Judge Suggests Attorney General Jim Hood Is Unconstitutionally Threatening Google 'In Bad Faith'

Legal Issues

from the ya-think? dept

About a month ago, we noted that a federal court had granted a temporary injunction blocking a subpoena issued by Mississippi Attorney General Jim Hood, demanding all sorts of information from Google. At the time, the judge only said that Google’s argument was “stronger” than Hood’s, but said a full ruling would come out in time. That full ruling [pdf] is now out, and boy, does it make Jim Hood’s anti-Google vendetta look questionable — specifically saying that there is “significant evidence of bad faith” on the part of Hood to try to use his government position to unconstitutionally coerce Google into making changes to its service that it has no legal obligation to make.

If you don’t recall, Hood has a long-standing obsession with Google, despite having an astounding level of ignorance about how the search engine actually operates. In his anti-Google rants, Hood makes statements that are blatantly false and repeatedly argues that Google is to blame merely because its search engine finds websites that Hood’s office doesn’t like and doesn’t think should exist at all. And that doesn’t even touch on the now known fact that the MPAA secretly funded Hood’s investigation and wrote nearly every word of the threatening letters sent to Google.

While Hood and various MPAA supporters have insisted that he’s clearly in the right, at least federal judge Henry Wingate doesn’t see much to support that. Hood tried desperately to keep this issue out of federal court, using a variety of claims, including the so-called “Younger Abstention” which argues that federal courts should stay out of certain issues. However, as Wingate notes, that only applies in three specific cases, none of which apply to Hood’s campaign against Google — and, even if any of them did apply, there’s a further exception for “bad faith” — and Wingate is pretty convinced that Hood is acting in bad faith:

Moreover, even if the Younger elements were satisfied here, the court would not be required to abstain here because an exception to the application of the doctrine applies. Indeed, federal courts may disregard the Younger doctrine when a state court proceeding was brought in bad faith or with the purpose of harassing the federal plaintiff… Google has presented significant evidence of bad faith, allegedly showing that Attorney General Hood?s investigation and issuance of the subpoena represented an effort to coerce Google to comply with his requests regarding content removal. As previously discussed, the Attorney General made statements, on multiple occasions, which purport to show his intent to take legal action against Google for Google?s perceived violations. When Google declined to fulfill certain requests, the Attorney General issued a 79-page subpoena shortly thereafter. The court is persuaded that this conduct may evidence bad faith on the part of the Attorney General.

The court also notes that Hood clearly recognizes that many of his attacks on Google are blocked by Section 230 of the CDA (which, again, say you can’t blame a service provider for actions of its users), because Hood himself signed a letter to Congress asking for Section 230 to be amended to exempt investigations by state attorneys general (we wrote about that dangerous effort at the time as well).

From there, Judge Wingate notes that it seems clear that Hood is likely violating Google’s First Amendment rights too, even noting that the subpoena itself appears to be retaliation for protected free expression:

Furthermore, the court also is persuaded that Google has demonstrated a substantial likelihood that it will prevail on its claim that Attorney General Hood has violated Google?s First Amendment rights by: regulating Google?s speech based on its content; by retaliating against Google for its protected speech (i.e., issuing the subpoena); and by seeking to place unconstitutional limits on the public?s access to information. First, the relevant, developing jurisprudence teaches that Google?s publishing of lawful content and editorial judgment as to its search results is constitutionally protected…. The Attorney General?s interference with Google?s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google?s protected speech, thereby violating Google?s First Amendment rights.

Additionally, it is well-settled that the Attorney General may not retaliate against Google for exercising its right to freedom of speech by prosecuting, threatening prosecution, and conducting bad-faith investigations against Google…. As explained supra, Google has submitted competent evidence showing that the Attorney General issued the subpoena in retaliation for Google?s likely protected speech, namely its publication of content created by third-parties. Given the gravity of the rights asserted herein, the court finds it appropriate to enjoin further action on behalf of the Attorney General until a determination on the merits of Google?s claims is made.

Judge Wingate also sides with Google on the 4th Amendment, noting that the broad subpoena appears to be a “burdensome fishing expedition” that goes well beyond what the Attorney General is allowed to request.

Google also wins on the key issue that the MPAA was using Hood to press: how it handles searches for copyright-covered material. As Google points out, copyright is a federal law issue, not a state law issue, so the requests regarding copyright are preempted by federal law. Hood (and, apparently, his MPAA-paid lawyers who helped draw up the subpoena) tried, weakly, to get around this preemption by arguing that by finding unauthorized material, Google was “misleading customers.” That doesn’t fly:

The Attorney General admits that certain requests contained in the subpoena ?could arguably be used to show copyright infringement? (AG Response, p. 30), but argues that the same information could also be used to expose Google?s various practices of misleading customers. The court is not persuaded that the Attorney General?s posited theoretical basis for making these requests is sufficient for the purpose of rebutting Google?s preemption allegation.

Basically, the judge clearly recognizes Hood’s effort for what it was: a broad fishing expedition that was partly “retaliation” against Google for daring to stand up for its right to run an online search engine. The case is far from over, but Hood (and his MPAA-assisted team) are going to have to move on to some other plan of attack. Maybe (just maybe), they can focus on (1) going after actual criminals, rather than made up ones and (2) telling the MPAA to learn how to innovate, rather than blame Google for its own failures.

Filed Under: attorneys general, bad faith, blame, copyright, dmca, first amendment, henry wingate, jim hood, mississippi, safe harbors, search engines, section 230
Companies: google