U.S. Court: Chinese Search Engine's Censorship Is 'Free Speech' 284
jfruh writes: "You will probably not be surprised to learn that Chinese search giant Baidu censors a wide range of content, particularly political material deemed to be pro-democracy — and does so for users everywhere, not just in China. A group of activists filed suit against Baidu in New York for violating free speech laws, but the judge in the case declared (PDF) that, as a private entity in the United States, Baidu has the right to provide whatever kind of search results it wants, even for political reasons."
In other words... (Score:2)
Corporations are people. And people have a right to free speech, right? Which, in the case at hand, is a right to censor. Right?
Well, no. Corporations are legal fictions, and coporate personhood has gone too far.
Corporations are nothing more than a piece of paper, an act of incorporation, and should be treated as such.
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but even if corporations had no individual right (which they should not), I still would support their freedom to choose to return whatever the hell they want in search engine. Even if that corporation had some racist or religious bias in results it wanted to return.
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If one doesn't agree with the censorship Baido does one can simply _not_use_it_.
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Corporations don't go to prison for violating censorship laws. The members of the group, employees, owners, and members go to jail. They are the ones who have their assets taken.
That last bit would be a lot more persuasive if it weren't for the concept of limited liability. The whole idea of corporations owning assets, signing contracts, etc. is that the owners of the corporation are to some degree insulated if the corporation "does" something such as breaking a contract that could lead to the loss of those assets--but it really ought to work both ways. As things stand right now, the privilege pretty much only seems to go one way.
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It can't work both ways. The government can't say "sure, you can have limited liability, something only the government can give you and that you pretty much need to run a business, but in exchange, you must give up some of your Constitutional rights". That's basically the definition of an unconstitutional condition.
Or in other words.... (Score:3)
Corporations are nothing more than a piece of paper, an act of incorporation, and should be treated as such.
Agreed on that point, but that leads me to the opposite conclusion. Individuals pursue values through institutions. It is the underlying right of the individual employees, workers, owners and executives that give the association of people that collectively we call a corporation the same rights as the individuals that are in association with one another. Call it whatever you want, a corporation or a knitting group, it is the rights of the individual to associate and retain their individual liberty both
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Something's been troubling me recently about the whole "corporations are people" thing. If corporations are people, what's to prevent corporations from running for public office? Suppose a corporation was founded in the US at least 35 years ago, could that corporation run for President? It's the logical (and frightening) conclusion to the "corporations are people" argument. How long until the companies stop merely buying candidates and instead BECOME the candidates?
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So if the New York Times publishes an article critical of the government and the government responds by seizing their printing presses, that's Constitutional in your view because the New York Times is a corporation -- nothing more than a piece of paper?
So you can report what you want under free speech (Score:3)
Slippery Slope.. or is it? (Score:5, Informative)
Not so simple, though: Baidu is a private company here in the U.S., even if it's blindingly obvious it's 100% driven by the Chinese government/Chinese communist party (same thing, really) and as such they can provide whatever search results they want. Same would go for Google, or Yahoo, or Bing, or whoever -- the caveat being that if, say, Google decided to start censoring search results to the extent Baidu does, then Google would be finished as the de-facto search engine here in the U.S. However: Nobody is forcing you to use Google, Yahoo, Bing, Baidu, or any other search engine here in the U.S. Even if you're a Chinese National living here in the U.S., unless the Chinese communist party has someone standing there with a gun to your head, you're free to NOT use Baidu, just like you're free to NOT use Google, Yahoo, Bing, or any other search engine, too. Don't bring me your "We don't REALLY have a choice" crap, either, because you do, even if you don't like the choices you have. Also, finally, someone else could always start up their own search-engine company if they think there's a niche to fill, and they could make a gigantic point of how they censor none of the results -- and they might even unseat everyone else in the process.
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So it is not just
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Wong, wrong, wrong. You have a right to not be punished by the government for saying something. You do not have, and have never had, the 'right to get your message out'. The very idea is absurd.
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Do not let government define "free speech" (Score:3, Insightful)
This ruling makes sense when you consider the alternative:
Government would have to police each search engine to make sure it was permitting full free speech.
Then, the potential for abuse is huge. Government could simply drop something -- like, say, far-right information -- off the list and allow it to be censored while claiming it was legally not censorship.
Government could also force search engines to incorporate other information that is favored by government, and penalize them if that information didn't make it high in the rankings.
We don't want government in the business of determining what "free speech" is in legal terms.
