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.