Perspective: The freedom to disallow speech in cyberspace

Most of us are aware of the freedom of speech protection provided by the First Amendment of the Constitution. But what about the freedom not to speak?

Courts have held that free speech rights extend to anonymous speech on the Internet. This means that people generally can say what they want in cyberspace without revealing their identities, unless they cause harm to others. At that point, then, their identities potentially can be unmasked.

The flip side of that argument was considered recently when a federal judge in Delaware was called upon to decide whether search engines had the freedom not to run specific advertisements--and thus not to post the speech of others. Let's take a closer look.

In the case of Langdon v. Google, et al (PDF), the plaintiff sued Google, Microsoft and Yahoo for their failure to run advertisements. These related to the plaintiff's Web sites, which purportedly exposed fraud perpetrated by North Carolina government officials and reported atrocities supposedly committed by the Chinese government. The plaintiff argued that the refusal of the defendants violated his First Amendment and other legal rights.

What's more, the plaintiff claimed that even though Internet search engines are maintained by private companies, they essentially are public forums, like malls and shopping centers, and so are subject to the First Amendment.

The judge blew that argument out of the water, holding that the plaintiff failed to properly state a claim for violation of his free speech rights under the First Amendment, precisely because the defendants "are private, for-profit companies, not subject to constitutional free speech guarantees." The court deemed "specious" the plaintiff's argument that somehow the defendants were governmental "state actors" who were required to protect the plaintiff's freedom of speech.

In his ruling, the judge noted that the United States Supreme Court previously has ruled that private facilities that have been opened to the public, such as shopping centers, do not provide an automatic forum for people to express their views. The judge's decision with respect to the plaintiff's supposed speech rights is not terribly surprising.

The portion of the decision I found most interesting was the judge's finding that the defendant search engines have First Amendment rights not to run the plaintiff's advertisements.

Google argued in defense of the case that to run the plaintiff's advertisements, as requested, would force Google to speak in a manner deemed appropriate by the plaintiff, but would prevent Google from speaking in ways that the plaintiff would not like. In essence, Google did not want to be commanded by somebody else as to the speech content it posts.

The federal judge agreed and found that the First Amendment guarantees the right to free speech, "a term necessarily comprising the decision of both what to say and what not to say." The judge concluded that the relief sought by the plaintiff, that would force the defendants to run his ads, "contravenes defendants' First Amendment rights." The judge thus dismissed most of the plaintiff's complaint.

A collective sigh of relief must be emanating from the Internet search engine and Internet service provider communities in the wake of this decision.

Indeed, imagine a world where the law required they post any third-party content. Over time, the search engines and ISPs would lose their ability to preserve the identity of the sites they seek to maintain. In that brave new world, they would have to post content otherwise deemed objectionable and perhaps contrary to their missions or views. That certainly would abridge their freedom.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[fredtheviking]

Corporate Control

Hmmmm... I find the judgment to be somewhat troublesome. Google is a large corporate organization, it has a lot more power than an individual or say even a single supermarket has. To say that Google has the right to disallow people to advertise their viewpoints on their search engine; I believe undermines the purpose of first amendment. What if Google effective control almost all forms of media... arguable Google could effective suppress one right to free speech. Or Google, Microsoft, and other companies could band together to effective dictate what forms of speech is allowed and not allowed. I don?t trust corporation to be responsible in such action. I sincerely hope a higher court overrules this decision.

[ddesy]

Not so black and white

I don't think that this judgment is that troublesome. An advertisement can often be seen as a reflection of a company?s values. Much like individuals, companies have a right to say what they want to and not say what they don?t want to.

If the issues had been Google denying a listing rather than an ad, then I could see a problem. A listing is nothing more than sorted data collected for searching. The listings do not necessarily represent the values of the company providing the listings, so there is less potential impact on the company.

As long as Google et al aren?t trying to censor listings, I don?t see much of a problem. Had this been the case, I think that the courts might have seen things differently.

[umbrae]

An example...

Let say you sell your car as an advertising medium. I.E. Paint the car with a billboard.

Would you like to drive around town with an abortion , or some other sensitive or possibly offensive ad on it? If this is over turned, then by "denying" this ad you would be breaking the First Amendment.

Regardless of your view on the abortion issue, this type of ad could be damaging to you. You could have the car vandalised, you could be assaulted or shot. Free Speech is just as much about what you say as what you don't. Even Corporations have the right to say no.

[sumwatt]

No Surprise on Verdict

"The portion of the decision I found most interesting was the judge's finding that the defendant search engines have First Amendment rights not to run the plaintiff's advertisements."

The Constitution, the bedrock of American government, contains 10 amendments or the Bill of Rights which enumerate certain rights that government can not infringe upon. The Bill of Rights, in no way, deals with so-called infringement of rights of individuals or organizations. Meaning, government can take no action to abridge those freedoms. It doesn't mean they can not happen outside of the scope of government between private citizens and organizations but that government can not take any action to corrupt those rights.

If domains are treated as private property on the Internet, the owner of that property maintains the right to do with his or her property as he or she pleases - including discriminate, censor, and set all rules to his or her own wishes. It is somewhat akin to the Castle Doctrine applied to intangible assets that exist as bits of data. Anyone who has run a public forum has set rules for those forums. We see them every day - those are the rules established by the owner of the property.

Violators are often banned for trolling, spamming, and a littany of other annoyances the owner has declared "illegal" on their site. But to a degree, most services play loose and fast, extending many natural rights to individuals as possible while maintaining some control over their piece of the Internet. If Google or Yahoo refuse to run an ad, they refuse to run an ad - they have no implied obligation to run an advertisement especially if that advertisement may have serious repercussions on their business structure. This is why they have exception clauses in their agreements - to protect their rights as property owners and establish their power on their property.

This is a great article that points out many of the problems that arise when people misinterpret how the Bill of Rights is applied outside the scope of government (they generally do not apply).

[Bob H in NPR]

Free Speech or Free Property?

Every form of publication - whether magazines, newspapers, books, dictionaries & encyclopedias, TV & radio stations & networks, PBS & NPR, you name it - has the right to accept or deny any advertising, article, opinion/letter to the editor & to edit anything they do print. They also have the right to offer or not any "link" to whatever they please. The right given to them & us is the right not to have the government dictate what can & cannot be said. We have no free speech rights against another person or organization under the Constitution.

Thus, Google is going beyond what they need to, allowing anyone to post a link/listing. About 2 years ago, AOL limited listings from Google to their subscribers according to their own opinions, which they have the right to do. Google chooses not to do that. I also have the right to squeal on AOL & suggest people use Google as their search engine. My First Amendment right.

The judge is absolutely right in his decision.

[zemoxian]

Mall or Shopping center?

AFAIK, if someone brought their soap box to a mall or shopping center and mall management didn't care for what was being said, they have the right to send security to escort them out.

This being a case of ads, however, this is more like wanting your ad to be in one of those back lit billboards. I think few people would demand those as part of a right to free speech.

[btljooz]

Can YOU say CENSORSHIP?........

See for YOURSELF!!!!! ;)

Try this on for size:

Go to Yahoo Search and type in "US Constitution Bill of Rights" ...Minus the "s of course. See what you get?????

NOW, go to Google Search and use the EXACT SAME search phrase. See what you get??????

Then do the same with MSN and any others you want to. See what you get?????

THAT is PROOF in the puddding as to what is going on.