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Summary:

A judge described Baidu’s blocking of Chinese-language pro-democracy sites as an “editorial decision” protected by the First Amendment.

A federal judge in New York this week dismissed a lawsuit over Chinese company Baidu’s decision to block pro-democracy websites from appearing among its list of U.S. search results.

In the decision, which is a rare ruling on the free speech rights of search engines, U.S. District Judge Jesse Furman wrote that he would not award civil rights damages to Chinese-speaking activists over what he termed Baidu’s “editorial decisions.”

In throwing out the case, Furman concluded that it would violate the First Amendment rights of search engines like Baidu or Google if a court told them what content to display:

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 [...]  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.

The Baidu case is significant in part because no U.S. court has ruled on the free speech rights of search since 2007 even though, as the judge notes, the concept of “machine speech” has been a hot topic among legal scholars for years.

In siding with Baidu, the judge cited a Supreme Court case that struck down a law requiring newspapers to provide a “right of reply” to politicians, and another case that upheld Boston parade organizers’ right to exclude gays on First Amendment grounds.

The judge also noted that U.S.-based users of Baidu, which reportedly controls 70 percent of the Chinese-language search market, have access to plenty of other information about democracy in China:

And if a user is dissatisfied with Baidu’s search results, he or she “has access, with just a click of the mouse, to Google, Microsoft’s Bing, Yahoo! Search, and other general-purpose search engines, as well as to almost limitless other means of finding content on the Internet, including specialized search engines, social networks, and mobile apps.”

The quote cited by the judge is by Eugene Volokh, an influential law professor who produced a paper for Google in 2012 as part of the company’s response to an antitrust investigation into its search practices (Google prevailed in the investigation).

Judge Furman’s decision also comes at a time when free speech and freedom of the press issues remain a hot topic in China where the government blocks websites and social media, and has punished media outlets like Bloomberg and the New York Times for publishing stories about corruption and the personal wealth of the ruling elite.

Here’s a marked-up copy of the ruling, which also cites internet law scholars Tim Wu and James Grimmelmann:

Baidu Ruling

  1. we desperately need to STOP applying Constitutional rights to NON-American citizens, and to all parts of the globe. It’s a very arrogant sense of entitlement. This is why people want to crash airplanes into our buildings.

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  2. 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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