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Zhang v. Baidu.com, Inc.

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    March 27, 2014
  • Outcome
    Dismissed
  • Case Number
    932 F.Supp.2d 561
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law
  • Themes
    Content Regulation / Censorship, Political Expression
  • Tags
    Internet, On-line Expression

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Case Analysis

Case Summary and Outcome

New York residents sued one of China’s largest companies, Baidu.com, Inc., for blocking articles and other information regarding the democracy movement in China from its search results in the United States. Baidu is the largest internet search engine in China. The judge concluded that the Baidu algorithm, which removes certain search results, was in essence an editorial judgment about which political ideas to promote. The judge ruled that Baidu had a First Amendment right to skew search results for political reasons.


Facts

This case involves a dispute between Jian Zhang, et al., members of a group that attempts to become “promotors of democracy in China through their writings, publications and reporting of pro-democracy events” and Baidu.com, an internet search engine akin to Google. The plaintiffs allege that the search engine blocks pro-democracy political speech from appearing in the United States at the request of the People’s Republic of China (who was named in the complaint and then never served, and thus, is no longer a party to the case). The plaintiffs have published articles, etc. on the internet which show up on search engines such as Google but are blocked on Baidu. The plaintiffs brought eight separate claims on these facts: “(1) conspiracy to violate their civil rights, pursuant to 42 U.S.C. § 1985; (2) violation of their civil rights on the basis of race, pursuant to 42 U.S.C. § 1981; (3) violation of their civil rights under color of state law, pursuant to 42 U.S.C. § 1983; (4–7) denial of their right to equal public accommodations, in violation of New York Civil Rights Law §§ 40 and 40-c, New York Executive Law § 296(2), and New York City Administrative Code § 8-107(4)(a); and (8) denial of the equal protection of the laws guaranteed by New York Constitution Article 1, § 11.”


Decision Overview

The Court noted that although the issue of whether search engine results constitute speech has been an area of much debate, only twice have the courts considered this issue and each time have afforded first amendment protection to search engine results. First, the Court noted that the government may not interfere with the content of private writers on matters of public concern. Second, the Court explained this rule is not restricted to the press but afforded to all individuals. Third, the Court stated that “the First Amendment’s protections apply whether or not a speaker articulates, or even has, a coherent or precise message, and whether or not the speaker generated the underlying content in the first place.” Finally, it was noted that the noble intentions of the government are irrelevant. Therefore, the first amendment protects search engines from civil liability and government regulation because search engines utilize a certain level of editorial judgment in deciding what information to publish and therefore is much like any other editor of information.

The Court did not decide the scope of the first amendment’s protection for search engines, nor whether all search engines are shielded from lawsuits because the instant case is clear regarding Baidu’s liability. The plaintiffs “seek to hold Baidu liable for, and thus punish Baidu for, a conscious decision to design its search-engine algorithms to favor certain expression on core political subjects over other expression on those same political subjects. To allow such a suit to proceed would plainly ‘violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Therefore, the Court dismissed the lawsuit because Baidu has a right to control the content of their search engine. If users do not like the results that Baidu displays they can simply do a search on Google. Baidu is not prohibiting the United States from accessing this information, just choosing which information it wishes to transmit.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

On the one hand, Internet search engines can choose the content they wish to have displayed in their results and cannot be subject for civil liability for refusing to put certain information in the search results. On the other hand, millions of users are unable to receive certain information critical of China because of Baidu’s practices.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974)

    “[A] Florida statute requiring newspapers to provide political candidates with a right of reply to editorials critical of them violated the First Amendment.”

  • U.S., Langdon v. Google, Inc. 474 F. Supp. 2d 622 (D. Del. 2007)

    Concluded that search engine results are speech protected by the first amendment.

  • U.S., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995)

    Ruling that Massachusetts could not require private citizens organizing a parade to include views they did not support. This would violate the freedom of the first amendment to choose the content of your message.

  • U.S., Snyder v. Phelps, 562 U.S. 443 (2011)

    “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

  • U.S., Zalewska v. Cnty. of Sullivan, 316 F.3d 314 (2d Cir. 2002)

    “To be sufficiently imbued with communicative elements [to warrant protection under the First Amendment], an activity need not necessarily embody a narrow, succinctly articulable message, but the reviewing court must find, at the very least, an intent to convey a particularized message along with a great likelihood that the message will be understood by those viewing it.”

  • U.S., Turner Broadcasting Sys. Inc. v. FCC, 512 U.S. 622 (1994)

    Although the Court found that cable operators by exercising editorial discretion over which shows to air engage in speech protected by the first amendment, an intermediate level of scrutiny was the proper standard of review. The Court noted that the operators were conduits for others speech, had the ability to shut out some users, and the regulations were content neutral.

  • U.S., Dongguk Univ. v. Yale Univ., 734 F.3d 113 (2013)

    “[H]eightened First Amendment protections apply to any tort alleging reputational harm as long as the underlying speech relates to a matter of public concern.”

General Law Notes

Case Names: Langdon v. Google, Inc., 474
F. Supp. 2d 622 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M,
2003 WL 21464568 (W.D. Okla. May 27, 2003).
Notes: Both concluded that search engine results are speech protected by the first amendment.

Case Name: Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).
Notes: “a Florida statute requiring newspapers to provide political candidates with a right of reply to editorials critical of them violated the First Amendment.”

Case Name: Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995).
Notes: Ruling that Massachusetts could not require private citizens organizing a parade to include views they did not support. This would violate the freedom of the first amendment to choose the content of your message.

Case Name: Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).
Notes: “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

Case Name: Zalewska v. Cnty. of Sullivan, N.Y., 316 F.3d 314, 319.
Notes: “To be sufficiently imbued with communicative elements [to warrant protection under the First Amendment], an activity need not necessarily embody a
narrow, succinctly articulable message, but the reviewing court must find, at the very least, an
intent to convey a particularized message along with a great likelihood that the message will be
understood by those viewing it.”

Case Name: Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 653 (1994).
Notes: Although the Court found that cable operators by exercising editorial discretion over which shows to air engage in speech protected by the first amendment, an intermediate level of scrutiny was the proper standard of review. The Court noted that the operators were conduits for others speech, had the ability to shut out some users, and the regulations were content neutral.

Case Name: Dongguk Univ. v. Yale Univ., 734 F.3d
113, 129 (2d Cir. 2013).
Notes: “heightened First Amendment protections apply to any tort alleging reputational harm as long as the underlying speech relates to a matter of public
concern.”

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

The decision was cited in:

Official Case Documents

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