Overview
In an opinion today, Judge Furman dismissed, on First Amendment grounds, a suit accusing Baidu, a Chinese “search engine akin to Google,” of blocking pro-democracy search results:
[T]here is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation. The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later). In these respects, a “search engine’s editorial judgment is much like many other familiar editorial judgments,” such as the newspaper editor’s judgment of which wire-service stories to run and where to place them in the newspaper, the guidebook writer’s judgments about which attractions to mention and how to display them, and Matt Drudge’s judgments about which stories to link and how prominently to feature them. On that theory of the First Amendment’s protection of search-engine results, the fact that search engines often collect and communicate facts, as opposed to opinions, does not alter the analysis. As the Supreme Court has held, “the creation and dissemination of information are speech within the meaning of the First Amendment. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011). Nor does the fact that search-engine results may be produced algorithmically matter for the analysis. After all, the algorithms themselves were written by human beings, and they “inherently incorporate the search engine company engineers’ judgments about what material users are most likely to find responsive to their queries.”Judge Furman ruled that he “need not resolve the scholarly debate” as to the exact degree of protection afforded search engine results generally, because the case against Baudu involved clear political expression, i.e., the plaintiffs sought “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.” Allowing a challenge to that conduct 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.”
