back to article Judge rules Baidu political censorship was an editorial right

Chinese search giant Baidu has evaded a lawsuit launched in the US by a pro-democracy group who claimed that the search engine was illegally suppressing political speech. The New York residents, who advocate for greater democracy in China, said that Baidu was unlawfully blocking US articles and information about the democracy …

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Anonymous Coward

""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."

You know, I'm not surprised when Guy On The Internet doesn't recognize the difference between the government suppressing speech and a private entity exercising control over its own output, but I have to say it's somewhat bizarre that an actual lawyery person managed to confuse the two...

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Problem lies elsewhere

The apparent paradox goes away when you realise that it is wrong to give corporations personal rights, as if they were people.

Corporations aren't people. They don't enjoy the same rights - the vote for example. They aren't subject to the same punishments, you can't put a corporation in prison or in the electric chair. It is a fallacy to give Baidu speech rights as if they were a person. Neither can it exercise religion or carry a weapon.

Once you remember that corporations aren't people the paradox vanishes away: Baidu can't exercise a right of free speech.

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The lawyer likely does not actually confuse the two.

Remember that lawyers are biased. They work for one side or the other. They deliberately spin everything they can to bolster their case, and forget to mention everything that detracts from their case.

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There's no paradox

The difference to make is between corporations, like Baidu, and people.

The 1st amendment never intended to extend free speech to a corporation. It granted the rights of free speech to people, so that a government of the people, by the people, for the people would be possible. It's only been interpreted by the courts as corporation rights in very recent years, with disastrous effects: as campaign spending and special-interest advertising have become seen as protected under the first amendment, it has transformed the electoral process in the U.S. and created the adversarial, expensive mud-slinging that we see today.

The idea that a Chinese corporation's moves to suppress information should be seen as free speech is, quite frankly, barmy. If it is enjoying the rights of a person, where is its entry visa into the United States? Is it allowed to apply for work there? If it breaks the law, will it go to prison?

More about the stupidity of corporate free speech here: http://freespeechforpeople.org/

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> the difference between the government suppressing speech and a private entity exercising control over its own output

Those search results were banned on government order, not because Baidu felt like it.

Even if that wasn't the case, Baidu and Renren are so closely linked to the Chinese secret service that they can both be considered state actors.

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Re: There's no paradox

The paradox was artificially created by the losing lawyer (LL) in conflating freedom of speech with freedom of the press. Both are protected by the First Amendment and this ruling neither imparts nor extends any freedom of speech by corporate entities because it doesn't address the topic at all. What LL knows is that the vast majority of folks have never actually read the First Amendment, let alone the Constitution, and recognized that he can score some publicity points and induce a knee jerk response from folks who equate the First Amendment with free speech and nothing else.

What is really going on is the judge correctly understands the difference between positive rights, which don't exist except by fiat, and negative rights, which are what the Bill of Rights guarantees. Simply put, freedom of speech is a negative right in that no one is required to do anything. It becomes a positive right when someone is forced to listen when they would rather watch a football game or provide a medium for the speech. It's not a positive right because that would inevitably infringe the Fourth Amendment rights of another. Note here that I assume that businesses are property and forcibly requiring a business to provide a positive right is no different from forcing its owners and denying them Fourth Amendment protections.

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Those search results were banned on government order, not because Baidu felt like it.

Even if that wasn't the case, Baidu and Renren are so closely linked to the Chinese secret service that they can both be considered state actors.

The Chinese government is not subject to US law, so by that argument the court lacks jurisdiction.

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> The Chinese government is not subject to US law, so by that argument the court lacks jurisdiction.

Yes. That would have been a good reason to dismiss the case.

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Anonymous Coward

Re: Problem lies elsewhere

"The apparent paradox goes away when you realise that it is wrong to give corporations personal rights, as if they were people."

