June 08, 2006
"Must Carry" Lawsuit Against Search Engines--Langdon v. Google
By Eric Goldman
Langdon v. Google, 1:06-cv-00319-JJF (D. Delaware complaint filed May 17, 2006)
Omigosh, will these lawsuits over search engine editorial discretion ever cease? Earlier this week I reported on (yet another) lawsuit against Google for dropping a website in its rankings. Now, this latest lawsuit claims that the search engines squelched various political ads and de-indexed the plaintiff's website.
I won't do a thorough deconstruction of the lawsuit because it has zero chance of success. It was filed pro se and doesn't conform to standard procedural rules about complaints. More importantly, it lacks legal merit on its face. The complaint is principally based on the loser argument that a search engine is a public forum—an argument which has already been rejected a number of times.
I feel a growing ennui about with these unmeritorious pro se complaints/publicity stunts against search engines, so normally I would have passed on blogging about this. However, I thought the requested relief (see page 28 of the complaint) was remarkable enough to warrant a mention. There, the plaintiff says:
"I ask for the following relief...(c) that Google-AOL, Yahoo! and Microsoft be required to place my ads for my websites...in prominent places on their search results for searches of my choosing; (d) that Defendants Google-AOL and Yahoo! honestly rank my websites...in their search results, as Microsoft does..."
Wow, what plaintiff wouldn’t like this relief? Many websites pay search engines a lot of money for these benefits, but if guaranteed prominent ad placement and an “honest” (i.e., better) ranking is available from a judge, you can only imagine the line to the courthouse. Lawyers would displace the SEM/SEO industry entirely!
I thought the “must carry” demand implicit in (c) is particularly interesting. Recall that from Miami Herald v. Tornillo, a statutory must-carry rule applied to newspapers violated the constitutional freedom of the press. Given the very specific justifications for tighter regulation of broadcasting, and that those bases have been held inapplicable to the Internet (see, e.g., Reno v. ACLU), I think (for these purposes) that search engines are more appropriately analogized to newspapers instead of broadcasters. Accordingly, I can’t see how any judge could constitutionally order “must carry” relief here.
If I were one of the search engines sued, I’d look at this lawsuit as a blessing, not a nuisance. If the search engines play their cards right, maybe this case can produce some unambiguous and favorable precedent clarifying their right to exercise their editorial discretion (beyond the Search King precedent). That precedent, plus maybe some sanctions or anti-SLAPP relief, may help to inhibit future unmeritorious claims.
Hat tip: Wired News blog.
You assesment of Langdon v. Google is very superficial. The internet is a public forum, therefore internet search engines cannot censor political speech, i.e. my cyber-leafletting. See: David J. Goldstone, "A Funny Thing Happened on the Way to the Cyber Forum: Public v. Private in Cyberspace Speech," 69 Univ. of Colo. L. R. 1;
"Is Cyberspace a Public Forum ?" (409 The Grgtwn. L. Jrnl. 409; "Sidewalks in Cyberspace..12 Harv. Jrnl. L. & Tech. No.1...Internet search engines are common carriers (47 U.S.C. 153(10) and may not discriminate in the mesages they send (47 USC 202). Therefore, Miami Herald v. Tornillo is irrelevant. Sincerely, Chris Langdon
Posted by: Chris Langdon at June 10, 2006 06:05 PM
Chris, thanks for your post. You failed to cite the dozen or so cases directly addressing and rejecting your basic argument that private websites are state actors. I'm confident that a few citations to law review articles won't overcome that weight of precedent! Eric.
Posted by: Eric Goldman at July 31, 2006 09:33 PM
What about the ground of abuse of dominant position ? Google being in a dominant position, should provide for a ranking system that is not discretionary ; for instance, in France, the Yellow Pages presents results in a random alphabetical order with the beginning letter that changes for each request...
Posted by: vibert at November 8, 2006 03:42 AM