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: