Opinion

Alison Frankel

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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This comment was previously posted elsewhere, but it’s fitting that I share it here so here it goes.

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Yet another step towards codifying bad policy. For the sake of this discussion this commentary assumes that this decision is as it has been presented in this, and other, articles. Having not fully researched the matter I realize that there could conceivably be more to it…but for multiple reasons I doubt that is the case. Having stated all that it must be stated that this brings to mind the recent stories and public outcry about the assault on net neutrality. The ability for search engines to arbitrarily censor search results should in no way be allowed. It doesn’t take much imagination to see how that could be horribly abused. To illustrate my point I’ll borrow from posts that I placed online in regards to the net neutrality issue and adapt them to fit the “Pandora’s box” that this decision will open should it not be promptly reversed. So here goes the slightly adjusted excerpt.

SLIGHTLY ADJUSTED EXCERPT

Unfortunately people who (a) haven’t been subjected to wrongful stifling, (b) haven’t learned the dangers of limitations on free speech by studying history, and/or (c) aren’t critical thinkers might not see the potential dangers in this type of decision until it is too late. This should be reversed posthaste…and I don’t state that on a whim. History is full of bad acting influential entities that have abused power that they should have never had in the first place. Assume, as practically all experienced web surfers know, that a significant amount of web traffic is generated by surfers who use search engines as opposed to navigating to websites directly by manually typing urls in their web browser. Now think about these couple of scenarios:

1) A startup launches and its success is highly dependent on its ability to deliver various web content to the masses. However, a direct competitor owns and/or operates one or more search engines (or is an associate of an entity that owns and/or operates one or more search engines). No problem…just have the startup’s online content removed from search results or artificially hidden within search results. It goes without saying that web surfers who aren’t already aware of the startup’s online content won’t find the content (or in the case that the content is merely hidden, likely won’t find the content). BUSINESS – IS – TOUGH. That being the case it is a foregone conclusion that a startup that is subjected to having its content removed from search results, or artificially hidden within search results, will fail if web content plays a significant role in its business model.

2) A group is fighting against influential wrongdoers and the group is effectively and rightfully utilizing the internet during the course of their warranted and rightful battle. However, one or more of the wrongdoers owns and/or operates one or more search engines (or is an associate of an entity that owns and/or operates one or more search engines). No problem…just have the group’s online content removed from search results or artificially hidden within search results. Again, it goes without saying that web surfers who aren’t already aware of the group’s online content won’t find the content (or in the case that the content is merely hidden, likely won’t find the content). FIGHTING – INFLUENTIAL – WRONGDOERS – IS – TOUGH. That being the case it is a foregone conclusion that a movement against wrongdoers that is subjected to having its content removed from search results, or artificially hidden within search results, will fail if web content plays a significant role in the movement.

Those who have a problem visualizing the scenario outlined immediately above need do nothing more than look at corruption-plagued countries that are built upon cultures where censorship is par for the course. Of the many things that this decision might give way to, one of the things that it will definitely give way to is inappropriate (and likely rampant) censorship. I’ll repeat that so that it will sink in…IT WILL GIVE WAY TO INAPPROPRIATE (AND LIKELY RAMPANT) CENSORSHIP.

There are probably multiple other scenarios that could be listed above but the given scenarios are sufficient to make my point. Again, as the decision is expressed in various articles the decision is not right and IT SHOULD BE REVERSED POSTHASTE.

Although some things are right about America, some things are definitely going in the wrong direction. People such as Hitler, those who conducted the Tuskegee Experiment, and those whom were responsible for disseminating smallpox infested blankets to Native American Indians (just to name a few) would have a heyday with this decision if they were alive and engaging in their bad acts today. Reason being, it goes without saying that as it stands the internet is the average joe’s most efficient form of a mouthpiece. And let us not forget that in America (as well as in the rest of the world) some of the greatest achievements have been accomplished by determined average joes who spoke out to the masses as efficiently as was possible. Rest assured that this decision (should it stand) will make influential bad actors everywhere rejoice…they are likely already planning ways to exploit it (assuming that they haven’t already planned a plethora ways).

