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Following from my previous post of the SDNY opinion holding that search results are protected speech, which cited my article What Happens if Data is Speech, there is additional coverage.

Alison Frankel has the scoop:

U.S. District Judge Jesse Furman of Manhattan grabbed the chance Thursday to set precedent on a question that has received surprisingly little attention in the courts: Does the First Amendment’s protection of free speech extend to the results of Internet searches? Furman was clearly captivated by the issue as an intellectual challenge, delving into the vigorous academic discussion of the First Amendment and Internet search even deeper than the two sides in the case, the Chinese search engine Baidu and the activists who sued the site for supposedly violating their civil rights by blocking their pro-democracy works from appearing in search results. In a supersmart opinion that Furman seems to have written to be widely read, the judge concluded that when search engines exercise editorial judgment – even if that judgment is just algorithms that determine how results will be listed – they are entitled to free speech protection.

Alison noted how the court relied heavily on the works of Eugene Volokh, Donald Falk, as well as another article by Oren Bracha and Frank Pasquale (though he was more convinced by the former than the latter).

 In particular, Furman seems to have been guided by a 2012 piece by Eugene Volokh and Donald Falk, “Google First Amendment Protection for Search Engine Results,” which, among many other points, notes that search engine algorithms “inherently incorporate the search engine engineers’ judgments about what material users are most likely to find responsive.”

Furman also examined a contrary theory suggested by Oren Bracha and Frank Pasquale in a 2008 Cornell Law Review article – that under the Supreme Court’s 1994 ruling in Turner Broadcasting System v. FCC, search engine results are not entitled to full free speech protections. (The Bracha paper actually addressed whether the government ought to be able to regulate search engines, not the issue in the Baidu case, and concluded that the First Amendment does not shield search engines from regulation because under Turner, private interests with quasi-monopoly control cannot impede the free flow of information.) Though Furman said he didn’t need to resolve the scholarly debate, he also said that the Turner precedent is inapt because (among other things) no search engine has monopolistic control over information on the Internet. Baidu can block results on its site, Furman said, but if users are dissatisfied with those results, they can try Google or Bing or another of the many and varied means of retrieving information. “Search engine operators (at least in the United States and given today’s technology) lack the physical power to silence anyone’s voices, no matter what their alleged market shares may be,” he wrote.

The judge spent 7 months researching this opinion. His opinion was really well-thought out.

Baidu’s lead lawyer, Carey Ramos of Quinn Emanuel Urquhart & Sullivan, told me that the judge took seven months to write the opinion, after showing his deep interest in the First Amendment issue. “He wrote an erudite, closely reasoned, compelling decision,” Ramos said. “My speculation is that he wanted to dot the i’s and cross the t’s not only to make sure that it would stand up on appeal, but that it would be broadly accepted.”

More coverage from Forbes, WSJ, Vulture, Engadget,  Reuters, and others.

Interestingly enough, the plaintiff makes an important point:

Stephen Preziosi, the lawyer for the plaintiffs, said that they planned to appeal the ruling.

“The court has laid out a perfect paradox: That it will allow the suppression of free speech, in the name of free speech,” he told Reuters.

Protecting search engines, which have no requirement to fairly index case-law, will lead to hiding more speech. This is not limited to Baidu, but can apply, albeit form commercial not political lenses, to Google.

As an aside, it feels so good to write about my scholarly pursuits that are not about Obamacare. Trust me, I do other things too 🙂

First, the ABA Journal picked up my post about Judge Posner’s “Article III fashion show.”

Wisconsin Appellate Law and Josh Blackman’s Blog have coverage of the videotaped experiment, dubbed an “Article III fashion show” in the critical blog post by Blackman, an assistant law professor at South Texas College of Law. The Appellate Daily had an early report of the opinion on Twitter.

Second, the ABA Journal dug up a post I wrote a month ago about my difficulty of teaching Kelo.

Last month, Josh Blackman, who teaches constitutional law and property at South Texas College of Law, wrote at his eponymous bloglast month how he has trouble teaching Kelo v. City of New London.

Blackman wrote that he tries to stay neutral in his lectures, but can’t with Kelo. “Every time I read it, I become impassioned at the breadth of what the court did, and did not do, to property rights,” he wrote, adding that he warns students about his feelings. “I suspect some students and professors may be offended by my admission that I have difficult time explaining a few cases without injecting my opinion, and hold it against me. …I would counter that many, if not most (probably all) professors are subject to the same implicit biases (in one direction or the other), though they may be less cognizant, or willing to admit it. I try to acknowledge my flaws, and address the problem. I find this to be a superior approach to simply pretending they aren’t there.”

As luck would have it, one of my students commented on the post:

I am a 49 year old 2L law student at South Texas College at Law. Josh Blackman was my property I professor. I have no problem with a proffessor who expresses their own opinion, as long as I am allowed to disagree . Josh Blackman has open discussions in his class room and although he is 20 years younger than myself I respect him and his opinions.

That’s reassuring!