They do anyway (Score:2)
Like it or not, the government does exclude some speech from being "free". Threats and defamation are excluded, as is the ever-popular "shouting fire in a crowded theater". Even obscenity can be limited, though fortunately that exception has been narrowed in the past few decades.
Not that I want these to be the camel's nose under the tent. I'm just pointing out that the potential for abuse is already there. I think it's perfectly reasonable that you can't threaten somebody and call it "free speech", but it s
well... (Score:2)
hasn't the tech party line always been "governments can't censor us, the internet sees that as damage and routes around it" or something like that?
it sure looks like governments are doing a pretty good jobs of destroying that meme, be it Turkey or China...or even perhaps the NSA/US.
and of course i *know* vpns and proxies can be set up...i wonder how many typical chinese citizens know how to set those up tho.
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Not a monopoly, not a problem (Score:2)
There's nothing wrong with this decision. In fact, it's the right decision. As long as there is healthy competition, there's no reason any arm of government should be able to force a business to operate a certain way, outside of actions or inactions that are ostensibly illegal or abusive.
It's not like there aren't a thousand other capable search engines you can use instead.
I agree (Score:2)
This is pretty straightforward. On the principle that I do not believe in slavery, I do not believe that anyone has the right to tell Baidu what to do, including what search results to return. Really this is a very weak attempt by these activists, and they are violating their own principles by trying to restrict the freedom of others.
Web servers are abodes (Score:2)
For me, in my years on the internet, I've come to believe and stand by the premise that a web server or ANY service offered to the public internet from your equipment is an extension of your home. People who visit are guests of your service. They have to follow your rules or they will be told to leave. It's very simple and I think it rightly extends to businesses operating websites.
This ruling is no different than my operating a gaming forum and asking people not to post about knitting, as it's not the t
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That's how I see it too. I run a computer help forum and have a off-topic forum area for non-computer-help issues. Still, we'll delete posts and ban users based on posting spammy content (e.g. first time poster coming in making 5 posts trying to sell a product), bad behavior (trolling comments/racist comments/etc), posting illegal items (if you post a link to some warez site, your post will be removed), etc. I'm not infringing on these posters' free speech rights because they are essentially guests on my
If you don't like it, don't use it. (Score:2)
There are a lot of other search engines out there. It doesn't bother me that search engines I don't use wouldn't give me results I want.
If somebody wants to set up a search engine that caters to a certain demographic (members of a religious group, political persuasion, age group, whatever) then people are free to use it and the rest of us are free to not use it.
Did someone forget to mention.... (Score:4, Insightful)
The founding fathers of the United States of America were NOT supporters of Democracy as they knew from history and experience that Democracy leads to Oligarchy. Instead they founded a Republic!!!
Perhaps the first post with a long list of replies should learn about US founding history.
... should've been laughed out of court, really. (Score:2)
Maybe next someone should sue Wikipedia for declaring their article non-notable. That's censorship.
Private companies have no obligation toward any kind of "freedom of speech".
Wow! (Score:2)
Somebody really opened up a can of dumb in this room didn't they!
What am I replying to? Everything!
Admission of guilt (Score:2)
When a government tries to censor something, it usually means two things:
Re:The Founding Fathers are crying.. (Score:5, Informative)
Why? The constitution only regulates the US government. It doesn't regulate neither the Chinese government nor private entities inside or outside the US.
14th Amendment (Score:5, Informative)
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
The US Constitution requlates state goverement since the passage of the 14th Amendment. A New York free speach law can not limit the speach of the owners and employees of Baidu. They are allowed to have bias.
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But even then state governments still manage to be different from private entities, which is what this Baidu ruling was about.
Baidu may be evil and its policies odious, but (since it isn't a government) it apparently has a right to be so.
Of course, we do also have rulings that things like anti-discrimination laws can be enforced upon businesses, so clearly some limitation of the businesses' free speech is allowed. I could see this ruling being overturned on appeal if the argument is made that allowing a bus
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No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
The US Constitution requlates state goverement since the passage of the 14th Amendment. A New York free speach law can not limit the speach of the owners and employees of Baidu. They are allowed to have bias.
They are allowed to have Bias if they admit they have Bias. If they claim not to have bias, or not to be sensoring results, they may be committing fraud / violating truth-in-advertising laws.
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The keywords are "state" and "law". A company is neither a governmental state, unless it takes government money nor has any law been passed. Note also political discrimination by employers is not covered by laws such as EEO Act.
Re: 14th Amendment (Score:5, Insightful)
"Should"? Says who, you? If I want to launch a web site with a map proclaiming that Nova Scotia is now Kevinland, you think I should be forcibly prevented from doing so?
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Based on what?!
