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AG Hood Wins Battle, Losing War in Mississippi Content Suppression Case

· April 12, 2016

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An update on a subject of previous DisCo coverage [1] [2]: on Friday, a federal appellate court lifted a hold on a subpoena from the Mississippi Attorney General to Google about unauthorized or unlawful content in Internet search results.  Although nominally a loss for the search company, Harvard Law prof Noah Feldman observes that the court’s ruling “doesn’t bode well for [Mississippi] Attorney General James Hood III’s aggressive enforcement actions”.

The context here begins with a secret film industry initiative revealed by the 2014 hack of Sony Pictures.  The project, referred to as “Goliath,” enlisted State Attorneys General (AGs) to tell the search company what links it could and could not display.  When Google did not submit to the Mississippi AG’s demands to disappear Internet content, Hood’s office retaliated with a punitive, 79-page subpoena demanding millions of records, largely ghostwritten by private lawyers paid by the movie industry.  

Google responded by taking the matter to federal court, and various industry and public interest groups weighed in against the AG’s practices at both the district court and appellate levels.  (Documents are collected here on EFF’s page about the case.)  These groups argued that if state officials could launch retaliatory investigations against online services, notwithstanding federal laws to the contrary, it would undermine principles of free expression and long-established federal law.  (This project was in fact one of several recent legal initiatives with troubling potential consequences for Internet speech.)

In March, a Mississippi district court sided with Google, granting a motion for a temporary restraining order and preliminary injunction against having to respond to this subpoena.  On Friday, however, the Fifth Circuit vacated that injunction on the grounds that the dispute was not yet ripe, a procedural finding that did not reach the merits of the case.  As Ars Technica explained, the focus of the opinion was the prematurity of the complaint, not its merits.

On the substance, the appeals court seems to acknowledge that the AG’s conduct presents First Amendment concerns.  The opinion cites the burden and sweeping nature of the subpoena, adding that it “would require massive document production” and “lack[ed] temporal limitations.”  The court also stated that Hood’s office lacked statutory authority to enforce the request directly.  As Prof. Feldman notes, the court’s opinion makes clear that if the AG proceeds “he will almost certainly be blocked before he can actually file suit.”  This fact diminishes the likelihood that the AG’s office would pursue any legal enforcement, since it is unlikely to go anywhere.  

While this latest ruling undermines the viability of the AG’s specific, Hollywood-backed campaign against Google, the consequences for the broader Internet sector are less certain.  In the future, online services might again be told by state law enforcement agent officials to censor content or face punitive investigations.  While the Fifth Circuit’s Hood ruling would seem to undercut the ultimate viability of an enforcement action, Friday’s decision suggests that a punitive AG investigation can still theoretically proceed, free of federal restraint.  (In a press conference yesterday, AG Hood stated that he was evaluating whether or not to proceed.)  Unfortunately, not all individuals or platforms operating websites have the legal resources to respond to punitive investigations, and future recipients of extrajudicial demands to censor content may simply acquiesce, rather than fight a lengthy legal battle.

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