This case goes back a few years. Some activist types in New York filed a federal suit against Baidu because their propaganda political speech did not pop up in search results. Claimants said that Baidu had violated their right to free speech.

At the time, I responded with a rant, “Baidu vs. NYC Dissidents: Why This Case Sucks.” The title speaks for itself, but basically my opinion was that this case would be dropped like a hot brick by the judge (easy call), and indeed it has been. I followed this up with “Baidu vs. NYC Dissidents: A Cranky Postscript,” after I read the decision, at which time I added “My goodness, that’s utter shit.”

The case was kicked on procedural grounds almost exactly one year ago, and I thought at that time it was all over. I was wrong, and somehow the plaintiffs were able to overcome the service of process defects — hey, I’m no litigator.

So it went back to federal court . . . and the judge dropped it on substantive grounds this time. But in doing so, the judge apparently justified his actions on the grounds of Baidu’s right to free speech in curating search results.

I’m mighty confused.

OK, disclaimer first. I’m dealing with the end of Q1 at the moment (translation: work is kicking my ass), so I had no time to be responsible and read what the judge had to say or do even a wee bit of research on this topic. In other words, what follows is stream of consciousness opinion that I’m pulling out of my ass as I go along. If that doesn’t discourage you, let’s continue.

Here’ the background from Reuters:

Eight New York writers and video producers had accused Baidu of creating search engine algorithms, at the behest of China, to block users in the United States from viewing articles, videos and other information advocating greater democracy in China.

The plaintiffs said this kept Baidu users from seeing their work, unlike users of other search engines such as Google and Microsoft’s Bing. They sought $16 million in damages for violations of their civil and equal protection rights.

U.S. District Judge Jesse Furman in Manhattan, however, concluded that the results produced by Baidu’s search engine constituted protected free speech under the U.S. Constitution, warranting dismissal of the May 2011 lawsuit.

“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,” the judge wrote.

Furman likened a search engine’s “editorial judgment” to that of a newspaper editor who decides which stories to publish.

{scratching head} – I doesn’t get it. Myself’s lawyer grey matter be overtaxed these days.

Correct me if I’m wrong here, but isn’t the judge playing right into the plaintiff’s propagandistic hands by saying that Baidu is advocating for a certain system of government? That’s ridiculous and, if I’m Baidu, kind of offensive. C’mon judgie, biased much?

This is a private company that provides web search results to users based on proprietary algorithms. There are many ways to index web content via different algorithms, the use of which is a business decision.

But no, says the judge, because the content of these writers does not show up in search results, Baidu is engaging in political speech. Bollocks. If a search engine filters out porn because it is owned by religious folks, is it making use of the free exercise clause of the First Amendment?

I like the result of the case, but the judge had no business talking about Baidu’s speech here. The plaintiffs simply have no right to call the shots when it comes to search engine web indexing. I sincerely hope that this decision does not open the door to other knuckleheads who want to make a similar argument in the future.


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