Most of us are aware of the freedom of speech protection provided for in the First Amendment of the Constitution.

Some of us know that courts have held that such freedom extends 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, and then their identities potentially can be unmasked.

But what about the freedom not to speak? Let's explore that concept as it came up in the recent context of certain search engines deciding not to run specific advertisements as requested. A federal judge in Delaware was called upon to decide whether the searches engines had the freedom not to post the speech of others.

In the case of Langdon v. Google, et al., the plaintiff sued Google, Microsoft and Yahoo! for their failure to run advertisements, as requested, relating to the plaintiff's Web sites that purportedly exposed fraud perpetrated by North Carolina government officials and that supposedly delineated atrocities committed by the Chinese government. The plaintiff argued that the refusal of the defendants violated his First Amendment and other legal rights.

In making his First Amendment argument, the plaintiff claimed that Internet search engines, while maintained by private companies, in effect are public forums, comparable to malls and shopping centers, allegedly subject to the First Amendment.

The judge blew that argument out of the water, holding that the plaintiff failed properly to 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" that were required to protect the plaintiff's freedom of speech.

In so ruling, the judge took care to note 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.

Where the judge's decision is most interesting is the part where he ultimately holds 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 for them in which they had no choice but to post the content demanded of them by third-parties. Over time, the search engines and ISPs would lose their ability to preserve the identity of the sites they are seeking to maintain and at times they might have to post content that they deem objectionable and perhaps contrary to their missions or views. This certainly would abridge their freedom.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com