Baidu's Political Censorship is Protected by First Amendment, but Raises Broader Issues

Baidu, the operator of China’s most popular search engine, has won the dismissal of a United States lawsuit brought by pro-democracy activists who claimed that the company violated their civil rights by preventing their writings from appearing in search results. In the most thorough and persuasive opinion on the issue of search engine bias to date, a federal court ruled that the First Amendment protects the editorial judgments of search engines, even when they censor political speech. This post will introduce the debate over search engine bias and the First Amendment, analyze the recent decision in Zhang v. Baidu, and discuss the implications of the case for both online speech and search engines.

Search Engine Bias and the First Amendment

When users enter a query into a search engine, the search engine returns results ranked and arranged by an algorithm. The complicated algorithms that power search engines are designed by engineers and modified over time. These algorithms, which are proprietary and unique to each search engine, favor certain websites and types of content over others. This is known as “search engine bias.”

The question of whether search engine results constitute speech protected by the First Amendment is particularly important in the context of search engine bias, and has been the subject of considerable academic debate. Several prominent scholars (including Eric Goldman, Eugene Volokh, and Stuart M. Benjamin) have argued that the First Amendment encompasses results generated by search engines, thus largely immunizing the operators search engines from liability for how they rank websites in search results. Others (primarily Tim Wu) have maintained that because search engine results are automated by algorithm, they should not be granted the full protection of the First Amendment.

Until now, only two federal courts had addressed this issue. See Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007); Kinderstart v. Google, 2007 WL 831806 (N.D. Cal. 2007). In dismissing claims against Google, Microsoft, and Yahoo brought by private plaintiffs dissatisfied with how their websites ranked in search results, both courts concluded after limited analysis that search engine results are protected under the First Amendment.

Baidu in Court

In May 2011, eight Chinese-American activists who described themselves as “promoters of democracy in China” filed a complaint against Baidu in the United States District Court for the Southern District of New York. The plaintiffs, who are residents of New York, alleged that Baidu had violated their First Amendment and equal protection rights by “censoring and blocking” the pro-democracy content they had published online from its search results, purportedly at the behest of the People’s Republic of China. While the plaintiffs’ content appeared in results generated by Google, Yahoo, and Bing, it was allegedly “banned from any search performed on … Baidu.”

Baidu responded by filing a motion for judgment on the pleadings. Baidu argued that the plaintiffs’ suit should be dismissed based on the longstanding principle that the First Amendment “prohibits the government from compelling persons to speak or publish others’ speech.” Baidu also accused the plaintiffs of bringing a meritless lawsuit “for the purpose of drawing attention to their views.”

Last month, United States District Judge Jesse M. Furman concluded in a thoughtful decision that that the results returned by Baidu’s search engine constituted speech protected by the First Amendment, dismissing the plaintiffs’ lawsuit in its entirety.

Judge Furman began his analysis with a discussion of Miami Herald Publishing Co. v. Tornillo, a 1974 decision in which the Supreme Court held that a Florida statute requiring newspapers to provide political candidates with a right of reply to editorials critical of them violated the First Amendment. B