Search Engines Defeat “Must-Carry” Lawsuit–Langdon v. Google

By Eric Goldman

Langdon v. Google, Inc., 2007 WL 530156 (D. Del. Feb. 20, 2007). My write-up on Langdon’s complaint from last summer.

Langdon is a griper. He sought to buy ads on the major search engines to advance his gripes, but Google allegedly rejected his ads because they attacked people, MSN allegedly ignored his ad request, and Yahoo allegedly said it would only take ads from sites it hosts. Langdon then sued all three pro se, requesting (among other relief) that the search engines be required to carry his ads.

As expected, the judge emphatically shut down Langdon’s lawsuit, calling some of his claims “specious” and “frivolous.” Specifically, the judge made the following key points that surely will help search engines in future litigation:

* Search engines have a First Amendment right to reject ads as part of their protected right to speak or not (see Miami Herald v. Tornillo). This opinion is consistent with the uncited Search King ruling, although that case framed Google’s Page Rank as protected opinion.

* Search engine decisions to reject ads is protected by 47 USC 230(c)(2) as a legitimate decision to filter “otherwise objectionable” content. The court concludes that “Section 230 provides Google, Yahoo, and Microsoft immunity for their editorial decisions regarding screening and deletion from their network.” I’m expecting the KinderStart judge to protect Google’s ranking choices under 230(c)(2) as well. (In case you’re wondering, we’re still waiting for the KinderStart ruling that was promised by the end of 2006.)

* Search engines aren’t state actors and are not bound by the First Amendment, so they do not deprive advertisers (such as Langdon) of First Amendment rights by rejecting their advertising. This opinion is consistent with at least a dozen other cases holding that private IAPs and websites aren’t state actors.

In the end, the court dismissed all of Langdon’s claims against Google, Yahoo and MSN except one. Unfortunately for Google, the court didn’t dismiss Langdon’s breach of contract claim at this early stage in the lawsuit. Fortunately, I am 100% confident that the court will grant Google’s summary judgment motion to dismiss the contract claim, so it’s just a matter of time before Langdon’s futile effort is fully extinguished.

While Langdon’s pro se status probably will limit the future precedential influence of this case, it’s still an emphatic and helpful win for the search engines. Indeed, I suspect Google’s lawyers have already pointed out the case to the KinderStart judge to give him further ammunition to reject that lawsuit.