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Google Ads Are a Free Speech Issue 148

Posted by kdawson
from the free-as-in-not-speaking dept.
WebHostingGuy writes "A US Federal Court recently ruled that ads displayed by search engines are protected as free speech. In the case at issue, Yahoo!, Google, and Microsoft were sued by an individual demanding under the 14th Amendment that the search engines display his advertisements concerning fraud in North Carolina. The Court flatly stated that the search engines were exercising their First Amendment right of free speech in deciding what ads they want to display."
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Google Ads Are a Free Speech Issue

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  • Seems to me it would have been association, not speech, but I am not a Constitutional lawyer.
    • Re: (Score:3, Insightful)

      by Stormx2 (1003260)
      Well think of it this way:

      If you were working in a shop, and someone walked in, picked up a coke, and walked to the counter to buy it, you'd serve him, right? But you'd still have the right not to serve him, if he's being anti-social or smoking in your shop or something. Something *you* don't agree with.

      The right to free speech is also the right to not say something if you don't beleive what you're saying. This works on the same basis. It may be discriminating against a group, but that group exists be
      • Re: (Score:3, Interesting)

        by caseydk (203763)
        If you were working in a shop, and someone walked in, picked up a coke, and walked to the counter to buy it, you'd serve him, right? But you'd still have the right not to serve him, if he's being anti-social or smoking in your shop or something. Something *you* don't agree with.

        Actually, this right has been stripped from us in most circumstances. If you choose not to serve someone, you're going to get sued for discrimination based on whatever...

        Personally, I think anyone should be able to refuse service to
        • ISTR that News of the Weird mentioned a woman active in the NAAWP or KKK who was denied advancement because she was black; I didn't see how that one ended.
    • by ubuwalker31 (1009137) on Wednesday February 28, 2007 @09:09AM (#18180578)
      This area of law is usually described as the "negative right to free speech"; namely, the right not to be forced to speak.

      For example, in Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme Court overturned New Hampshire's motor vehicle regulation that required motorists to display license plates declaring "Live Free or Die". The court held that a person can not be forced by the government to display an ideological message on his private property. In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
      (1943), the Supreme Court held that students did not have to recite the pledge of allegiance, since the government could not force a student to declare a belief.

      Lastly, a private individual is not subject to the requirements of the 1st Amendment. A private individual is not the government. While the government can't force me to say anything, I might take on contractual obligations to make statements. However, if I fail to make those statements, a court would not force me to make those statements. It would hold me liable for money damages, unless it could find a very compelling reason to make me speak.

  • by LainTouko (926420) on Wednesday February 28, 2007 @08:07AM (#18180026)
    Good to see the human rights of search engines being protected.

    Ah, wait...
    • by ack154 (591432) on Wednesday February 28, 2007 @08:13AM (#18180084)
      Think of the search engine's children!
    • Re: (Score:3, Funny)

      by quixote9 (999874)
      Yeah. They're way more important that the human rights of humans. Money doesn't talk. It swears.
      • Corporations are merely groups of people associated in order to get something accomplished. They may or may not be for-profit, publicly traded, etc. If you treat the corporation differently a group of people you are restricting the rights of people, interfering with property rights, and so on. A corporation is NOT a disembodied entity separate from the people that participate in its operation.
    • Re: (Score:3, Insightful)

      by UbuntuDupe (970646) *
      I know you're trying to be funny, but I see this all the time about how, "duh, how can a corporation have rights"?

      Individuals working in the service of that corporation have free speech rights, correct? So every time you see "Google's free speech rights", replace it with "the free speech rights of all individuals working for Google". Now, what's the problem?

      Remember, a forest *is* just a bunch of trees.
      • by rfc1394 (155777)

        I know you're trying to be funny, but I see this all the time about how, "duh, how can a corporation have rights"?

        Uh, for your information, Corporations do have rights. Ever since the 19th century when the courts ruled that a corporation is entitled to the same rights as a person.

        • What does that have to do with my post? I was explaining the contradiction in claiming that humans but not corporations should have rights, not the current legal status of either.
          • by spun (1352)
            Corporations do not need special rights over and above those of the individuals comprising the corporation. The individuals already have their rights, why does the group need additional rights? That's the way it stands now, and I don't think it makes sense.
            • And I can understand why people would object to "special rights over and above those of the individuals comprising the corporation", but when the right in question really is equivalently expressible as the rights of individuals (as seems to be the case with free speech), it seems like a case of "much ado about nothing", to use a cliche that needs to die.
              • by spun (1352)
                One problem, as I see it, is that the corporation acts as a shield to the individuals. Individuals operating as a corporation are in many cases shielded from liability.

