Baidu vs. NYC Dissidents: A Cranky Postscript

May 23, 2011

Since my earlier, lengthy post of this pending litigation in New York, I’ve had a chance to review the actual complaint filed by the plaintiffs alleging that search engine Baidu and the Chinese government are in cahoots to violate these guys’ constitutional rights.

I thought there might be enough in there about their legal strategy for another substantive legal post, but alas, it’s a pretty standard, bare bones complaint that doesn’t give away very much. 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.

Of course, I believe that this case doesn’t stand a chance to begin with, and I’ve got a serious problem with the lawyer who filed it. There’s a dirty little secret in the American system of civil litigation — lawyers file frivolous cases all the time. Our ethics rules say that we can be sanctioned (i.e. fined) for doing so, but such penalties are hardly ever imposed by judges. This case isn’t even close to being sufficiently outrageous from a frivolous perspective, so the plaintiffs’ lawyer has no need to worry.

More’s the pity. I hate having to defend the system to non-lawyers, and every time you get a case like this (assuming it’s frivolous), that argument becomes that much more difficult. No wonder there are constant calls for things like tort reform.

Anyway, sorry for an esoteric rant on a Monday. There are three remaining issues with this case that I wanted to throw out.

First, this is NOT a case of America vs. China. Yes, a US federal court is involved, but obviously the court did not instigate this whole thing. I have already seen a couple of press accounts that slide into “nation vs. nation” language. No, a US federal court will not be handing down a ruling on China’s censorship laws, so stop salivating.

Anyway, the plaintiffs are all Chinese, although I’m sure that they are either US passport or green card holders. I bet most, if not all, of them were born and raised in China. The complaint lists their Chinese names only. While this is not definitive evidence of anything, it does suggest that these folks were not born in the US, where many Chinese immigrants adopt English first names. The case is about politics, not nationality.

Second, the complaint tells me all I need to know in paragraph 9:

The Defendant PEOPLE’S REPUBLIC OF CHINA, located In Asia, is a†communist/authoritarian state ruled by the Communist Party of China that severely†restricts the freedom of press, freedom of political speech, freedom of internet, freedom†of reproductive rights, and the freedom of religion.

Can someone explain to me how “freedom of reproductive rights” and “freedom of religion” are relevant to this case? I first thought that perhaps one or more of the plaintiffs was alleging that their writings on these topics had been censored, but no, only “pro democracy” materials were cited in the complaint.

This leads me to assume that the list in paragraph 9 was simply inflammatory, perhaps designed to bolster the description of China as a “communist/authoritarian state.” I think it can be stipulated that China censors web content without all this other crap.

Third, the alleged “conspiracy.” I touched on this in my earlier post, but I wanted to use a quote from the complaint to highlight this issue. The plaintiffs allege, in paragraph 11, that their political writings:

. . . do not appear in any search results performed on the web based search engine as a direct result of the conspiracy between BAIDU.COM INC. and THE PEOPLE’S REPUBLIC OF CHINA to censure any political speech that is pro-democracy and specifically that pro-democracy political speech of each of the Plaintiffs in this case.

In other words, they are claiming here that Baidu is not filtering results because the law in China forces them to, but rather that they are engaged in a conspiracy with the Chinese government to violate the plaintiff’s rights under the US constitution and the laws of the State of New York.

My goodness, that’s utter shit.

Okay, I think I’ve devoted more than enough time to this case, which we’ll probably never hear about again.