My Article on What Happens if Data is Speech Cited by S.D.N.Y. In First Amendment Speech Case

March 28th, 2014

My article, What Happens if Data is Speech?, was cited in Zhang v. Baidu, Inc. (S.D.N.Y. Mar. 27, 2014).

In this case, the plaintiff alleged that Chinese search engine Baidu ” unlawfully blocks from its search results here in the United States articles and other information concerning ‘the Democracy movement in China’ and related topics.” The Court held that Baidu’s search results were protected by the First Amendment.

Here is the core of the Court’s analysis:

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….

[Plaintiffs] they seek 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. To allow such a suit to proceed would plainly “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”

[Footnote:] That Plaintiffs allege that Baidu exercises editorial judgment “in cooperation with and according to the policies and regulations of” China makes no difference to the analysis. Plaintiffs allege that Baidu “purposely designs its systems and search engines to exclude” specific content. Whether it does so at the behest, or in furtherance of the interests, of China does not bear on the nature or extent of Baidu’s First Amendment rights….

There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that … concepts virtually sacred to our Nation as a whole … will go unquestioned in the marketplace of ideas.” For that reason, 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, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Along the way, the court cites my article, as well as several other leading pieces in the field.

The question of whether search-engine results constitute speech protected by the First Amendment has been the subject of vigorous academic debate. See, e.g., James Grimmelmann, Speech Engines, 98 Minn. L. Rev. 868 (2014); Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013); Tim Wu, Machine Speech, 161 U. Pa. L. Rev. 1495 (2013); Michael J. Ballanco, Comment, Searching for the First Amendment: An Inquisitive Free Speech Approach to Search Engine Rankings, 24 Geo. Mason U. C.R. L.J. 89 (2013); Eugene Volokh & Donald M. Falk, Google First Amendment Protection for Search Engine Search Results, 8 J.L. Econ. & Pol’y 883 (2012); Oren Bracha & Frank Pasquale, Federal Search Commission? Access, Fairness, and Accountability in the Law of Search, 93 Cornell L. Rev. 1149 (2008); Josh Blackman, What Happens if Data Is Speech?, 16 U. Pa. J. Const. L. Online 25 (2014). By contrast, it has garnered relatively little attention from courts. To date, only two courts appear to have addressed the question, both concluding (albeit with somewhat sparse analysis) that search- engine results are indeed protected by the First Amendment. See Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568 (W.D. Okla. May 27, 2003).3 It is therefore a question of first impression in this Circuit.

And even better, the court FAULTS the search engine for not citing any of our work. Harumph!

Curiously, Baidu cites neither these decisions nor the scholarship referenced above.

The court seems to have accepted the arguments of Eugene Volokh, almost in their entirety. You’ll recall that Eugene wrote this paper as a commissioned white paper for Google, which was then published in the George Mason Journal of Law Economics & Policy.

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); see also Volokh & Falk, supra, at 889-90 (noting that the First Amendment “protects the collection and communication of facts as much as it protects opinions, including facts that are not ideologically laden — such as names of crime victims in three-sentence crime reports, names of accused juvenile offenders, lists of bestselling books, lists of tenants who had been evicted by local landlords, information in a mushroom encyclopedia, recipes in a cookbook, and computer program source code” (citing cases)). 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.” Volokh & Falk, supra, at 884; see also id. at 888-90; Benjamin, supra, at 1470. In short, one could forcefully argue that “what is true for parades and newspaper op-ed pages is at least as true for search engine output. When search engines select and arrange others’ materials, and add the all-important ordering that causes some materials to be displayed first and others last, they are engaging in fully protected First Amendment expression — ‘[t]he presentation of an edited compilation of speech generated by other persons.’” Volokh & Falk, supra, at 891 (quoting Hurley, 515 U.S. at 570).

The Court also notes that since there are other search engines, this blockage is not constitutionally troublesome.

And if a user is dissatisfied with Baidu’s search results, he or she “has access, with just a click of the mouse, to Google, Microsoft’s Bing, Yahoo! Search, and other general-purpose search engines, as well as to almost limitless other means of finding content on the Internet, including specialized search engines, social networks, and mobile apps.” Volokh & Falk, supra, at 898. In fact, Plaintiffs themselves acknowledge that their pro-democracy works are widely available to the public on the Internet “via any of the well known [sic] search engines such as Google, Yahoo[,] and Bing.” (

Though, the court did cite the work of Oren Bracha and Frank Pasquale, with whom I am sympathetic about whether these conduits are truly neutral.

In contrast to that robust theory of the First Amendment in this context, some scholars have relied on the Supreme Court’s decision in Turner — which Plaintiffs here do not cite — to advocate for a lower level of protection of search-engine results. See, e.g., Bracha & Pasquale, supra, at 1191-94 . . . .

As discussed below, whether any search engine is — or can be — the neutral conduit of information that Bracha and Pasquale describe is open to question, see, e.g., Benjamin, supra, at 1469-70, 1485-86; Volokh & Falk, supra, at 898-99, but it need not be addressed here.

This will likely become the definitive statement of the law. And you can be sure Google will cite this if and when the FTC tries to regulate their search results. The court alluded to possible Antitrust challenges:

Given the allegations in this case, there is also no need to address whether laws of general applicability, such as antitrust laws, can be applied to search engines without implicating the First Amendment. Compare Benjamin, supra, at 1482, 1487-92, with Volokh & Falk, supra, at 895-99. Nor is there any need to address whether a search engine could be held liable for false statements concerning its methodology or search results

Further, the court expressly rejects that search results are commercial speech:

Commercial speech, however, is defined as “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980) (emphasis added); see also United States v. United Foods, Inc., 533 U.S. 405, 409 (2001) (stating that commercial speech is “usually defined as speech that does no more than propose a commercial transaction”). That definition would presumably apply to advertisements displayed by a search engine, and might even apply to “search results shown to purposefully advance an internal commercial interest of the search provider.” Ballanco, supra, at 90 (arguing that such results “should be classified as commercial speech and, therefore, subject to less First Amendment protection”); see also Volokh & Falk, supra, at 885 (implicitly acknowledging that paid advertisements may be entitled to less protection under the First Amendment than “search results for which no payment has been made”). But that definition plainly does not apply to the search results at issue in this case, which relate to matters of public concern and do not themselves propose transactions.

H/T Eugene Volokh

Zhang v. Baidu, Inc. (S.D.N.Y. Mar. 27, 2014).