                Another problem is that a group is more than the sum of its parts. We recognize that, although a government is made up of individuals, it is more than the sum of those individuals and must be treated differently. It is far more powerful, and far harder to hurt than an individual is, so its power must be limited. Why do we recognize that one g
                • I understand all that, but my question is about free speech specifically. What rights does a "corporate free speech" right include that a "free speech right for all individuals" does not?
                  • by spun (1352)
                    The right to have the corporation sued for the speech instead of the individual making the speech.
      • by LainTouko (926420)
        The problem is that you're taking a fundamental freedom and making it into a tradeable commodity.

        Or in more detail, the principle of free speech has two purposes; to make sure that good ideas or important bits of information don't end up getting supressed, and more to the point, simply to allow people to speak their minds, because society exists for the benefit of individuals, and people feel bad if they can't say what they think.

        Allowing "free speech" to corporations achieves neither of these. This isn't m
        • Or in more detail, the principle of free speech has two purposes; to make sure that good ideas or important bits of information don't end up getting supressed, and more to the point, simply to allow people to speak their minds, because society exists for the benefit of individuals, and people feel bad if they can't say what they think.

          That may be *your* reason for supporting free speech, but it isn't "the" reason.

          If a corporation can't say certain things, none of the individuals working for it will feel bad
      • Re: (Score:2, Interesting)

        by kocsonya (141716)
        Corporations has rights like humans. The problem is that corporations do not have responsibilities like humans. When a corporation creates a faulty product that kills people and they know it and don't fix it for financial reasons, that's murder for monetary gain. In some US states, as far as I know, that draws the death penalty. Now the corporation as an entity shields all of its C*O-s from responsibility but then the corporation itself is not punished according to its crime: it gets fined at most. Why not
        • by m0rph3us0 (549631)
          If a person creates a product they fall under the same rules as a corporation. And in product liability issues corporations are generally held to a higher standard than individuals because the likelihood of recovering enough money from an individual to cover your legal costs are less than those of an individual. Thus suit is not usually brought against individuals in the same way as companies.

          It would be highly unlikely that in the event that I served my neighbor coffee that was much too hot that a jury wou
  • Who cares? (Score:5, Insightful)

    by babbling (952366) on Wednesday February 28, 2007 @08:08AM (#18180036)
    The outcome of this case should've been obvious from the very beginning. Of course Google, Yahoo, Microsoft don't have to display his ads. It might be in their interests to display them since he will pay them for it, but why should they have to? He's still allowed to spread his information elsewhere.

    "Wahh wahh... Google/Yahoo/Microsoft won't display the ads I want them to."
    • by Billosaur (927319) *

      It's the same as if someone wanted to put up something on a billboard or on the side of a bus -- the company that owns that space is not required to put up something just because you have the money and you want them to. The major search engines don't want any part of this; that doesn't mean he can't start his own web site or find some other place that will take his material and his money. As it said in the article, this guy's a whiner.

  • Surely there has to be some distinction between 'Free Speech' and blatantly lying in advertising (what we in the UK call false advertising).

    Is there an equivalent rule in the US, or can any company invent any old rubbish about their product and have the lies protected by 'Free Speech'? Obviously there's more to this case than that, but isn't the judge setting a dangerous precedent?

    Get ready for 'there's no such thing as Climate Change' adverts sponsored by Smogmaker Industries, followed by: 'Of course smoki
    • Is there an equivalent rule in the US, or can any company invent any old rubbish about their product and have the lies protected by 'Free Speech'?

      No, we pretty much have the same rule as you do but since it's rarely enforced, people like Kevin Trudeau can continue to peddle crap which claims to 'cure' dieting even though by claiming such, he is required to submit his products for testing to verify their claims. Since you're not from the U.S., any product which claims to cure an affliction must be test

      • by kabocox (199019)
        See this link [go.com] and this link [salon.com] for what a con artist this guy is and how he's endangering peoples lives with his lies as well an analysis by a doctor [infomercialwatch.org] about his claims.

