10 F. Supp. 3d 433
S.D.N.Y.2014Background
- Plaintiffs are U.S. residents who publish pro-democracy material about China and allege Baidu, a large Chinese search-engine operator, intentionally excludes or downranks their content from Baidu.com search results in the U.S.
- Plaintiffs sued Baidu (and named China, later dismissed/never served) asserting federal civil-rights claims (42 U.S.C. §§ 1981, 1983, 1985) and state/public-accommodations and equal-protection claims, seeking monetary relief and attorneys’ fees.
- Plaintiffs’ theory: Baidu exercises editorial control to censor topics like the June 4th/Tiananmen and other pro-democracy material at the direction of China, so its conduct is actionable discrimination rather than protected speech.
- Baidu moved for judgment on the pleadings under Rule 12(c), arguing its selection and ranking of search results are editorial speech protected by the First Amendment.
- The Court treated the pleadings as true for the motion and framed the dispositive legal question as whether search-engine results (and editorial decisions about them) are protected speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Baidu’s search-result selection/ranking is protected by the First Amendment | Baidu is not "speaking" but engaging in discriminatory conduct and can be sued under civil-rights and public-accommodation laws | Baidu’s selection/ranking are editorial judgments — speech protected by the First Amendment | Court: Baidu’s search-result editorial judgments are protected; Plaintiffs’ suit would penalize content-based choices and is barred by the First Amendment |
| Whether private, money-damages suit implicates the First Amendment | Private suit can proceed because this is not government regulation | First Amendment bars private-law liability that penalizes the content of speech | Court: First Amendment applies to private suits seeking to impose penalties for content; Hurley and Tornillo control and bar the suit |
| Whether search results are commercial speech subject to reduced protection | Search results are Baidu’s product/advertisement and thus commercial | Search results concern matters of public concern and do not merely propose commercial transactions | Court: Results here relate to public issues (political speech), not purely commercial speech; full First Amendment protection applies |
| Whether Turner-style intermediate scrutiny saves the claim | Turner supports regulation of conduits like search engines | Turner itself recognizes search operators make editorial choices; its rationales for reduced scrutiny (mere conduit, physical ability to silence, content neutrality) do not apply here | Court: Turner confirms search engines are engaged in speech, but its rationales for lower scrutiny are inapplicable; Plaintiffs’ content-based claims are barred |
Key Cases Cited
- Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (state cannot compel a publisher to include replies; protects editorial control)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (private organizers cannot be forced to include unwanted messages; protects choice of content)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (cable operators exercise editorial discretion and engage in speech; circumstances can justify different scrutiny)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (creation and dissemination of information are protected speech)
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (First Amendment limits state civil liability that would chill speech on public issues)
- Texas v. Johnson, 491 U.S. 397 (1989) (protection for offensive political expression)
- Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007) (district court held search-engine results protected by the First Amendment)