In honor of Flashback Friday, we wrap up the blog week by examining the spring case of Zhang v. Baidu, Inc. and the protection the First Amendment affords the Google of China’s decision to censor information.
Baidu.com is the largest search engine service provider in China and the third largest in the world. When self-described “promoters of democracy in China through their writings, publications and reporting of pro-democracy events” published their materials on the Internet and found them blocked by Baidu.com, they sued, claiming their civil rights were violated.
According to United States District Judge Jesse M. Furman’s decision [PDF], it’s been vigorously debated whether search-engine results constitute speech protected by the First Amendment.
“To date, only two courts have appear to have addressed the question, both concluding (albeit with somewhat sparse analysis) that search-engine results are indeed protected by the First Amendment. See 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). It is therefore a question of first impression in this Circuit.
Although the Supreme Court has not addressed the precise question at issue, its First Amendment jurisprudence all but compels the conclusion that Plaintiffs’ suit must be dismissed.”
Judge Furman used Miami Herald Publishing Co. v. Tornillo and Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston for his analysis.
In the former case, the court found that a Florida statute requiring newspapers to allow political candidates the right to reply critical editorials violated the First Amendment. As the judge cited, the “statute impermissibly infringed the newspaper’s First Amendment right to exercise ‘editorial control and judgment.’”
This principle was reinforced in the latter case in which the court considered whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey.” Judge Furman again cited that the “court held that allowing a state to do so would ‘violate the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’”
Judge Furman concludes:
“In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. 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. As the Supreme Court has explained, ‘[t]he First Amendment does not guarantee that … concepts virtually sacred to our Nation as a whole … will go unquestioned in the marketplace of ideas.’ Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, 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. … Thus, the Court’s decision — that Baidu’s choice not to feature ‘pro-democracy political speech’ is protected by the First Amendment — is itself ‘a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism … is a sign and source of our strength.’”
SO ORDERED, Judge Furman. (About 912,000 results from a Google search for the honorable judge’s name by the way.)