        Con artists/medical quacks are one of the few selection pressures that we have left in our society. This guy helps select against stupidity! We should be protecting his business from completely disappearing so the stupid will buy into his medical claims and remove themselves from the general population.
      • by wpegden (931091)
        An exception to FDA rules are a homeopathic medicines [homeowatch.org], which are subject to essentially no regulation so long as they are intended to treat "minor" conditions. Homeopathic medicines are the ones where you dilute as much as possible some "agent" that would be thought to cause a similar condition. So, for example, for insomnia, you take a pill that contains super-diluted coffee. No, I'm not making this shit up, go to your nearest whole foods and check at the homeopathic medicine section. On the back of th
        • by moeinvt (851793)
          " . . .for insomnia, you take a pill that contains super-diluted coffee."

          I obviously knew that the stimulant effect of coffee is diminished as you dilute it, but I had no idea there was a threshold at which it would actually start to put you to sleep.
          • by wpegden (931091)

            " . . .for insomnia, you take a pill that contains super-diluted coffee." I obviously knew that the stimulant effect of coffee is diminished as you dilute it, but I had no idea there was a threshold at which it would actually start to put you to sleep.

            Exactly. This is how ridiculous homeopathic "medicine" is. I know this all sounds like a joke, but go to your nearest whole foods/whatever and look in the homeopathic section. It's freaky. And they charge you tons of money for the stuff too (have you h

      • Re: (Score:2, Interesting)

        > people like Kevin Trudeau can continue to peddle crap which claims to
        > 'cure' dieting even though by claiming such, he is required to submit
        > his products for testing to verify their claims.

        It's ironic you use Kevin Trudeau as an example. The FDA (or some agency) denied him from ever selling supplements or other medical devices again, precisely because of constant fraud on his part.

        [i]This is why he's now selling books rather than supplements and whatnot.[/i] He can get around the fraud using f
      • MegaMemory! [wikipedia.org]

        Clearly, he has a pattern of fraudulent behavior.

        I've been following Kevin Trudeau for a long time -- for exactly the reasons the parent post alluded to. The guy is a crook. Plain and simple. And I say that because of this fact: he knows what he is selling is "junk".

        Kevin is a smart guy, make no mistake. But like any tool, smarts can be used for good and evil. Kevin chose evil.
    • Yes, there is. In fact, there was just a big case concerning false advertising a couple months ago. Some of those "magic super pill" weight-loss-in-a-bottle companies were fined massive amounts of money and told to pull their commercials and never show them again.

      However, this case isn't about false advertising, it's about search engines refusing to advance one idiot's personal views under the guise of advertising. So the judge is using the First Amendment to reinforce the idea that said engines don't have
    • Is there an equivalent rule in the US, or can any company invent any old rubbish about their product and have the lies protected by 'Free Speech'?
      That's not a free speech issue. That's some sort of fraud issue.
    • It is actually not illegal to advertise false claims ... although you can be punished for fraud if you are doing something like intentionally selling a non-functional product.

      For example:

      I could advertise that apples cure cancer, and it would be fine...

      However, if an apple orchard were to advertise that their apples cure cancer, and the apples didn't cure cancer they would be guilty for fraud... The crime is not claiming that apples cure cancer, but selling people apples with the understanding that they cur
  • by gravesb (967413) on Wednesday February 28, 2007 @08:22AM (#18180140) Homepage
    There was a case about an enivornmental group suing a power company to put an advertisement in the power company's bills. The court ruled that the power company didn't have to include the advertisement, even at no cost to themselves, because it would force them to either contest what was said in the ad, or implicitly agree with it. I don't see how this is any different, except it involves that internet thingy. Maybe a lawyer looking to make a quick buck?
    • Maybe a lawyer looking to make a quick buck?
      I'm going to guess that any lawyers involved got their bucks and left. [wikipedia.org]

      Oh, and it's only censorship if the bugmit does it.
      If you or I (or google) choose to not say something, that's free speech.
    • So unless it's _explicitly_ stated otherwise, if a company runs an ad for some product/service on their service/product, it's an implicit endorsement of whatever is stated in the ad? That somehow doesn't seem right.
      • by gravesb (967413)
        Why not? They are taking the advertiser's money and providing a platform for the message. It may not be reality, but its a sufficient argument for a lawyer to pitch it as a sufficient reason why the power company shouldn't be forced to run the ad.
    • by Eivind (15695)
      Nope. The plaintiff represented himself (and ain't no lawyer, if he had been he'd have seen from the get go that this would never get off the ground)
  • Interesting (Score:5, Interesting)

    by Bigbutt (65939) on Wednesday February 28, 2007 @08:45AM (#18180346) Homepage Journal
    The guy has two websites, one complaining about a North Carolina polititian and the other about China. He submits his ads to Google, Microsoft, AOL, and Yahoo who either ignore him or refuse to run the ads. Google and Yahoo even delists his sites. He sues all (dropping AOL later) saying the companies are public places (like malls) and he should be allowed free speech. He also says there's a common law contract such as between innkeepers and guests.