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It's obviousness it should be KingMotleyland.
Re: 14th Amendment (Score:5, Insightful)
Why? The free market applies. If you don't like the goods one merchant supplies, find another. It is not as if search engines are state licensed or limited. It seems to me that by your logic, you can sue any publisher who decides not to publish your crappy book on the ground of inhibiting your free speech.
Re:14th Amendment (Score:4, Insightful)
If you bought such a map, providing you didn't muck it up, in most places you could seek a refund.
There are over two centuries of 1st Amendment jurisprudence that backs the notion that private interests have very wide latitudes in free expression.
Re:14th Amendment (Score:5, Informative)
So use a different search engine. Problem solved.
Obvious next step: "But what about people in China?"
Obvious next answer: "The US Constitution, and it's amendments, do not apply to citizens of another sovereign country."
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"The US Constitution, and it's amendments, do not apply to citizens of another sovereign country"
I disagree, If they are on US Soil then yes Constitutional protections apply. Why you say, because the Constitution does not define peoples rights, it limits the governments power. Yes it only applies in America but it applies to ALL in America.
Remember according to our governing philosophy our rights are not granted by the government but are innate.Thus ALL people have them not just American Citizens.
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it applies to ALL in America.
But rights work both ways. You have a right to (limited: you can't say anything you like) free speech in america - but I, and anyone else, also have the right to not listen, to disagree with you, to think you're talking b/s and definitely we all have the right to not repeat some or all of what you say.
Provided a website doesn't falsely attribute something to you (or worse: to me) that wasn't what was said it can, just like newspapers do all the time, choose what to publish and what not to. If that changes
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Like a "map" a "search engine" should not be biased
I would argue that the whole point of a search engine is to be biased. Google chooses to make their bias "what we think you really wanted plus some ads to earn us money". Baidu makes their bias "The results the Chinese government would prefer that you see".
Of course, these are my approximations of what their biases are and do not necessarily reflect their actual biases.
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That's certainly one view of how search engines should work, and there are search engines that share this view. But the most popular search engine in the world, Google, does not share this view, and its commercial success suggests that that's not what most people want. Google biases search results based on characteristics of the person searching to try to get them the results they are personally most likely to be interested in. This tends to produce results people consider more relevant, but it does not pro
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In China, yes. The US Constitution and US law do not, of course, apply in China. Who in the US is being *forced* to use Baidu? I'm not--in fact, I never use it. Nobody I know is forced to use it. Who in the US is being forced to use it?
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And the biggest giveaway is that he doesn't question if the US constitution can be imposed onto someone outside the US borders.
what? (Score:2, Insightful)
It can most certainly be applied to a business operating under the jurisdiction of the United States, the same way Google is expected to conform to the Chinese government's censorship requests to operate within their country. That's not American centrist thinking, that's just a logical way to assume businesses operate.
Re:The Founding Fathers are crying.. (Score:4, Insightful)
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You mean polar bears don't really drink Coca Cola?
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You could, oh I dunno, not use this service.
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Well, no, it's not, because it's totally meaningless. What's "best"? "Best" is meaningless until it is associated with some set of standards. It can mean the way that's best for the Chinese government, in which case it's totally true.
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Right, like Papa John's claiming their pizza is "better" when it's basically the same as every other pizza. What a bunch of cheaters and liars they are.
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As China is sovereign, they cannot be brought to bear in anyone's court.
If you seek to penalize companies or people that kowtow to same, that is the job of the president and Congress, not the courts, via diplomacy or military.
Our general policy for 50 years has been encouraging economic (and other) freedoms. Is it working? What are alternatives?
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Tthey could be barred from operating in this country. That isn't much but it is something.
Re:The Founding Fathers are crying.. (Score:4, Informative)
So, your solution to Baidu censoring searches to to censor MY access to Baidu?
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Well, THEN the Founding Fathers should be spinning in their graves. Heck, I think we can install a turbine on Jefferson's grave alone and get power for the entire northeast.
I find it kind of funny (and I find it kind of sad) that US-ians will go all 'free speech' on China while they themselves can barely get on public transportation without the US gov breaching several other aspects of their constitutional rights in some sort
Re:The Founding Fathers are crying.. (Score:5, Insightful)
The whole point of freedom of speech is to allow people you disagree with to say (or write) what they want. If the westboro church can protest soldier funerals, this ruling should be a no brainer. The search engine is writing the search results in a biased way but the judge has ruled that is free speech. Fine with me... now back to searching on google.
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I disagree. They are applauding that the law they wrote, is being interpreted exactly as they wrote it.