Be that as it may, the implication then is that it should essentially be illegal for any corporation to exercise editorial control over contributions from outside. Your company has a forum and someone's trolling? Free speech! A newspaper doesn't print your crazed political rant? Censorship! How can you demand 'free speech' from entities when their entire business is deciding what and what not to publish?

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@Oninoshiko: Jurisdiction, Standing, Justiciability.

"The Chinese government is not subject to US law, so by that argument the court lacks jurisdiction."

Not only does the US court seem to lack jurisdiction, but if Baidu, a Chinese corporation (well, presumptively, anyway) in China, was not merely not complying US law but actually complying with Chinese law, that would also seem to grant them immunity from any lawsuits in other jurisdictions.

I wonder how the plaintiffs have standing to bring a lawsuit in the first place, and I don't even see a justiciable matter here.

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government vs private

I wouldn't say that quite applies in this case. Would the censoring party be doing it absent the government of China imposing censorship on the results?

Certainly the private group has the right to edit their results. But I can't see a US company actually doing that. Because once you edit the search results you no longer have the safe harbor provision to protect you from all kinds of liabilities.

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@Oninoshiko

Yes, but that would have been the correct ruling instead of an incompetent one.

I concur with the section of a poster above about the differences between positive and negative rights and their implications for legal interpretations. That being said, if it had been the US government which ordered the change in the search results and the ISP complied, even though the users are third parties their rights as citizens have been violated by the government edict not simply company policy and it would be proper for them to sue and win their case.

Furthermore this ruling is at odds with the safe harbor provisions under which most search engines and lSPs operate. The ruling is nonsensical.

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Re: the implication then is that it should essentially be illegal

Not at all. So long as the editorial decision is made solely by the corporation it is competent to do so. But when the editorial decision is imparted from outside the company by government it is improper.

Moreover as I noted above, this decision essentially makes safe harbor provisions null and void because it expressly says search engine results are editorial in nature. Safe harbor provisions only apply to unedited results.

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Thumb Up

I agree 100%

with the judge

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Re: I agree 100%

Me too. I think his telling argument was the "there are other search engines". If you don't like what one corporation produces, take your business/traffic elsewhere. Imagine the fun you could have suing Fox News or CNN for perceived bias.

Baidu is not officially a government organisation, and the free speech requirements only apply to the state - there is no requirement for me as an individual to allow anyone to use my resources for their own purposes, but I have no right to stop them using their own. A corporation is owned by its shareholders and the decision was made on their behalf[*] that their assets not be used to provide certain search results. That's no different to a media organisation such as Fox or CNN choosing to omit information from a story they cover.

[*] If the shareholders disagree then in theory they can remove the decision-makers and put in replacements.

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Re: I agree 100%

Then you haven't thought this through.

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Re: I agree 100%

I have thought it through. Whether I agree with the decision to censor the search results or not, it's supposedly a privately-owned system and there's plenty of alternatives that give different results. I choose to use one that I believe doesn't censor its results and tries to highlight when it's been forced to.

To me it sounds more like a group trying to make a quick buck - it wouldn't surprise me to find that Baidu has no US presence that could be hit up for $16 million anyway, so it's certainly not under the jurisdiction of a US judge.

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I can see where the judge is coming from, but given the role that search results play I think the case could also be made that suppressing search results goes a bit beyond editorial rights. I've honestly never thought about it before and I'll need some time to consider and properly form an informed opinion on the matter.

Regardless though I've got to wonder exactly what the plaintiffs think a US court is going to be able to do about a search engine that answers first, foremost, and possibly only to the Chinese government filtering their search results.

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what the plaintiffs think a US court is going to be able to do

sisk, apparently the plaintiffs thought that a US court would be able to award them $16m in damages for violations of their civil rights.

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@sisk

"I'll need some time to consider and properly form an informed opinion on the matter."

You're not allowed to do that, this is the INTERNET. We demand your snap judgements and knee-jerk reaction based on group-think and a poorly-informed understanding of the topic NOW!

