{"id":16567,"date":"2015-03-30T16:39:50","date_gmt":"2015-03-30T21:39:50","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=16567"},"modified":"2015-03-30T16:39:50","modified_gmt":"2015-03-30T21:39:50","slug":"s-d-miss-mississippi-ags-offices-subpoena-to-google-was-retaliatory-under-the-first-amendment-and-overbroad-under-the-fourth-amendment","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=16567","title":{"rendered":"S.D.Miss.: Mississippi AG\u2019s office\u2019s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment"},"content":{"rendered":"

The Mississippi AG\u2019s office\u2019s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment. Google, Inc. v. Hood<\/a>, 3:14cv981-HTW-LRA (S.D. Miss. March 27, 2015):
\n<\/p>\n

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\u2019s First Amendment rights by: regulating Google\u2019s 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\u2019s access to information. First, the relevant, developing jurisprudence teaches that Google\u2019s 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) (\u201cthere 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\u201d) (citations omitted). The Attorney General\u2019s interference with Google\u2019s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google\u2019s protected speech, thereby violating Google\u2019s 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.
\nSee 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\u2019s 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\u2019s claims is made. <\/p>\n

Next, this court also finds that Google\u2019s 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\u2019s argument, Google makes the following statements in support of its position that enforcement of the subpoena should be enjoined: <\/p>\n

The Fourth Amendment prohibits subpoenas that are unduly broad. United States v. Miller, 425 U.S.435, 445 (1976) (Fourth Amendment \u201cguards against abuse … by way of too much indefiniteness or breadth\u201d); See v. City of Seattle, 387 U.S. 541, 544 (1967) (\u201cthe 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\u201d). <\/p>\n

It is no answer to a challenge to the Subpoena\u2019s 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.<\/p><\/blockquote>\n

Google\u2019s reasoning here is well-taken. Attorney General Hood\u2019s subpoena must comport with the requirements of the Fourth Amendment and not wage an unduly burdensome fishing expedition into Google\u2019s operations.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Mississippi AG\u2019s office\u2019s 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):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[81],"tags":[],"class_list":["post-16567","post","type-post","status-publish","format-standard","hentry","category-subpoenas"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16567","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16567"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16567\/revisions"}],"predecessor-version":[{"id":16568,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16567\/revisions\/16568"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16567"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16567"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16567"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}