The First Amendment applies to government censorship, not private entity censorship.
Don't like the private censorship? Don't use that search engine. There's plenty of alternatives, one of which has become it's own verb, and another is trying to through terrible marketing.
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You should actually read the first ten amendments sometime. The way they are written
Congress shall make no law...
When the founding fathers wrote this, they intended to for the states to be able to pass laws restricting freedom of speech and religion.
Nonsense. The states have constitutions of their own which guarantee the rights of their citizens. The Constitution of Massachusetts, for example, was adopted seven years before the US version and in many ways is even more protective of individual rights than the federal.
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Yes, but that was considered the state's business, not subject to regulation by the US Constitution. In fact, when the Constitution was written, one of the main reasons the Bill of Rights prohibited Congress from making any law respecting an establishment of a religion was that the states wanted to be sure that the new Federal government didn't interfere with *their* establishment of a relgigion; there was state funding of the Anglican Church in some southern states, and of the Congregational Church in New
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> If I run a website, I'm not allowed to control or limit what comments and content other people put on it?
Of course you are, but only if you actually want to. If the government tells you to control it or else they'll drag you through audits/courts/etc until you do then that's a problem.
Granted, said government in this case is the Chinese, so I'm not surprised the case was thrown out but I can understand why it was brought.
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Corporations have grown to a size that the power and influence it has over the public is comparable to government, if not surpassing it.
What good is the first amendment if private entities providing essential information services to the public can effective bypass the right for people to be heard?
Re:What. (Score:5, Insightful)
Because telling businesses what information they must provide to the public is the same as the old unconstitutional "fairness doctrine". Would you like to require that Rachel Maddow have Sean Hannity on her show every night to rebut her points? If a search engine is providing biased results, don't use it. Providing FALSE information could be a problem, as that would be libel.
I don't understand why I have to explain this on a forum that's populated by teens and adults. You can't use your rights to infringe on others' rights.
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Baidu has an almost non-existent marketshare outside of China, so basically whatever they do don't affect the US population much.
However, let's suppose it was Google (with it's marketshare in controlling access to information) censoring result due to political reasons - lets say they blacklisted "Tea Party" or "Gay Marriage" from their searches. Ok, you say Google isn't a monopoly, so what about Microsoft in the late 90s. What if they implemented a filter in IE that stopped those words from being displayed
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What if the private entity is the only choice for the people (e.g. a monopoly)? What difference does it make that the private entity, or the government is doing the actual censoring?
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Where does this right you mention come from? There's a right to free speech/expression, but where does the right to force another person or business to carry your speech come from? If I can force you to carry my speech, can I also force you to STFU?
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"Where does this right you mention come from?"
It comes from the right to free speech. A right to free speech has absolutely no point if that speech can't be heard.
This is not a requirement that the government supply me with a bullhorn... but it is a restriction on government, in that government is absolutely prohibited from preventing speech from being heard.
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The key word here is "government." Companies and individuals can restrict this right on their systems as they see fit. For example, spammers used to claim that they had a "right to be heard" which (in their opinion) meant that you had to allow any comment or e-mail get through. In their view, spam filters and the like infringed on their First Amendment rights. The big hole in their argument, though, was that it wasn't government that was blocking them, but companies and individuals. These entities have
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The same place we get all our rights (Score:3)
The right to force a business which has sole control (in China) of access to the world's news and uses that access to control the populations' perception? That right comes from our ass. Same as the rights to free speech, freedom to assemble, freedom not to be killed like a dog on the street if some business deems it necessary. There are no "rights" other than those we seize for ourselves, never have been. Rights are artificial and we buy them with intelligence, sweat, and blood.
We do not derive our rights f
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I (and any other private entity) have no obligation to listen to you, or anybody else. I can bit-bucket your phone calls, text messages, forum posts, emails, etc. with impunity, with absolutely no legal jeopardy.
The Government has the obligation to listen to your uninformed idiotic whining, however, if it is conveyed in a capacity as outlined in the revised United States Code, or the legal system of your local jurisdiction.
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I fail to see the relevance. No wait - I do. If they're enforcing free speech, that means they can't regulate what a person (or corporation) can say. Or selectively not say of their own volition. Does Freedom of Speech imply that we force people/corporations to say things that they choose not to? Regardless of their motivations? If I run a web-site and there's an article somewhere that says, "China censors nothing!", do I have to provide a link to it despite the fact that I personally think it's biase
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What good is the first amendment if private entities providing essential information services to the public can effective bypass the right for people to be heard?
