Content Regulation / Censorship, Defamation / Reputation, Licensing / Media Regulation
Editorial Río Negro S.A. v. Neuquén
Closed Expands Expression
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A Judge agreed with Google that “search results [are] protected by the First Amendment and [cannot] be penalized” in spite of claims that Google “monopolizes the search-engine business, [causing] grievous harm to CoastNews.com,” a San Francisco-based web publication. US News reported that on November 13, 2014 in the case of S. Louis Martin v. Google, Inc., that Judge Ernest J. Goldsmith (San Francisco Superior Court in California) granted Google’s Special Motion to Strike the lawsuit.
US News also offered these comments regarding Google’s challenges in the EU:
“The problem faced by Google is that the First Amendment does not exist in European nations. Goldsmith’s decision shows the stark contrast between legal views of Google and search engines like Yahoo in not just the European Union but other nations like Japan and Australia where the tech company has lost cases that determined its search results were defamatory or violated privacy rights.”
On June 17, 2014, Plaintiff Dr. S. Louis Martin, the publisher of a website, CoastNews.com, filed a self-represented lawsuit against Google, alleging three “violations” of California antitrust law and requesting $5 million in compensatory and punitive damages.
According to the Complaint, Google essentially punished Martin and CoastNews.com for publishing an article about a “popular nudist colony in the Santa Cruz mountains[.]” Google allegedly warned Martin to remove the allegedly pornographic material within three days, but even after Martin did so, the website still suffered consequences. Specifically, CoastNews.com was removed as a “top result” from Google search results, Google stopped delivering third-party ads to the website, and, as a result of the non-delivery of advertisements, the website was “marred aesthetically,” which Martin characterized as “wanton destruction of business property.”
Martin further asserted that the consequences CoastNews.com suffered were part of a larger, Google-backed plan to “sanitize” the Internet. Google was, according to Martin, censoring any Internet content involving, for example, pregnancy, sex, and even massages. Martin also alleged that the appeals process regarding the removal of advertisements from his website was blatantly unfair and that his appeal was denied before it was even filed.
The court only granted Google’s Proposed Order without substantiating the decision with legal or factual authority. In doing so, the court made two important findings. First, the court found that the violations Martin alleged actually concerned Google’s freedom of speech, a “constitutionally protected activity.” Second, the court held that after Google filed its motion to dismiss this matter, Martin failed to produce “evidence supporting a probability of success” which would have defeated Google motion.
In granting Google’s Proposed Order, the court implicitly adopted the legal reasoning contained in Google’s Motion to Strike Plaintiff’s Complaint. There, Google argued that its “search result order and ad placement options” are protected by the United States Constitution. Google analogized the facts in this case to another California decision in which the California Supreme Court held that an author could not sue the New York Times after his book was excluded from the bestseller list because the list itself was a protected expression under the First Amendment. In this matter, the way in which Google lists its results merely constituted an “opinion” as to “which websites are most likely to be helpful to the user in response to a query[.]” Thus, even though Martin characterized his lawsuit as one under California antitrust law, the true “thrust” of the complaint concerned Google’s freedom of speech.
Since Martin’s lawsuit attacked Google’s constitutionally-protected rights, Google also argued that Martin could not establish that he has a “probability of success on the merits” should his lawsuit proceed to trial. In order to survive Google’s motion, Martin had to establish facts which would indicate that his lawsuit was not merely a “strategic lawsuit against public participation,” or SLAPP action. The court agreed with Google, essentially adopting Google’s argument that Martin could not “offer any evidence” that would have overcome Google’s discretionary right to order its search results and strategically place third-party ads.
In the motion, Google also noted that at least two of Martin’s allegations in the complaint were false. First, the FTC did not, in fact, find that Google violated antitrust law by favoring certain websites over others. Second, Google did not arbitrarily refuse to place ads on CoastNews.com pages containing nudity since the AdSense Terms and Conditions to which Martin consented prohibit the placement of ads in pages containing nudity.
Again, although not expressly stated in the court’s order, the court presumably adopted the legal authority and reasoning summarized in Google’s motion and supporting memorandum in eventually dismissing Martin’s lawsuit.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
A growing body of American jurisprudence, including this case, has expanded the First Amendment protection of freedom of speech and what constitutes a protected “opinion.” Opinion, for example, need not be limited to criticism of a public official or a review of an artistic performance. Instead, even automated procedures such as the production of search results or the placement of an Internet advertisement can constitute an “opinion.” Just as the New York Times’ publication of its best seller list was an opinion — as opposed to a statement of fact regarding national book sales — the order in which Google published search results merely constituted an advisory “opinion” on how a search user might best go about having his or her query answered. The concept that the Constitution can protect the opinions of a “robot” has been roundly criticized, but there is no doubt that cases such as S. Louis Martin v. Google certainly expand expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Because the motion upon which the court relied contained references to cases outside of California state court jurisdiction, this opinion could be used in other jurisdictions where the ordering of search results or placement of electronic advertisements is at issue in a lawsuit.
Let us know if you notice errors or if the case analysis needs revision.