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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Christopher Langdon v. Google Inc., et al.

2007 WL 530156, Civ. Act. No. 06-319-JJF (D. Del. February 20, 2007)

First Amendment And Communications Decency Act Bar Suit Against Search Engines For Failure To Display Advertisements

The Court held that the First Amendment, and the guaranties afforded Google and Yahoo thereunder, barred claims seeking redress as a result of Google and Yahoo's refusal to run advertisements on their search engines they did not wish to run.  In reaching this result, the Court followed decisions that afforded newspapers similar First Amendment protections when challenges arose concerning their refusal to run advertisements they deemed objectionable.  As a result, the Court dismissed claims advanced by plaintiff arising out of the defendants' refusal to run his advertisements, including claims that the defendants defrauded him and engaged in deceptive business practices, violated his First Amendment rights, and failed to meet the duties imposed on those, like inn keepers, engaged in a public calling.

The Court also held that Google and Yahoo were immunized from such claims by the Communications Decency Act, 27 U.S.C. Section 230, which "bars 'lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, alter or postpone content.'" It should be noted that plaintiff was proceeding pro se.

Google Refuses To Run Ads Promoting Plaintiff’s Web Site

Plaintiff Christopher Langdon ("Langdon") runs two web sites - and  According to his complaint, "the NC Justice website exposes fraud perpetrated by various North Carolina government officials and employees, including Roy Cooper, the North Carolina Attorney General, and [ ] the China website delineates atrocities committed by the Chinese government."

Langdon sought to run advertisements promoting his sites on search engines operated by Google, Yahoo and Microsoft.  Langdon alleged that Google refused to run these advertisements because Google does not permit text advertisements that advocate against an individual, group or organization, or a group protected by law.  Yahoo similarly declined to accept his advertisements.  According to plaintiff, Yahoo informed him that this refusal was based on a policy not to run advertisements that promote web sites Yahoo does not host.  Microsoft apparently simply did not respond to Langdon's requests for advertisement placement.

First Amendment Shields Search Engines From Suit For Declining To Run Advertisements

Upset with his inability to have his ads run, Langdon commenced this suit pro se, charging Google, Yahoo and Microsoft with violating both his First Amendment rights, and similar constitutional protections afforded under the Delaware State Constitution.  The complaint also advanced claims of fraud, violation of Delaware's deceptive business practices statutes, breach of contract and public calling.

The defendants moved to dismiss.  The Court held that, with the exception of the breach of contract claims asserted against Google, plaintiff's claims were barred by the protections afforded the defendants under the First Amendment.  Neither Google, Yahoo nor Microsoft can be compelled to run advertisements they elect not to publish, as such a compulsion would run afoul of the First Amendment.  In reaching this result, the Court relied on decisions that afforded newspapers similar First Amendment protections when faced with challenges concerning their decision to bar advertisements based on their content.  Said the Court:

Google points to the relief sought by Plaintiff [which sought to compel] Google, Yahoo and Microsoft [to] place Plaintiff's ads for his websites in prominent places on their search engine results and [have] Defendants honestly rank plaintiff's web sites.  Google argues that such relief would compel it to speak in a manner deemed appropriate by Plaintiff and would prevent Google from speaking in ways that Plaintiff dislikes.  It contends such relief contravenes the First Amendment. …  Defendants are correct in their position that the injunctive relief sought by Plaintiff contravenes Defendants' First Amendment rights.

Communications Decency Act Immunizes Search Engines From Non-Breach Of Contract Claims Arising Out Of Refusal To Run Ads

The Court further held such claims barred by the immunity afforded Google, Yahoo and Microsoft under the Communications Decency Act ("CDA").  Relying on the Third Circuit's decision in Green v. AOL, 318 F.3d 465 (3d Cir. 2003) the Court held that the CDA affords Google immunity from suit arising out of editorial decisions as to the content that does and does not appear on its site.  Said the Court:

It is evident from the allegations in the Amended Complaint that Plaintiff attempts to hold defendants liable for decisions relating to the monitoring, screening and deletion of content from their network.  As noted by the Green Court, these actions are 'quintessentially related to a publisher's role," Green, 318 F.3d at 471, and 'Section 230 'specifically proscribes liability' in such circumstances.' Id.  … Section 230 provides Google, Yahoo and Microsoft immunity from their editorial decisions regarding screening and deletion from their network.

Plaintiff Fails To State A Claim

The Court further held that dismissal of all of plaintiff's claims, save its breach of contract claim against Google, was warranted due to Langdon's failure to state a viable claim for relief.  Plaintiff's claims that defendants violated his First Amendment rights by refusing to publish his advertisements failed because defendants were not state actors, and therefore were not subject to constitutional free speech guarantees.  In reaching this result, the Court rejected plaintiff's analogy of Google's search engine to a private shopping center, noting that "the court has routinely rejected the assumption that people who want to express their views in a private facility, such as a shopping center, have a constitutional right to do so."  Plaintiff's claims under the free speech clause of the Delaware Constitution failed for a similar reason.

Plaintiff's fraud claim failed, inter alia, because he failed to allege that the defendants intended to induce plaintiff to take, or refrain from taking, any action.  Plaintiff's Delaware Consumer Protection Act claim failed because he had not alleged that the actions he complained of took place in Delaware, a prerequisite to such a claim.  Finally, plaintiff's public calling claim failed because the duties imposed on those engaged in a public calling, such as an innkeeper or common carrier, have not been extended to internet search engines.  Said the Court:

Defendants, as internet search engines, do not fall under the umbrella of an innkeeper.  The public calling claim is frivolous, and therefore the Court will grant Defendants' Motion to Dismiss the public calling claim.

The Court did permit plaintiff to proceed with breach of contract claims against Google.  Neither the nature of those claims, nor the alleged contractual relationship out of which they arose, were explained in the Court's decision.

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