Federal Court Holds Google’s Decision to Remove Site From Listing is Not Protected by the First Amendment

May 22nd, 2016

E-Ventures Worldwide filed suit against Google for removing its web site from Google’s search listings. The company alleged a violation of the Lanham Act, and several state tort claims. Google (as it has done before) defended its decision to exclude E-Ventures’ site, claiming that the company violated its Terms of Service. As a result, Google’s First Amendment rights protected that decision to include or exclude content.

The District Court rejected Google’s Motion to Dismiss on the First Amendment claims. M.D.Fl. distinguished the output from Google’s “page rank” sorting algorithm–which other courts have recognized are protected by the First Amendment–with its decision to remove a site for a Terms of Service violation. Here is the key part of the analysis:

The Court has little quarrel with the cases cited by Google for the proposition that search engine output results are protected by the First Amendment. Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014); Langdon, 474 F. Supp. 2d 622; Kinderstart v. Google, Inc., No. C06-2057JF(RS), 2007 WL 831806, at *1 (N.D. Cal. Mar. 16, 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *1 (W.D. Okla. May 27, 2003). The Court finds these cases persuasive that Google’s PageRanks are pure opinions of the website’s relevancy to a user’s search query, incapable of being proven true or false. While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies. (Doc. #75, ¶¶ 66, 88-89, 92.) Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies. (Doc. #78.) The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

(NB: My article, What Happens if Data is Speech, was cited in Zhang v. Baidu).

The court further rejected Google’s claim that the exclusion of the site is protected by Google’s editorial judgment, because the decision was made for “anti-competitive motives”:

Google also argues that its search results are editorial judgments protected by the First Amendment. (Id. at 13.) While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives. (Doc. #75, ¶ 18; Doc. #79, p. 11); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386 (1973); Ragin v. New York Times Co., 923 F.2d 995, 1003 (2d Cir. 1991); Levitch v. Columbia Broad. Sys., Inc., 495 F. Supp. 649, 662 (S.D.N.Y. 1980) (“[A]bsent such purely editorial conduct, plaintiffs’ claims must be tested against the normal pleading requirements applicable in federal court.”). Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution. Pittsburgh Press Co., 413 U.S. at 386.

I am not familiar with the “anti-competitive motive” exception to the First Amendment, so I’ll reserve judgment for now.