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March 19, 2006

Proof We Need Better 1st Amendment Education

Some morons are suing Google because they don't like the way Google's search algorithms mess with their ability to make money (which, apparently, relied almost entirely on high page rankings on Google). This would be an idiotic suit anyway, but this is what really makes me wish I was a judge, so I could penalize someone lots of money for filing frivilous lawsuits:

The complaint accuses Google, as the dominant provider of Web searches, of violating KinderStart's constitutional right to free speech by blocking search engine results showing Web site content and other communications.

My mind just boggles every single time I read that. I literally cannot imagine a lawyer incompetent enough to craft that argument actually passing the bar in any state in the nation and finding profitable work in the world. Clearly some must. But I try not to sully my beautiful mind imagining who they might be, or alternately, who would be stupid enough to employ them. The idea that being unhappy with one's Google page ranking somehow equates to a constitutional restriction of speech just makes me feel like my head needs to explode.

The closest thing to this in my personal experience was when I was the editor of the Maroon, which was the student newspaper at my school. The editors-in-chief and business managers of the newspaper previous to me and my business manager had done a really tremendously poor job of actually getting advertisers to pay for their advertisements, and as a result the amount owed to the newspaper by our advertisers was in the six figures (I don't remember the exact amount at the moment, but I think it was something like $250,000 or some such). We told the advertisers in arrears that they needed to pay up before they could advertise again, which was serious threat since the Maroon was actually a cheap and effective way to reach bunches of college kids with disposable incomes.

But some advertisers were appalled that we suddenly expected to be paid; one actually called up and screamed in my ear that my refusing to let him advertise until he paid up was limiting his constitutional right to free speech. I was literally struck dumb by the sheer stupidity of the statement. I seriously considered telling that man that he was too stupid to advertise in my newspaper at all. I did not -- I had a business to run, after all -- but the temptation was mighty.

Back here in the present day, it is my sincere hope that when this lawsuit gets in front of a judge that first she will have a nice, hearty laugh, and then she'll drop the filing attorneys in jail for the weekend for wasting the court's time in such an asinine fashion. These morons' difficulties with Google are not the Constitution's problem. Sadly enough these days, the Constitution has enough problems of its own without these people trying to whip one up because their business is in the crapper. Jail time! It would not be too good for these lawyers.

Posted by john at March 19, 2006 10:19 PM

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mythago | March 20, 2006 12:19 AM

Unfortunately, I can't locate a copy of the complaint to see if it says what the AP report says it does.

joshua corning | March 20, 2006 12:50 AM

Confusion over the 14th amendmant started when government started applying the equal rights amendment to private entities...then strangly exampted itself from it which is weird....It has gone down hill from there.

Wan Zafran | March 20, 2006 05:32 AM

I thought of the same thing too when I read that article.

Those dumbasses think they can win and set a precedent in court by suing Google? Yeah, right.

Bob Westbrook | March 20, 2006 06:28 AM

Hey John, many lawyers don't give a shit about right, wrong, smart, or stupid. He got a check for filing this lawsuit and can now make the claim to fame that he sued Google. I'm sure he/she (Got to be correct so I don't get sued) will neglect to mention that they were laughed out of court.

Bill Marcy | March 20, 2006 07:22 AM

Not only do we need better 1st amendment education, but it would be nice if public schools would acknowledge that there is an actual 2nd amendment, and that it guarantees a citizen the right to keep and bear arms. No?

John Scalzi | March 20, 2006 07:40 AM

I'm for a better general education on the entire Constitution and Bill of Rights, actually. However, the 1st Amendment was the one relevant here, which is why it is mentioned.

I myself don't have a real fetish for 2nd Amendment, nor do I actually feel it's seriously under attack in this country at this point, although apparently you might feel differently. I think if we're going to pick out particular Amendments in the Bill of Rights that people need to be reminded of at this point, particularly those in government at the moment, would be the 1st and 4th.

But in any event, we need not get into a general discussion of Constitutional amendments at this point. Which is to say I don't want to, at least not in this thread.

