercial speech, he said, as might search results that advanced the search engine’s own business. “But that result plainly does not apply to the search results at issue in this case, which relate to matters of public concern and do not themselves propose transactions.” Furman’s phraseology is broad enough to encompass most search engine results.

Baidu’s lead lawyer, Carey Ramos of Quinn Emanuel Urquhart & Sullivan, told me that the judge took seven months to write the opinion, after showing his deep interest in the First Amendment issue. “He wrote an erudite, closely reasoned, compelling decision,” Ramos said. “My speculation is that he wanted to dot the i’s and cross the t’s not only to make sure that it would stand up on appeal, but that it would be broadly accepted.”

Plaintiffs lawyer Preziosi told my Reuters colleague Jon Stempel that he intends to test Furman’s reasoning at the 2nd Circuit Court of Appeals. “The court has laid out a perfect paradox: that it will allow the suppression of free speech, in the name of free speech,” Preziosi said. He also said a search engine is less like a newspaper exercising editorial judgment than “a town square where pretty much anyone can go and say what he wants.”

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