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Court Sides With Google, Shuts Down Mississippi AG’s Abuse of Authority

A federal judge has decisively halted the Mississippi Attorney General’s campaign of threatening to prosecute Google for refusing to remove content he finds objectionable. The court ruled in Google’s favor a few weeks ago but finally issued its complete order last Friday, March 27. The order is pretty damning, finding that Google presented “significant evidence of bad faith” on the Attorney General’s part.

While Attorney General Hood has been going after Google for some time, this case nominally started back in October when the Attorney General served Google with a burdensome subpoena seeking a wide array of information. The subpoena was based primarily on allegedly unlawful activities of third parties who use Google’s services—despite the fact that the Communications Decency Act (CDA) protects online intermediaries like Google from liability for those activities. In December, after documents disclosed in the Sony hack outlined a Hollywood plot against Google—including plans to pressure Attorney General Hood into aggressively investigating the search engine giant—Google asked a federal court to block the Attorney General’s subpoena, as well as any of the civil or criminal actions he threatened to take against Google.

The court granted Google’s request a few weeks ago, and now we know why. The court walked through a host of allegations and evidence and concluded that the investigation likely was an abuse of power. The court found that:

“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.”

Moreover, the court stated that it appeared “that Attorney General Hood is aware that federal law significantly restricts his ability to take action of the sort in question here.” The court noted that Hood signed a joint letter to Congress in 2013 requesting an amendment to 47 U.S.C. § 230 that would authorize AGs to do more to police online platforms for the activities of third party users—exactly what he was already trying to do.

The court also found that “[t]he Attorney General’s interference with Google’s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena . . . would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights.” Google thus demonstrated a substantial likelihood that it would prevail on its claims that the Attorney General violated Google’s First Amendment rights through (i) regulating Google’s speech based on its content; (ii) retaliating (by way of the 79-page subpoena) against Google for its protected speech; and (iii) seeking to place unconstitutional limits on the public’s access to information.

Although the case is far from over—this is just a preliminary order—the court’s recognition of Google’s rights under the First Amendment and the CDA is encouraging, and important for the overall health of the Internet.

EFF filed an amicus brief in support of Google in February, explaining that this case implicates not only large service providers like Google, but also small service providers and the users who rely on those platforms to communicate, learn, and organize. Requiring online service providers of any size to respond to burdensome subpoenas based primarily on third-party conduct—or to engage in protracted and expensive litigation to challenge their propriety—would inevitably stifle innovation and chill speech of Internet users across the board.

Attorney General Hood is appealing the order. Let’s hope the appeals court, too, refuses to allow a state official to do an end-run around the First Amendment and the CDA.

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