On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google's motion for a temporary restraining order and preliminary injunction. Recently, U.S. District Judge Henry T. Wingate issued the opinion laying out his reasoning for siding with Google and denying Hood’s motion to dismiss the case.
After several years of back-and-forth, the case escalated on October 27, 2014 when Hood served Google with a 79-page subpoena under the Mississippi Consumer Protection Act. According to Google’s complaint, the Attorney General “threatened to prosecute, sue, or investigate Google unless it agrees to block from its search engine, YouTube video-sharing site, and advertising systems, third-party content (i.e., websites, videos, or ads not created by Google) that the Attorney General finds objectionable.” Google refused to comply with the subpoena, and instead brought federal action against Hood in December 2014. The company’s argument relied on its free speech rights and the Communications Decency Act of 1996 (“CDA”), which shields intermediates like Google from liability arising from third-party content, as well as its rights under the Fourth and Fourteenth Amendments, the Copyright Act, the Digital Millennium Copyright Act (“DMCA”), and the Food, Drug, and Cosmetic Act (“FDCA”).
Judge Wingate found a substantial likelihood that Google would prevail on its claims that Hood’s investigation violated Google’s First Amendment rights by trying to regulate its speech based on content, by retaliating against it over speech, and by “seeking to place unconstitutional limits on the public’s access to information.”
Hood’s subpoena also might violate the Fourth Amendment, the judge wrote, by requesting an overly broad swath of information to “wage an unduly burdensome fishing expedition into Google’s operations.”
When denying Hood’s motion to dismiss, the judge indicated that Google had presented “significant evidence of bad faith” on Hood's part, including evidence that the probe “represented an effort to coerce Google to comply with his requests regarding content removal.”
Ars Technica and the Wall Street Journal report that Google filed suit after it was revealed that Hood’s investigation was coordinated with and encouraged by movie studios and the Motion Picture Association of America. Google was "pleased with the court's ruling, which recognizes that the MPAA's long-running campaign to censor the web... — is contrary to federal law," according to the Associated Press.
The Electronic Frontier Foundation, which filed an amicus brief in support of Google, calls the order “encouraging and important for the overall health of the Internet,” arguing that “[r]equiring online service providers of any size to respond to burdensome legal actions based primarily on third-party conduct . . . would inevitably stifle innovation and chill speech of Internet users across the board.”
Google’s success at gaining a preliminary injunction is far from the final word in the case. The Attorney General has appealed the order, stating, “[t]his case is not about censorship of the internet or free speech, but whether the attorney general has the authority to determine whether Google has assisted third-party sites in breaking the law.” The lawsuit will continue, but Hood is barred by the order from continuing his investigation until a final decision is reached.
Further discussion can also be found at The Verge.
Lan Du is a LLM student in the Class 2015 of Harvard Law School.