Brandon | March 20, 2006 07:55 AM

I agree with Bob. When I read the argument, I didn't think "incompetent", rather "sleazy". The lawyer knows that the case doesn't have merit, but they're getting paid regardless, so they whip up some fancy complaint, drop some amendments in there and take it to the bank. Jail time is still an appropriate response for the lawyers, as regardless of what well of craptastic behaviour, this suit comes from, it's still a waste of the court's time.

Funny thing, is just this morning, while watching the news, I saw a commercial for a lawyer where the head lawyer looked at the camera and said "malpractice suits are always considered frivolous until it's your case". He was very grave. So, John, this case is only frivolous until Google starts impeding your ability to speak freely. ;)

Bill Marcy | March 20, 2006 08:10 AM

I understand John, my feelings on the amendments are that without a strong 2nd amendment, the rest are just words on paper.

Kevin Q | March 20, 2006 08:35 AM

I agree with mythago - I wish I could read the underlying complaint.

There is a legitimate argument under that sentence, which is that a public forum is a public forum, regardless of who owns it. (For example, the town square of a company-owned town, or the public areas of a shopping mall.) Blocking somebody's speech on the internet (the most public forum of all) could very well be a violation of their first amendment right to free speech:

_If_ the court rules that Google is a public forum, and
_If_ delisting from Google is ruled as blocking that speech.

It's not a great argument. But it is legitimate. A real-life corollary might be if a mall required a certain speaker to go stand beyond the public restrooms in order to hand out literature.

I have a feeling that the first-amendment concern is not that important to the plaintiff, since the article doesn't even mention it until the next-to-next-to-last paragraph. Probably just something thrown in by the lawyers to get some attention. I have a feeling that the meat of the case is torts, some variation on tortious-interference-with-business-prospects, which just isn't as sexy as the first amendment. But we shall see.


Cassie | March 20, 2006 09:00 AM

Kevin's probably right, the 1st Amendment was thrown in for PR purposes.

What happened to the Amazing Ugly Critter layout? (Talking about the crawdad, not your family.)

John Scalzi | March 20, 2006 09:13 AM

Kevin Q:

Agreed that the 1st Amendment thing is not at the heart of the argument, but it doesn't make it any less stupid.

I'm not a lawyer, of course, but I would have difficult time seeing the argument that Google is a public forum in the manner of a town square or shopping mall. A search engine delisting a domain or changing the manner in which the domain is searched doesn't stop people from being able to reach the domain, so long as they know the URL. Nor does it stop someone from using another search engine (Yahoo or MSN Search, for example). Google is powerful, but it's definitely not a monopoly, nor does it seek to keep people from going anywhere on the Web they wish to go when they type a URL into the address bar. It's nuisance suit.

Randy | March 20, 2006 09:20 AM

Just think of all the publicity KinderStart.com is getting from this lawsuit.

John Scalzi | March 20, 2006 09:27 AM

You'll notice I didn't link to them.

Kevin | March 20, 2006 09:42 AM

I was under the impression that a shopping mall is private property and because of that could bounce people (or charge them for tresspassing) if they were saying things the mall didn't like. Like protests and things of that nature.

XtinaS | March 20, 2006 10:26 AM

I would analogise being delisted in Google to being delisted in the Yellow Pages, pre-Internet. It's huge, it's primarily how people find businesses, but it's not the only way. Of course here, it seems that it's less delisting and more demoting, which is like taking something from a full-page ad to a four-line ad, then complaining about 1st Amendment rights.

To be fair, I sympathise about getting in touch with Google - it is a frickin' pain in the tuchis to get in touch with anybody at Google, regarding such things. Had a friend who subscribed to AdSense, clicked the ads once or twice to test them, and had her account shut down. Rookie move on her part, but she could just never get in touch with anybody to say "Hey, I messed up, pls let me back in thx!". Gah.

Brian | March 20, 2006 11:08 AM

One of the biggest things the Internet has done is made people think that all information should be instantly accessible to everyone at all times. One excellent example is in research: as a grad student of the 21st century, it is notable that a trip to the library for me is a rare thing - I find most of my resources (which are in peer-reviewed journals for the most part) wholly online. I search for articles with a Net-based application, and in most cases can access and download the ones I want in less than two minutes. Contrast with twenty years ago: even finding a single article would have required going to the library, looking in an index of chemical abstracts, identifying potentially related articles, looking up those articles' abstracts, deciding which articles actually are relevant, going and finding the articles on a different stack in the library, and then photocopying the article out of the journal. Now, 2 minutes/article; then, 2 hours/article (if one were lucky).