Recently when I was renting a car in Knoxville, the manager offered me a paper map, with the route drawn out to my hotel. I politely told him that I didn’t want one. He asked me if I had ever been to Knoxville, I said no. He asked, how would I know where to go. I replied, I’ll use my GPS. He urged me to take a map, in case my GPS didn’t work. I told him what he suspected–I wouldn’t even know how to use a map. He was shocked, but not really. Since I started driving, I’ve always at least, had MapQuest, and not to long thereafter, I had a GPS, first a standalone unit, and later an App on my smartphone. I have never had to rely on a paper map, and wouldn’t even know what to do with it. When people try to give me directions, I just smile and nod. Now, my sense of direction is pretty good, but in a place I’ve never been to, I have to rely on the GPS.

This is what has been dubbed the “Google Crutch.” I have delegated entirely a task to a device.  There are lots of other examples of the Google Crutch with me. Perhaps the most striking is that I never, ever write anything out by hand. Ever. The only times I ever put a pen in my hand is to write out a check, address an envelope, or autograph a book. I find all of these tasks extremely tedious. Filling out a lengthy greeting card, at the end, gets uncomfortable. Whatever stabilizing muscles in my hand there were tuned to hold a pen have weakened. (This should sound a note of caution to those that prohibit laptops in class–you will soon have an entire generation incapable of effectively taking notes by hand). But on a deeper level, I don’t think I could even effectively write with a pen. My fingers type when I think. That connection is much stronger than any ability to move a pen. I’ve been able to delegate all acts of recording information to a device. I wrote my entire book without a single piece of paper. My office is entirely paperless, except for a few rare books. This never ceases to amaze colleagues and students. They ask, how can you possibly work like that? I can’t imagine how people work otherwise.

I could go on. I don’t bother memorizing any phone numbers or addresses (other than my home address and phone number in Staten Island). I usually don’t remember my schedule for a given day, but rely on a series of reminders to get me to the right places on time (Google Now even tells me when I need to leave for an event, in light of the traffic). Between GMail and Google Drive, I can search everything I’ve ever written to find anything, in a few seconds. All of my Kindle books are also searchable. My blog serves as a permanent repository of my fleeting thoughts. I can’t ell you how often I google some idea I randomly have, only to remember that I wrote about it a few years ago (really hitting home that there is nothing new under my sun).

And you know what? It all works pretty well.

Now, you may be appalled by this. But you need not be. In Average is Over (an excellent book I’ll have more on later), Tyler Cowen writes about the Google crutch. As technology evolves, we shift the way we learn, delegating certain tasks to the technology. This new opportunity cost gives us the ability to perfect other skills.

The Google crutch, if I may call it that, influences how we think and how we learn. There’s now good systematic evidence about how Google changes our mental capacities, and I think most of us have experienced this personally as well. When people use Google more, they lose some of their ability— or at least willingness— to remember facts. After all, why should you keep track of all that stuff? If it is a factual question, the answer probably is right at your fingertips, especially with smart phones and iPads. In similar fashion, it seems that people who manage accounts became less skilled at some memory functions once they obtained cheap paper, writing instruments, accounting books, and other means of keeping track of figures. …

Returning to the present, Google is making a lot of the memory arts fall away altogether. Nonetheless, that doesn’t mean, as critics such as Nicholas Carr have alleged, that we are becoming stupider. First, we presumably learn something useful through Google, and that information also gives us broader background knowledge for understanding and interpreting other facts about the world, whether they come from Google or not. Second, we have become much better at

searching for answers, and that too is a skill. Rather than remembering a fact, I often remember how I can best search for a fact. A lot of my searching is done through my blog, which catalogs parts of what I know, and my Gmail account, where I store useful information. Where am I having lunch with Steve Teles tomorrow? I don’t remember, but I do remember that I ought to search for “Steve Teles lunch” in my Gmail account and I will arrive at the right answer very quickly. I also have developed a good sense of when it is better to search through Google and when it is better to search through Twitter; for instance, search through Twitter when you are looking for rumors or for very current information, say within the last half day or so. From what I see, most people prefer to give up some memory to enjoy this symbiotic relationship with modern search.

I don’t think there is any conceivable way I could manage my schedule and output under the old regime. My productivity thrives on this just-in-time style.

The natural rejoinder to this post, is “What happens if your phone breaks?” Well, I’ll get a new one the same day. The better question is, what happens if you are in a place where your phone has no access to the internet. Or more precisely, what happens if there is some sort of natural disaster, and there is no internet, period. I’ve given this a lot of thought, especially because I live in Houston, which is in the plane of tropical Hurricanes. First, I’ve taken numerous preparations. I have many backup batteries, as well as a solar-powered USB charger (it works!). Cellular signals usually work even after the power and cable lines are cut. Second, usually cellular services are among the first services to be put back online. I’ll probably have a cell phone before I have power in my home. Third, the law school has a private generator, and I’ve learned it was up and running fairly quickly after Hurricane Ike.

Now, what happens if something really bad happens, and these backup options fail for more than a few days. At this point, we’re all in trouble. Civil society decays very quickly when there is no access to communication and transportation for any prolonged time. Now, checking devices is the least of my worries.

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.

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).

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.