I do, however, agree with you, although I'm leaning towards the judge's side of the argument. As someone has said below, there's a difference between a government telling people what they can say (suppressing free speech under coercion of law-enforcement) and a private entity doing the same - the latter could be described as editorial licence, or more simply "my house/website/premises, my rules". As the judge mentioned, those wishing to make/hear a different speech viewpoint have a choice of search engines; of government, not so much.

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Re: @sisk

The existence of a government order about the censorship negates the argument that the company was engaging in its own editorial policy.

Proper course of action would have been to dismiss the case on the basis that the court has no jurisdiction over Chinese law.

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No matter who is censoring whom

How on earth is it worth $16m in damages? Where's the costed damage?

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Pint

"How on earth is it worth $16m in damages? Where's the costed damage?"

Easy. That's how much money they figured they needed to spend the rest of their lives in retirement.

You got a problem with that? Hmmm?

Nearly beer-thirty...gotta to go.

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If the judge didn't dismiss it, I could see this opening a whole other can of worms. Could the lawsuits where "[evil search engine] ranks my website last or not at all and thereby suppresses my freedom of speech" be far behind? Or have we already done those?

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How about the judgements in France requiring certain search results be changed? "Google suggest" I think.

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Or Evil Fox News/CNN/Huffington Post chose to promote one story that fits their agenda over another which does not.

Or http://www.homeopathy-soh.org choosing to only reference pro-homeopathy research.

Or $CarMaker not linking to consumer reports showing it was not Best Car 2013.

If news sites can choose which stories to publish and which to supress, surely it is no different for news aggregators, special interest groups or search engines too.

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It's MY press not YOUR press.

I'm sure this was sorted out for newspapers a very long time ago, and anyone serving web pages to the internet is a publisher every bit as much as a newspaper is. The publisher owns the computers generating the search results, and if freedom of speech means anything it means they have an absolute right to "print" anything they want, subject to overriding laws (on incitement, porn, etc.)

The judge is right. If you don't like Baidu, use a different search provider. If you don't like any of them and have enough money, write your own, thereby expressing your own freedon of speech. You might well start by generating a database of articles containing "China" "Chinese" "Sino-" etc. that can be accessed through Google but not through Baidu.

Paradox? What paradox?

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Re: It's MY press not YOUR press.

So, if the US passes a law suppressing all results referring to anything Snowden released and Google filtered on that basis, would it be a violation of free speech rights? And we'll make it specifically a US citizen to side step the cross border issue.

No, it's still government censorship which is forbidden and a violation of US Constitutional rights.

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FAIL

The China-fication Of The World

Oops. No westernization of China. We got it backwards.

This sick and twisted ruling gets my nomination for The Orwell Award of 2014. Judge Jesse Furman, please get out of my country and move to China where you belong. You don't belong on the bench in the USA. Shame on you for setting a horrifying precedent directly suppressing freedom of speech in the world. That is what you've accomplished.

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Nothing new here...

I spent fifteen years as a volunteer SysOp in multiple fora. If you posted something not in accordance with our guidelines it would be moved out of view. If you did so repeatedly despite warnings, you were banned. On/in someone's private property, you do not have an absolute right to free speech. If you believe otherwise, you are sadly deluded. And yes, I'm very familiar with Constitutional law.

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Re: Nothing new here...

Baidu isn't a forum, it's a search engine like Google that forms the major way in which the Chinese people find things on the Internet. And there's obviously no legitimate reason to take offense to the facts about the Chinese government's suppression of Tibetan culture or the Falun Gong faith.

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Wrong Defendant?

Had they sued the government of China, or the Chinese Communist Party, for issuing orders to Baidu, or for interfering with access to Google, this paradox would not apply. (Incidentally, in the United States, this paradox would actually be good law, liberating cable companies from having to carry "public access" channels whose content might offend some customers.)

