The freedom to disallow speech in cyberspace

Attorney Eric Sinrod says tech industry escaped a close call that might have imposed shackles on search engines and Internet service providers.

3 min read
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.