    The judges take each item and reply that it doesn't apply and dismisses each claim. Google et.al. are not Inns, Shopping Malls are private companies and not subject to free speech laws. He's not a citizen of Delaware so not applicable. No actual damages occurred so no claims are valid.

    The only charge left is breach of contract between Google and this guy.

    The interesting thing in general that I learned was that judges and lawyers are basically researchers. They take each point and find case law that's already been rendered and reference it in their judgements. The case is actually more interesting reading because of that.

    [John]
    • by deblau (68023)
      The law is actually pretty interesting. I'm a former back-office heavy coder, who switched to tech law. It's really an eye opener coming from a hard science background. Most of the time in law, there are no right answers, because there are always at least two sides to every issue.

      For all of you out there who think the law is easy or understandable, I like to make an analogy: you wouldn't think a lawyer could write good code, so why would you think a coder could represent himself in court? Even lawyer

  • So basically, it's OK for any of us that own a website to allow any kind of advertisers we want, but if you're a large company like Google or Microsoft, you all of a sudden have to be charity? I realize it's fashionable for people to attack THE MAN!!!11, but they have rights in this just like everyone else. Besides, they can't take on another advertiser. They're too busy showing full sized banners for those stupid spyware-filled 3D IM things, among other crap.
    • by itsdapead (734413)

      So basically, it's OK for any of us that own a website to allow any kind of advertisers we want, but if you're a large company like Google or Microsoft, you all of a sudden have to be charity?

      Yes.

      Capitalist society relies on free competition to compel businesses to adopt an "enlightened self interest" approach - i.e. you are unlikely to turn away business (that will probably end up going to a competitor) without a good reason. This is all fine and dandy until a few big players reach such a dominant posit

      • Capitalist society relies on free competition to compel businesses to adopt an "enlightened self interest" approach - i.e. you are unlikely to turn away business (that will probably end up going to a competitor) without a good reason. This is all fine and dandy until a few big players reach such a dominant position that they have a captive market and can give the finger to competition. Hence, yes, the big dogs need to be held to a different set of standards.

        And that is why the FCC gets to regulate the airwa
      • Re: (Score:2, Insightful)

        by superbus1929 (1069292)
        How does that apply to this situation? If one company didn't want to take this person on, then the other two could have. Since all three did, yes, that removes his options, but you know what? According to our free trade laws, they all have a right to refuse service. If that's a problem, he can go with a smaller firm. The firm is too small to make a dent? Their fault, not Google's or Yahoo's; Rome and Google weren't built in a day, you know.

        To have a capitalist market, you need to have controls, but you ca

        • by itsdapead (734413)

          To have a capitalist market, you need to have controls, but you can't have it set up so that it's selective; you can't just selectively pick on the big companies because they're big.

          No, you selectively pick on the companies that grow so big that they start to rise above market forces. Its quite hard to pick on monopolies without also picking on big companies. If you apply the same rules to small companies it becomes logically impossible for anybody to launch a genuinely new type of product or service.

          What

  • So Google free speech right prevents this other clown from spreading his right of free speech... I run Google Ads myself, and have looked at MSN's and Yahoo's and as far as I recall they openly state they will refuse ads for any number of reasons...hate sites, slander, adult content, etc, etc, etc...
    • Re: (Score:3, Insightful)

      by gfxguy (98788)
      No, that's the problem with how a lot of slashdotters seem to look at these cases.

      For anyone who thinks this guy's right to free speech is being violated: nobody is denying this guy his right to free speech, they're only denying him their venue to do it. There's no constitutional right to force someone else to allow you to use their venue to peddle your free speech. Period.

      Nobody is telling this guy he can't say the things he's saying, he's got his own websites that prove his free speech is alive and well
    • by Sancho (17056) *
      They aren't preventing him from expressing himself. They are preventing him from expressing himself on their website and in their ads.
    • by MooUK (905450)
      No, he still has his free speech. He just can't force anyone else to say it for him.
  • No, they are private businesses. It's almost like the "No shoes, no shirt, no service" sign pointed out repeatedly in "Fast Times at Ridgemont High".

