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 Eight New York writers and video producers had accused Baidu of
creating search engine algorithms, at the behest of China, to block
users in the United States from viewing articles, videos and other
information advocating greater democracy in China.
The plaintiffs said this kept Baidu users from seeing their work,
unlike users of other search engines such as Google and Microsoft's
Bing. They sought $16 million in damages for violations of their
civil and equal protection rights.
U.S. District Judge Jesse Furman in Manhattan, however, concluded
that the results produced by Baidu's search engine constituted
protected free speech under the U.S. Constitution, warranting
dismissal of the May 2011 lawsuit.
"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,"
the judge wrote.
Furman likened a search engine's "editorial judgment" to that of a
newspaper editor who decides which stories to publish.
He also said there is a "strong argument" that the First Amendment
immunizes search results from "most, if not all" kinds of civil
liability and government regulation.
"To allow plaintiffs' suit to proceed, let alone to hold Baidu
liable for its 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," the judge
said.
APPEAL PLANNED
Stephen Preziosi, a lawyer for the activists, said his clients will
appeal.
"The court has laid out a perfect paradox: That it will allow the
suppression of free speech, in the name of free speech," he said in
an interview.
Preziosi also criticized Furman's newspaper editor comparison,
calling Baidu "more analogous to a town square, where pretty much
anyone can go and say what he wants."
Baidu declined to provide immediate comment.
The import of the decision is that Baidu, along with other search
engines like Google, Yahoo and Microsoft Corp's Bing, has the same
editorial rights as print publications and can choose whether or not
to publish people's writings, said Carey Ramos, of Quinn Emanuel
Urquhart & Sullivan, and Baidu's lead attorney for the case.
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"That rights extends to Internet media as well as print media. And
it protects Chinese media as much as American media," said Ramos.
"The plaintiffs sued Baidu saying, 'You're violating our first
amendment rights because you don't include our writings in your
search results,' but the court said, 'No, you've got it backwards,
your lawsuit violates Baidu's first amendment rights by asking the
court to penalize Baidu for not returning the results you want.'"
China's Foreign Ministry also responded to a question on the
lawsuit.
"The Chinese government consistently guarantees in accordance with
the law Chinese citizens' freedom of speech, and consistently
demands that Chinese internet companies strictly enforce relevant
Chinese laws and rules," said Foreign Ministry spokesman Hong Lei.
"The relevant judgment just so happens to affirm Chinese government
policy," he said.
The lawsuit had been filed one year after Google pulled its search
engine out of China after hitting censorship problems. China has
also blocked Google's YouTube service, and social networking sites
such as Facebook and Twitter.
In March 2013, Furman had dismissed the lawsuit on procedural
grounds but later allowed the case to resume.
The case is Zhang et al v. Baidu.com Inc, U.S. District Court,
Southern District of New York, No. 11-03388.
(Reporting by Jonathan Stempel in New York;
additional reporting by
David Brunnstrom in Washington, D.C. and Paul Carsten and Ben
Blanchard in Beijing; editing by Leslie Adler, Peter Galloway and
Cynthia Osterman)
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