People today are LAZY. These folks are all snorted out because they thought they'd come up with a clever way of manipulating Google's product to get them some free high-profile exposure and Google clamped down on it. If the judge takes more than ten minutes to dump the case out the back of the courtroom, I'll be rather disappointed.

David | March 20, 2006 11:47 AM

Um, Bill, the story doesn't say the plaintiff was delisted. It says that it was re-ranked so that it was no longer in the first few hits.

Apropos of that, if the suit prospers, then maybe John could sue Amazon.com should his sales rank fall?

There's no real first-amendment issue here at all. Not even a nebulous one.

John Scalzi | March 20, 2006 12:00 PM


"Apropos of that, if the suit prospers, then maybe John could sue Amazon.com should his sales rank fall?"

Not that you mention, it my sales are down slightly today...

PeterP | March 20, 2006 12:09 PM


"But in any event, we need not get into a general discussion of Constitutional amendments at this point. Which is to say I don't want to, at least not in this thread."

Aww, but second amendment debates always seem to bring out the best in people!

John Scalzi | March 20, 2006 12:16 PM

Don't they, though?

I don't expect my point of view on the 2nd is substantially different from Mr. Marcy's actually. I just don't want to talk about it right now.

Erbo | March 20, 2006 12:42 PM

These are the kind of people who need to have tattooed on their forehead: The First Amendment applies to the government, NOT to private entities. Or, as I've put it a number of times, "There may be free speech, but there is no free lunch." They're trying to get Google to give them a free lunch...

This sort of thing happens all the time: people figure out a way of "gaming" Google to give them higher search results; Google finds out about it and changes their index algorithm to keep it from working; then new ways of gaming the results keep cropping up, which Google has to block, and so on. Reminds me of the brouhaha around the Electronic Thumb in The Hitchhiker's Guide to the Galaxy, which "half the electronic engineers in the Galaxy were staying up late at night trying to find fresh ways of jamming, while the other half were staying up late at night trying to find fresh ways of jamming the jamming signals." (From the fourth book, and it may not be an exact quote...)

Laurie Mann | March 20, 2006 02:14 PM

They've just got to be in it for the publicity. It's ludicrous that their business model is so crappy that if they don't rank first in Google, they're toast!

"Writer of top-ranked search engine pages since 1996..." ;-> (Of course, I don't make any money off of it, but...)

mythago | March 20, 2006 11:07 PM

He got a check for filing this lawsuit and can now make the claim to fame that he sued Google.

Who you sue is not any kind of 'claim to fame' among lawyers. Companies get involved in all kinds of lawsuits for all kinds of reasons. Nobody cares that this guy filed a lawsuit against Google.

Brian Greenberg | March 21, 2006 12:15 AM

Just think of all the publicity KinderStart.com is getting from this lawsuit.

You'll notice I didn't link to them.

OK, so here's the irony: if you had linked to them, their PageRank would have gone up, which is what they were complaining about in the first place.

In fact, if a significant number of articles written about the case include links to both Google and the plaintiff's site, the suit might actually evaporate before our eyes.

It's the Heisenberg principle at work - hyperlink style!!!

mythago | March 21, 2006 01:16 AM

In fact, if a significant number of articles written about the case include links to both Google and the plaintiff's site, the suit might actually evaporate before our eyes.

That's a bit like saying if I steal your car, John posts about it, and sympathetic readers send you enough money to buy a better car, then I shouldn't be arrested for the car theft.

great unknown | March 21, 2006 09:46 AM

If this was filed in California, or perhaps in New York, I'll bet it makes it pretty far up the appellate chain before being "laughed out of court."

mythago | March 21, 2006 12:11 PM

I'll never understand the myth that only courts in them lib'rul states have to follow rules that apply to all cases, whereas good, upstanding judges simply toss out any lawsuit they don't like without having to say why.

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