Google Can Still Fight Mississippi Content Subpoena

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By Alexis Kramer

May 19 — The U.S. Court of Appeals for the Fifth Circuit has retracted its order directing the full dismissal of Google Inc.'s case against a Mississippi government subpoena seeking information on Google's efforts to police objectionable content.

Judge Stephen A. Higginson, in a May 18 substitute opinion, instructed the lower court to dismiss Google's Communications Decency Act claims challenging the subpoena and for injunctive relief against future enforcement actions by Mississippi Attorney General Jim Hood (D). The new opinion clarified that the appeals court declined to rule on Google's claims for declaratory relief.

The ruling leaves the door open for Google to pursue a court order declaring its rights under the First Amendment and to be free from liability for content posted by third parties.

Chief Judge Carl E. Stewart and Judge Carolyn Dineen King joined in issuing the substitute opinion.

Hood told Bloomberg BNA May 19 that the order is substantially the same as the original. In that opinion, the Fifth Circuit “rejected Google’s misguided attempts to use the federal courts to derail an investigation into potential violations of Mississippi state law,” he said.

“We look forward to presenting our case for dismissal of Google’s remaining claim in district court, and we will continue working to protect Mississippi children and families,” Hood said.

A Google spokeswoman declined Bloomberg BNA's request for comment on the substitute opinion.

Google's Petition

Google alleged that Hood engaged in a campaign of threats to compel Google to block from its search engine, YouTube video-sharing website and advertising services any third-party content that Hood found objectionable. After Google refused to comply with this request, Hood served Google with a 79-page subpoena, demanding that it produce “an enormous volume” of documents related to its actions and inactions to restrict third-party content.

Google brought an action seeking to enjoin enforcement of the subpoena and the threatened civil and criminal proceedings, as well as to declare its rights under the constitution and its federal online publisher immunity under Section 230 of the Communications Decency Act, 47 U.S.C. § 230.

The U.S. District Court for the Southern District of Mississippi granted a preliminary injunction (20 ECLR 473, 4/1/15).

On appeal, a Fifth Circuit panel—which was made up of the same judges as those that issued the substitute opinion—April 8 vacated the injunction on the grounds that the possibility of a future enforcement action against Google didn't pose an “imminent threat of irreparable injury” to the company (21 ECLR 522, 4/13/16). The panel directed the district court to dismiss the entire case.

Google requested a rehearing, arguing that the “imminent threat” standard only should have applied to its injunctive relief claims. It asked the panel to amend the opinion to allow its declaratory relief claims to proceed.

The Fifth Circuit issued the substitute opinion but otherwise denied the petition for rehearing.

Forman Watkins & Krutz LLP, WilmerHale and Wyly Rommel PLLC represented Google. Kitchens Law Firm PA, Cory Watson PC and the Mississippi Office of the Attorney General represented the state.

To contact the reporter on this story: Alexis Kramer in Washington at

To contact the editor responsible for this story: Donald G. Aplin at