Baidu v. NYC Dissidents Kicked on a Technicality

March 31, 2013

You might remember a strange little case that was filed back in 2011 by some Chinese dissidents in New York. Their weak ass sadly untested argument was that Baidu was censoring search results such that their anti-China content did not come up when folks did a search. The plaintiffs argued that this was a violation of the U.S. constitution.

While fascinated by the case, I nevertheless said it was a big fat loser, and last week, it was indeed tossed by a New York federal judge. However, the decision did not go to the merits of the case, but rather procedural issues. The case thus appears to be only temporarily dead, but don’t be fooled by this; in fact it’s actually completely dead, as I explain below.

First, the news from Reuters:

Baidu Inc on Monday won the dismissal of a U.S. lawsuit brought by pro-democracy activists who claimed that China’s largest search engine operator, as well as the country itself, should be punished for censoring them over the Internet.

U.S. District Judge Jesse Furman in Manhattan said dismissal was proper because the defendants had not been properly served with court papers, and China had invoked an international treaty in claiming that service would infringe its sovereignty.

Yes, a procedural issue that has to do with the Hague Convention, an international treaty that governs cross-border service of process and related issues. I don’t know the details here, but if the plaintiffs had to serve Baidu in China, then the Hague Convention specifies a procedure that includes China’s Ministry of Justice.

If I have that right, it means that to fix the procedural defect and move forward, the plaintiffs would essentially need the cooperation of the Chinese government to serve Baidu with papers. That ain’t gonna happen, which is why I’d say this case is all the way dead, not just very tired and in need of a rest.

Note that I’m not up on cross-border litigation issues, so maybe someone (Dan Harris? Don Clarke?) could chime in with a correction/confirmation.

This is all kind of a let down. I was worried about something like this when I wrote about the case back in 2011 (also this post):

We’ll have to wait and see what happens next, but if the case gets kicked on jurisdictional objections, or other pre-trial motions, then we’ll unfortunately never know how these guys ever thought they could win a case like this.

Yeah, it looks like that’s what happened. That’s unfortunate, because I’m pretty sure that this case not only had procedural defects, but also substantive problems as well, big giant furry ones. I wrote about the jurisdictional and constitutional issues in my first post on the case. Suffice it to say, I saw no bright rays of sunshine for the plaintiffs there.

Looking back on this, it’s kind of ironic that the reason I find this suit so odious is its argument based on the First Amendment. You’d think that the plaintiffs are the ones who are treading the moral high ground with respect to free speech here; after all, they are lashing out at the PRC’s censorship regime.

But two wrongs do not make a right, and I see this attempt to force a private company to conform to certain content rules, whether liberal or not, as not at all within the spirit of the First Amendment. As I wrote in 2011:

Look, if I wanted to start a new site called ‘Nazi Search Pig’ that omitted all blogs written by Jews (like China Hearsay) in search results, I should be able to do that. Whether Baidu is censoring porn or political speech at the behest of the Chinese government is irrelevant — the US constitution simply does not prohibit that kind of activity. However, if Baidu were to be found liable, who’s next and where does it end? What other positive requirements like this are we going to place on our platform operators?

In other words, Baidu is a private company that should be left alone when it comes to content. Its motivations for censoring search results can be criticized, but it shouldn’t be up to the U.S. legal system or government to tell it what to do in this regard. Indeed, if Congress decides to actually get involved with this sort of thing, passing local content rules for web sites (they wouldn’t officially call it that, of course), you realize what the end game would be, right? There would have to be an enforcement mechanism for sites that failed to meet the standards. I’m thinking some sort of domain/page level blocking could be done, perhaps with the assistance of ISPs or a new government-run technical agency.

But I suppose that would be OK as long as the U.S. was doing it in order to secure our First Amendment rights.

2 thoughts on “Baidu v. NYC Dissidents Kicked on a Technicality

  1. Anon

    Could just be my lack of First Amendment law knowledge, but I think this actually would have been an interesting and potentially non-frivolous argument on the merits. I guess you’re right that it would have been a loser for the plaintiffs, but I think some creative lawyering could draw parallels with some earlier cases about expression on private property to at least make it interesting.

    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/firstamstateaction.htm

    Also, framing the issue broadly–something like when may a search engine block results in the US at the request of a third party–makes it kind of tricky, no? We know that search engines will display certain results higher if you pay them to, but would they also block results if you pay them to? If a foreign government can have a search engine block negative political content in the US, could Apple or Samsung, say, pay Google to block results for negative reviews of their latest smart phone? What about a private defense contractor or weapons manufacturer paying to have results about their latest overseas antics blocked? Seems like maybe a slippery slope with some fine lines involved.

    I think the “internet” has to be defined as a public space, and search engines are vital to our ability to navigate it with reasonable efficiency, so don’t they have at least some responsibility to ensure that their services in the US comply with US standards regarding the free(ish) exchange of ideas? Certainly China demands the services of foreign search engines in China comply with Chinese standards regarding the less than free exchange of ideas. After all, search engines aren’t newspapers or magazines or journals, with their own editorial consciousness.

    1. Stan Post author

      No doubt that these would have been fun issues to see hashed out formally. It’s kind of a shame that, as I suspect, we’ll never know, at least in the context of this case.

      I touched on the public carrier issue in an earlier post. The idea gives me a great deal of pause, but it’s also definitely worth considering in terms of search engines. The possibility of a company paying a search engine to block results of a competitor sounds a lot more like a competition law issue than anything else, and probably not anything to do with free speech, but that’s just an initial reaction.