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May 2014: First Amendment Victory for Chinese Internet Search Engine

May 2014

Quinn Emanuel has secured a major First Amendment victory for its client Baidu, Inc. In a case of significant importance for internet search engines and media companies worldwide, Quinn Emanuel persuaded the United States District Court for the Southern District of New York that the First Amendment bars an action seeking to hold its client Baidu—the most popular internet search service in China—liable for the order and content of results returned on its search engine. Plaintiffs—eight Chinese individuals living in the United States—claimed that Baidu violated various U.S. civil rights laws by allegedly preventing its search engine from returning results linking to plaintiffs’ works advocating political change in China.

Plaintiffs’ complaint asserted eight causes of action against Baidu including alleged violations of 42 U.S.C. §§ 1981, 1983, and 1985, asserting that Baidu’s purported failure to return search results linking to plaintiffs’ works infringed upon plaintiffs’ freedom of speech. The other five causes of action asserted violations of New York state and local laws—alleging that the website is a “place of public accommodation” that discriminates against plaintiffs on the basis of their purported political beliefs. Plaintiffs sought $16 million in damages.

Baidu moved for judgment on the pleadings. The court granted Baidu’s motion in a carefully reasoned and scholarly opinion holding that the First Amendment barred plaintiffs’ action because it sought in effect to have a U.S. court sanction a private party for allegedly declining to publish the political advocacy of another party.

As a threshold matter, the court recognized that plaintiffs’ suit raised the question of “whether the First Amendment protects as speech the results produced by an Internet search engine.” Although the court declined to decide that question categorically, it held that “at least in the circumstances presented here, it does” since “allowing Plaintiffs to sue Baidu for what are in essence editorial judgments about which political ideas to promote would run afoul of the First Amendment.”

Citing U.S. Supreme Court authority on compelled speech, the court recognized the right of internet search engine services to “exercise editorial control” over the order and content of the search results they return—declaring that there “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.” Indeed, to the extent that search engines exercise editorial control over their search results, the court determined that the First Amendment “plainly shields” those determinations. The Court therefore rejected plaintiffs’ attempt to “enlist the government—through the exercise of this Court’s powers—to impose ‘a penalty on the basis of the content’ of Baidu’s speech,” since allowing them to do so “would ‘inescapably dampen the vigor and limit the variety of public debate.’”

The court further held that sanctioning Baidu, as plaintiffs sought, for allegedly “design[ing] its search-engine algorithms to favor certain expression on core political subjects over other expression on those same political subjects” 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,’” and that punishing Baidu for editorial judgments “would contravene the principle upon which ‘our political system and cultural life rest’: ‘that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.’”

Whether Baidu chooses “to disfavor speech concerning democracy”—as plaintiffs alleged—was immaterial, the court declared, since “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.” Indeed, the court recognized that its dismissal of the case “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.’”