I fail to see the relevance. No wait - I do. If they're enforcing free speech, that means they can't regulate what a person (or corporation) can say. Or selectively not say of their own volition. Does Freedom of Speech imply that we force people/corporations to say things that they choose not to? Regardless of their motivations? If I run a web-site and there's an article somewhere that says, "China censors nothing!", do I have to provide a link to it despite the fact that I personally think it's biased?
I suspect that it depends on what your market share is, i.e. whether you are a "gatekeeper" or not. If you are just some two bit website that's one of a thousand others then the answer is that you can present whatever point of view you want and ignore others. If, however, you are Google, you handle 95% of all internet searches and you don't agree with, say the US Republican party's point of view so you start purging all links from your search results that represent a Republican point of view that you don't
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If Google was, say, a public utility then I'd back you up. But they're not. Filtering or selectively promoting things is entirely within their scope. Their rights don't change because they're popular.
However, if they're publicly viewed as abusing those rights, they very well may become much less popular.
Re:What. (Score:5, Insightful)
Freedom of speech doesn't mean I have to give you my microphone.
And if you own the only microphone? (Score:2)
In China is there is only one microphone. Sucks to be the rest of the universe, I guess.
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Corporations have grown to a size that the power and influence it has over the public is comparable to government, if not surpassing it.
No, you just don't know your history. Large corporations have long been able to compete with sovereign states in wielding economic, military, and political power. The American Revolution was rebellion against the East India Company nearly as much as it was against King George III.
The founding fathers were perfectly aware of the effects of megascale corporatism. Even the
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Maybe I should have added, in the US.
As big part of Independence was to reject corporations like EIC and the Hudson Bay Company which operated private armies sanctioned by the host nation (such as the British or the Dutch).
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... yeah, what stoner thought there was a case here?
Perhaps people who've seen how much grief Google are given over their results, which are nowhere near as biased as Baidu's?
http://www.google.com/search?q... [google.com]
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Awesome.
But please find one that involves a US court.
Re:Congratulations! (Score:4, Insightful)
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You seem to be suffering from a common misconception. "Freedom of speech" does not mean I can go into any newsroom and demand that my thoughts and views be broadcast to all local viewers/readers. As a private entity, they have always had the freedom of speech to choose what message they send, and being able to force my way in would mean that my freedom of speech would be trampling over theirs. I'd hate to be in a world where people with a troll mentality could use their freedoms to render whole segments of
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Fine, let's look at your version of "freedom" where the Government now requires every website everywhere to continue to post forever every single word submitted to it. For example, Johnny Q. Racist posts some nonsense about $RACE being intellectually inferior to the NAACP web site forums? Too bad, NAACP; you've got to continue showing that because this fucking idiot says so in his completely incorrect interpretation of one of the most elegant laws ever passed by man.
Wouldn't being legally forced to keep t
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Even worse, every spam comment ever submitted anywhere would need to be kept online lest you infringe on the submitter's freedom of speech. What's that? Some porn site managed to post a comment on your "family friendly - just for kids" blog? Sorry, but you need to keep the link to nasty-horrible-retina-burning-stuff.com because you can't infringe the commenter's freedom of speech.
Imposing the government's freedom of speech obligations on people would be a huge disaster.
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I've eaten chinese food and italian food in NYC. They use tomatoes very differently.
And that's about as on topic as what you wrote.
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It is because that they think that they have a moral high ground to do so. My argument is that I doubt it, that there are serious social, economical and other problems at the USA as everywhere else.
My point is that there should be peaceful international cooperation based on equality.
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I saw areas in the US cities where people are just hanging en mass on the streets days long, obviously unemployed. There are also a lot of homeless people, incredibly many.
Certainly, there are well-to-do communities, even gated communities. But it is not like the USA has nothing else to do to improve inside its own country and just has to concentrate on China and the other bad apples.
Perhaps, it shal
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You have not provided every possible rationale for your statement, nor all of the supporting references.
I accuse you of not providing all of the info, and therefore attempting to manipulate people.
You are therefore, by your own logic, anti-democratic, simply wrong, and a fraud.
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And you'd likely see a mass exodus of Comcast customers to another provider.
I don't think that's going to be very viable for Comcast to continue operating and making money. Do you?
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Actually, you might not for one important reason:
ISPs are in a position where they are often the only provider in the area.
In my case, Time Warner Cable is my only wired broadband possibility. If Time Warner Cable decided tomorrow that Netflix would be blocked, they wouldn't have a massive exodus since we wouldn't have anywhere to go. What they would have, however, would be a PR and legal disaster. They could be sued by subscribers and would have many, MANY negative article written about their actions.