‘China’s Google’ invokes 1st Amendment to beat US anti-censorship lawsuit

A US court dismissed a lawsuit against a Chinese internet giant Baidu, which the plaintiff argued blocks material critical of China’s democratic credentials, a decision that could have far-reaching impact on how US search engines sift information.

The lawsuit was brought forward by a group of New York content editors who alleged that Baidu’s search engine was programmed to filter out material in the United States that touches upon the Chinese government’s harsh censorship laws, calling this a violation of the US Constitution.

According to the ruling on Thursday, "Plaintiffs, self-described 'promoters of democracy in China through their writings, publications and reporting of pro-democracy events,' allege that Baidu conspires to prevent 'pro-democracy political speech' from appearing in its search-engine results here in the United States," it read.

US District Judge Jesse Furman in Manhattan disagreed, comparing Baidu’s algorithms to a newspaper’s editorial stance: “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.”

Baidu, with more than 500 million regular users in China and a growing following in the US, is the fifth-most trafficked site in the world, behind Yahoo.com, YouTube, Facebook and Google, according to Alexa, a website traffic monitor.

The court’s decision in favor of the Chinese Internet firm raises the question as to whether the First Amendment protects as “free speech” the search results delivered by US-based Google, for example. Indeed, the ruling sets down a significant legal precedent that gives the leading Internet companies “editorial” powers to present information in such a way that conforms to their political, social and cultural views.

Certainly, the hugely influential search engine companies listed above were hardly disinterested observers to the outcome of the court case.

In 2012, Google commissioned Eugene Volokh, who teaches at UCLA School of Law, to write a White Paper (“First Amendment Protection for Search Engine Search Results"), which lays down the argument that Internet search engine companies are protected by the First Amendment when it comes to delivering their content. In other words, based on such a description, it would seem that “editorial oversight,” as opposed to the marketplace of ideas, per se, is the real driving force behind many search results.

“Once, the leading sources to which people turned for useful information were newspapers, guidebooks, and encyclopedias. Today, these sources also include search engine results, which people use (along with other sources) to learn about news, local institutions, products, services, and many other matters,” Volokh writes. “Then and now, the First Amendment has protected all these forms of speech from government attempts to regulate what they present or how they present it. And this First Amendment protection has applied even when the regulations were motivated by a concern about what some people see as ‘fairness.’”

The plaintiffs were seeking $16 million in damages from Baidu, which opened an English-language site for developers in February 2013, and plan to appeal the court’s decision. Their lawyer Stephen Preziosi said that “the court has laid out a perfect paradox: that it will allow the suppression of free speech, in the name of free speech.”