    However, freedom of speech? Come On! Is it a political opponents free speech to display their damn ad in my front yard now...or wait, would that be ME displaying an ad for say HUSTLER on my front lawn and protected by free speech?
  • Winner! (Score:3, Funny)

    by alexgieg (948359) <alexgieg@gmail.com> on Wednesday February 28, 2007 @09:27AM (#18180764) Homepage
    Do you realize that, by this being published in Slashdot, the guy got more publicity than if he had simply been allowed to publish his ads on the three ad networks?
  • by Ron Bennett (14590) on Wednesday February 28, 2007 @09:56AM (#18181054) Homepage
    Google, Overture, and many, if not all, of the other major ad services will NOT accept paid ads, no matter how benign, from cannabis / marijuana information websites.

    And since the major paid ad services are basically an oligopoly, that leaves such objectionable websites with little to no alternatives...

    Even worse, Google, Yahoo, etc can choose to reject / demote websites they don't agree with in their free search listings too at any time...

    Freedom of speech is all well and good in the marketplace, but tends to severely breakdown in an oligopoly environment.

    Ron
  • If google now has the freedom of speech argument to reject an advertiser, I'm guessing that they now have the responsibility that comes with that speech. If one of the advertisers they allow does something wrong with their ads, it would now be much more difficult to argue common carrier, etc rights that they shouldn't be held legally responsible as well; since they approve/disapprove of the ads.
  • I understand that the search engines are private entities, and can do as they please regarding what they choose to advertise. However, I'm not entirely comfortable with private ownership of the medium used for public discourse. There are opinions which are never heard in America simply because the media is corporate owned and simply refuses to publish said opinions.

    I could care less what private entities do with their own networks, but our public discourse should not be limited to a privately-owned me

    • Yeah, they tried that. It's called "socialism". It doesn't work.

      Just because a company becomes successful doesn't mean the government suddenly owns them and gets to dictate every little thing they do or don't do. I know some people think the "Internet" is as important as air, food, water, or oil - but it's really not. There's no justification for imposing ridiculous government regulations on it.

  • by rfc1394 (155777) <Paul@paul-robinson.us> on Wednesday February 28, 2007 @10:32AM (#18181482) Homepage Journal

    The right to speak includes - outside of some very narrow exceptions - the right not to carry someone else's opinions as well. Some cases have ruled that even public transit agencies have the right to choose not to carry certain ads. Further cases have refined that such that, for example, corporations have the right to have public opinions and to make them public. But it's also important to note that a private organization that publishes material has a right (within certain limits) to decide what it will or won't carry. You can't carry ads which are themselves illegal, and conversely, many cases have held that a newspaper has the right to choose not to carry certain materials if they don't want to.

    A state law in Florida attempted to do for newspapers what the Fairness Doctrine [wikipedia.org] did for television stations: require when a newspaper supported a political candidate or provided space to one, that they had to also give space to others, or when they expressed an opinion they had to give time to the other side, or something like that, I'm not exactly certain which it was. Courts found that requirement unconstitutional and struck it down.

    Now, the only time that a particular place can be required to carry someone's message is when they are considered a common carrier (such as a telephone, telegraph or cable tv system). They generally were required to provide service to anyone who could pay the same rates as anyone else, because they were granted an exclusive license to operate, or, today, they have the use of a limited resource - the public right of way - to provide service to customers, since the customers can't build their own phone lines across the roads (the way, say, anyone can buy a car and drive it on the highway), they have to provide service to anyone who can pay.

    The ostensible reason the Supreme Court upheld the Fairness Doctrine with respect to broadcast stations is that they have a license to use extremely limited airwaves and should not be permitted to monopolize something which is a public resource. Of course, this is a hard argument to make today because the television stations tend to presume that they own the airspace they have and any dispute of their exclusive rights should be resisted vigorously, hence the usual fights over even small and marhginal organizations operating low power television. But the argument still can be applied; not everyone can run a television station because "their ain't that much room available" in the airspace.

    Now, it's arguable that none of these search engine companies that accept ads are in any way a user or licensee of a limited or public resource or have some special condition that requires them to in some way be declared to be common carriers.

  • by delong (125205)
    The Fourteenth Amendment applies to States, not private individuals. What a fool. His counsel is a bigger fool for allowing his client to entertain such nonsense. He should be sanctioned under Rule 11 for bringing a frivolous claim not grounded in law.

The ideal voice for radio may be defined as showing no substance, no sex, no owner, and a message of importance for every housewife. -- Harry V. Wade

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