S.D.Miss.: Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment

The Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment. Google, Inc. v. Hood, 3:14cv981-HTW-LRA (S.D. Miss. March 27, 2015):

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. See Jian Zhang v. Baidu.com Inc., No. 11 CIV. 3388 JMF, 2014 WL 1282730 (S.D.N.Y. Mar. 28, 2014) (“there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation”) (citations omitted). 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.
See Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005) (citing Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.2001) (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000)). 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.

Next, this court also finds that Google’s Fourth Amendment claim regarding the overbreadth of the subpoena in question has substantial merit. According to Google, little in the subpoena pertains to proper subjects of the regulation by the Attorney General, as most of the requests for information seemingly regard conduct that is immunized or preempted by federal law. The Attorney General, on the other hand, claims that not all the information requested in the subpoena is off-limits for inquiry. In its rebuttal to the Attorney General’s argument, Google makes the following statements in support of its position that enforcement of the subpoena should be enjoined:

The Fourth Amendment prohibits subpoenas that are unduly broad. United States v. Miller, 425 U.S.435, 445 (1976) (Fourth Amendment “guards against abuse … by way of too much indefiniteness or breadth”); See v. City of Seattle, 387 U.S. 541, 544 (1967) (“the Fourth Amendment requires that [an administrative] subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome”).

It is no answer to a challenge to the Subpoena’s focus on immunized conduct for the Attorney General to say that some small fraction of what is actually being sought might be properly within his purview. The whole point of the Fourth Amendment is to outlaw general searches launched merely on the theory that they might turn up some evidence of wrongdoing; the Fourth Amendment forces the State to particularize what it is seeking, and why it believes it will be found. Docket No. 55, Pg. 39.

Google’s reasoning here is well-taken. Attorney General Hood’s subpoena must comport with the requirements of the Fourth Amendment and not wage an unduly burdensome fishing expedition into Google’s operations.