first-amendmentBy Erin Garza, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

Business success in America not only generates increased dividends for shareholders and opportunities for consumers, but it also, regrettably, attracts litigation. Take, for instance, the constant flow of lawsuits search-engine companies face from individuals and organizations unhappy with their placement in search results. Search-engine businesses have consistently prevailed in such suits, arguing that the First Amendment protects how they design and apply their search algorithms.

However, a May 12, 2016 federal district court decision, which rejected Google’s motion to dismiss and allowed a search-engine optimization firm’s lawsuit to proceed, departed from this positive First Amendment trend. Was the decision in E-Ventures Worldwide, LLC v. Google an aberration or has this plaintiff found a creative new way to avoid the First Amendment defense?

Traditional media sources have long enjoyed the freedom to publish or ignore stories, as they so choose. For instance, a magazine is free to bury a less-newsworthy story on the back page just as a journalist may refuse to report on an issue altogether. This practice is permitted because the Supreme Court has consistently held that free speech comprises both “the decision of what to say and what not to say.” For search-engine companies like Google, the ‘not’ is of the utmost importance.

In the early 2000s, search-engine companies began asserting the First Amendment to fend off lawsuits brought by businesses dissatisfied with their rankings in Internet search results. The companies consistently prevailed in such suits by arguing that—like reporters who determine which stories make the 6 o’clock news and which do not—search engines have the right to rank or omit websites. Search results, they reasoned, constitute nothing more than “an expression of [the] search engine’s editorial opinion about the value of the given website.”

The first time a court authorized the use of the First Amendment defense in this context was in a 2003 Oklahoma district court case, Search King, Inc. v. Google Tech, Inc. In Search King, a website brought suit against Google for allegedly lowering the site’s online page rank. The presiding judge classified the page ranks as “opinions of the significance of particular web sites as they respond to a search query” warranting “full constitutional protection.” Four years later, a Delaware federal district court adopted similar reasoning in Langdon v. Google. In Langdon, the court not only agreed that web content constituted protected speech under the First Amendment, but went one step further in holding that content excluded from a website was protected, too.

Both district courts’ holdings were reinforced in Zhang v. Baidu, a 2014 case from the Southern District Court of New York. In Baidu, District Judge Jesse Furman issued what has been viewed as the most detailed judicial analysis of search-engine companies’ First Amendment defense. In that case, Baidu, Inc., an entity akin to an Internet search engine, allegedly blocked from its search results articles and other information sought by New York residents advocating for increased democracy in China. Ruling on a motion for judgment on the pleadings, Judge Furman endorsed the Oklahoma and Delaware district courts in concluding that Baidu’s censorship of its search results was a constitutionally-protected editorial judgment. Judge Furman extensively referenced UCLA law professor Eugene Volokh’s White Paper in his decision.* Since search-engine companies have consistently prevailed in litigation by claiming a First Amendment defense, why was the outcome in E-Ventures different?

E-Ventures has been described by some observers as a procedural ruling that “flies in the face of established legal precedent.” Such a statement is not incorrect. The Florida court seems to have focused less on the merits of the case and more on the plaintiff’s attorney’s clever wordsmithing of claims in reaching its decision.

The court conceded that Google’s ranking of search results is constitutionally protected free speech. The court opined, however, that it was not the search results at issue, but rather ‘what [Google] says and what it fails to say’ about its search results that called for concern. E-ventures slapped Google with claims that the company issued misleading statements regarding its content-removal protocol. In addition, E-ventures argued that Google incorrectly classified the company’s websites as “pure spam” and falsely stated that E-ventures violated Google policy. Since such statements and violations could be proved true or untrue, the court declined to grant Google preliminary relief. This case is a prime example of a court side-stepping the main issue (here, Google’s right to lower a website’s ranking or omit it entirely) in order to allow a case to proceed.

It appears as though E-Ventures’ supplementary arguments pushed the Florida court to deny Google’s motion to dismiss. Google will undoubtedly attempt to appeal the district court’s ruling. No court has previously regulated how a search engine may program its algorithms or run its site. To start now, as supporters of search-engine companies’ position argue, would open the door to new liability each time an individual or entity is unhappy with its ranking in search results.

* The White Paper analogizes search-engine companies to traditional news media outlets that are entitled to First Amendment protection over their publications. The rationale behind such a parallel rests upon Volokh’s (and the courts’) belief that because the content published by traditional media outlets is protected as a form of that entity’s opinion, online companies and their opinions, too, should be protected.