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Mar 31, 2014

Remember, the First Amendment Only Applies to Government Restrictions

Cross posted on Counts Law Group blog
Since this blog focuses on American law, I have not written much about the restrictions placed on the internet in other countries, such as China. (Although I did write a guest blog post for the National Coalition Against Censorship on Google's reaction to Chinese internet restrictions.) But others have documented how China places limits on what internet users in the country can access (including here and here).

So it may not be a big surprise that the Chinese search engine Baidu Inc. places restrictions on its search results, so that Chinese users cannot see in the results the sites that they are not able to access. (It was just these sort of restrictions, imposed by the government, that led Google to pull back its operations in the country.) The limits also apply to users who use the baidu.com site in the United States.

Last week, a federal judge in New York dismissed a lawsuit brought against Baidu by several Chinese dissidents and activists who live in New York, alleging that Baidu's restrictions constituted a violation of their civil rights, namely their free speech rights under the First Amendment. (They also alleged racial discrimination, and denial of rights to equal public accommodations.) The judge's dismissal was based on the principal that Baidu's First Amendment rights included the right to remove certain results from its results.

But what of the plaintiffs' First Amendment rights? If access to their writings is blocked because Baidu won't show their material in its search results, isn't that a violation of their free speech rights?

No, it isn't. And because it's a frequently misunderstood issue, its important to explain why.

The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press ... ." Note that it mentions Congress, the federal body charged with creating laws. Court decisions have extended this to also cover other rule-making entities of the federal government, such as executive and administrative agencies, and (through the 14th Amendment) to also cover state and local governments.

But these are all governmental entities. In short, the First Amendment applies only to government restrictions on free speech, and the press. And because the Constitution applies only to the United States, it cannot applied to the Chinese government (which was initially named as a defendant in the case, then dropped.)

Private entities -- corporations and individuals not acting on behalf of a government entity -- can  generally restrict speech as they wish. And they often do: think of the things you can't say to your boss without getting fired as a result. You cannot be fired or denied something made available by a private entity to the public, however, on the basis of your race or religion, and, in many places, on the basis of your gender or sexual orientation.

Or, more to the point, a search engine can decide to display or not display certain results. Even Google does this in a way, by using an algorithm that emphasizes some results over others, based on what the information it has about the user (perhaps raising privacy issues that are an issue for another day). And Baidu can choose to not display results it -- or the Chinese government -- sees as subversive.

People often -- intentionally or not -- confuse this issue. For example, there was an outcry when A&E temporarily suspended Duck Dynasty star Phil Robertson, after he made a statement that homosexuality was a sin, that the network had violated his First Amendment rights. But as others -- even Fox News' Steve Doocy -- pointed out, A&E's suspension of Robertson was not a First Amendment issue at all. He had -- and has -- the right to say whatever he wants. But he does not have the right to a show on A&E.

The same with the plaintiffs in the case against Baidu. Baidu's decision not to display the plaintiffs' writing in the search engine's results does not stop them from saying or posting things about the Chinese government. They still have their First Amendment right to speak, and Baidu's actions do not stop them from doing so. But there is no First Amendment right for them to be heard, or listed on a search engine's results.

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