Unfortunately, such a suit would not go better for the plaintiff, as in that case sovereign immunity would apply. Nice try, though.

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confusion?

He's lawyer for the plaintiff. He's paid to look at it that way!

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Anonymous Coward

confusion?

He's lawyer for the plaintiff. He's paid to look at it that way!

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You can't fix that kind of stupid

A "pro-democracy" group *cough* wants to sue another country for not having the same "rights" as the country they live in?

You really can't fix that kind of stupid.

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Anonymous Coward

"What is really going on is the judge correctly understands the difference between positive rights, which don't exist except by fiat, and negative rights, which are what the Bill of Rights guarantees."

Yes, the judgement is correct if one myopically focuses (as seems to be the way in the US) on what logical conclusion is reached by extrapolating The Constitution.

An no, many rights (and prohibitions - incitement was mentioned) exist only by 'fiat' - that being the collected decisions of the branches of government.

But those fiat decisions exist to remedy the flaws involved in taking an autistic view of an 18th century document and trying to create 21st century law from it.

The difference is this case is the amount of centralisation inherent in 21st century forms of 'speech', where private 'speakers' hold the power that, it was envisioned in the 18th century, only a government could ever hope to hold.

Good law is created by only ever making such fiats incrementally, so as to give time and space for challenge along the way. There are laws about political spending on TV 'speech', rules about balance in journalism and more of the like in the UK, where only 'fit and proper' persons (realistically excluding only fraudsters and terrorists) may hold a broadcasting license. The judiciary is independent in order to allow it the leeway to make these kind of incremental changes, and this is what society would clearly have expected in this case. All the more so in tech circles, where we understand, eg, the existence of filter bubbles and the meaning of Google's annual censorship stats.

The judge cannot have been unaware of this expectation, but has declined to codify such a change. Maybe the claimants sought too big a jump, but the effect now is that he has knowingly given search engines (and the government, since they can also mandate filters for search terms) complete freedom to censor search, without explanation and based on criteria invisible (and probably unknown) to users.

All in order to stand up for the principle (which seems sadly absent in cases involving the rights of 'natural' persons) that the constitution must be interpreted inflexibly.

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WTF?

World Police?

I may have missed something here, but what the hell has this got to do with New York citizens and US courts?

Maybe we should prosecute Fox News here in the UK because of the lies they broadcast

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Re: World Police?

Well, you see, China is a signatory to certain trade agreements with the United States. And suppression of free speech in China may, among other things, interfere in the ability of American companies to compete in the Chinese market.

Otherwise, yes, American courts would have no jurisdiction.

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FAIL

Re: World Police?

What a load of bollocks, it has nothing to do with trade agreements.

They are suing Baidu, who are a US registered company listed on NASDAQ and regulated by the SEC, based upon the search results they offer to US users.

This is why the US court has jurisdiction, not some "interference in the ability of American companies to compete in the Chinese market".

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Interesting...

So, if search results are protected free speech and the companies providing the search functions can't be sued for the results, where does this put torrent-listing sites? They are, after all, (if I understand correctly) nothing but search engines cataloging the torrents. Does that mean that they are (at least in theory) protected?

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Re: Interesting...

No. In fact this ruling removes them from the previously existing safe harbor provisions, which exist only for "unedited" materials. As soon as you edit, you are open to libel/slander.

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A truly moronic lawsuit to file - if the US government had ordered Baidu to filter out, say, articles about Snowden, that would indeed be wrong. The First Amendment restricts the government - not private or indeed foreign entities. If I wanted to build my own search engine which only indexes, say, websites hosted on Linux, or websites which contain the word "meh" in the title, I am free to do so - just as Baidu are free to publish an index of websites which are PRC-approved.

Why did this ever get as far as court?! Google, Bing and co have been filtering and tuning their search results for years now to cull spammers, give better results, comply with DMCA takedowns etc.

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