The search engine is one of the most important technologies of the twenty-first century. Just as was true of the television, the motion picture, and the radio before it, the widespread dissemination of this new technology is reshaping the speech environment in which we operate in profound, and often unexpected, ways. Search engines raise, as a result, a whole host of novel constitutional, as well as regulatory, questions.1 Yet, as Heather Whitney’s interesting and incisive paper demonstrates, courts confronted with free speech challenges to laws that regulate search engines tend to analyze them by means of an often-unpersuasive analogy to older technologies, chief among them the newspaper. This is a problem because it makes complex issues seem unduly simple.

Take, for example, one of the more influential of the cases Whitney discusses in her paper, Zhang v. Baidu.com, Inc.2 As Whitney notes, the plaintiffs in that case sued the Chinese internet company Baidu after it prevented their pro-democracy websites, and other websites that provided information about the democracy movement in China, from appearing in the results of the very popular search engine it operated.3 The plaintiffs claimed that Baidu censored the search results at the behest of the Chinese government, which did not want its citizens exposed to democratic ideas, and that Baidu’s actions violated their federal and state civil rights.4 The district court dismissed the complaint because it found Baidu’s decision not to include the plaintiffs’ websites in its search engine results to involve the same kind of editorial discretion as the decision by a newspaper editor not to publish an article in the newspaper.5 Because the First Amendment clearly immunizes the latter decision against the kind of civil rights claims the plaintiffs asserted, the court concluded that it immunizes Baidu’s decision as well.

Read more at Knight First Amendment Institute