In case anyone somehow thinks that I have no idea what I’m talking about. I will state that I most certainly do. I am personally involved in a long-running, massive, warranted, and rightful fight against epic public corruption. I can tell you that it is an undeniable fact that that warranted and rightful fight has been plagued by civil liberties infringements carried out via wrongful attempts by bad actors to stifle our free speech. For the record the fight is called GATORGAIT and those who are unaware of it can find out more information at the damning, truthful, and lawful website gatorgait-dot-com . Also for the record, the website is in various search engines as of the time of this post (i.e. 03/29/2014). Additionally, there has been various other truthful and lawful Gatorgait-related content that has been posted online by us justice seekers and which has remained not interfered with…that content is also in various search engines as of the time of this post.

Generally speaking I have lost faith in man’s ability to consistently do what’s right. Over hundreds of years of bad practices and policies promulgated largely by those who have wrongfully and shortsightedly used their gift of intelligence to increase their power and “line their pockets” at the long term expense of mankind and the world we have, as a whole, lost our way. Let’s see where this recent decision takes us. Just as we opposed the most recent attempt to pass the far too intrusive CISPA (and the more recent net neutrality move) we strongly oppose the decision as expressed in this article. Pay attention…close attention. As indicated above I’m jaded; therefore, I have no confidence that if there isn’t an abrupt about face that bad acting men and women won’t ensure that action becomes warranted. It may be soon or it may be later, but rest assured that serious action will become necessary.

END EXCERPT

Having stated all the above it must be stated that this looming “free reign of search engine censorship” would even be problematic if we lived in a society that brimmed with search engine competition. But we don’t live in a society brimming with search engine competition. It is a fact that Google and Bing power practically all of the major English search engines. Before anyone disputes that fact take note that I stated PRACTICALLY. Those who don’t know that fact about Google and Bing’s U.S. market domination just need to do a little research. If a small player in the search engine industry was arbitrarily censoring search results that would be problematic. It’s exponentially worse when the market leaders do it. For more insight on the previous sentence I suggest that you borrow from principles of antitrust law. Because in the “world of antitrust” it’s well known that when you’re a small player you might be able to get away with some questionable business practices…at least for a little while. But when you’re a market leader, for various reasons—reasons that include the tremendous advantage you enjoy as a market leader (a practically insurmountable advantage)—the “bar is higher”. Addressing domestic operations only in this post; neither Google, Bing, nor any other American search engine (or any foreign-headquartered search engines with hardware on American soil and conducting business in America) should be engaged in the practice of arbitrary censorship.

If this decision sets a precedent is anyone naïve enough to think that if the government does “persuade” a search engine to censor search results that the search engine operator, when confronted, wouldn’t likely just falsely take the stance that “we just censored your online content on a whim…sucks for you but that’s our choice”? With this decision as precedent that’s likely precisely the stance that they would falsely take if the aggrieved party is amongst the ranks of private citizens…unless of course that party is of the stature of say Bill Gates or some other exceedingly powerful individual. And how many people fit that category? ANSWER: Almost none. This decision in effect will allow all search engine censorship. And there’s no denying that that is ripe for abuse. Again, the decision as it is expressed in this article should be reversed posthaste. Any significant rewards this decision could conceivably bring about (not that we’re necessarily of the mindset that there are any) would be far outweighed by the very real risks. Sadly we already live in a world where agenda-driven elitists control nearly all information flow as they run the world “to #ell in a handbasket”. Assuming you didn’t encounter illicit roadblocks in the broadcast world as well, how many of you can afford to go out and buy airtime on the radio or on a tv station (or for that matter print in a highly circulated publication) to efficiently further your objective? Most people probably can’t afford to exercise those options. Does America really want to give the aforementioned elitists total reign over the internet (one of the last bastions of freedom and equality)? Methinks not. As for me; excluding conclusively illegal online content, I can decide what I want to look at for myself and I don’t need any search engine operators protecting my eyes.

Best wishes to all,
SB

“Some people see a problem and do something about it. Others do nothing but sit on their a$$e$ and complain. Be a doer.”

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