Just as the New York Times can decide “All the News That’s Fit to Print,” search engines have a free speech right to choose who or what to put in their search rankings.
That’s the conclusion of a prominent First Amendment scholar commissioned by Google to make the case that the government can’t tell search engines how to design their results.
A Free Speech Right?
According to the report authored by UCLA law professor Eugene Volokh: “Google, Microsoft’s Bing, Yahoo! Search and other search engine companies are rightly seen as media enterprises, much as the New York Times Company or CNN are media enterprises” and deserve the same protections. It adds that search engines have the same freedom to choose a set of links as do news aggregators like the Drudge Report or the Huffington Post.
Search engine results are a form of opinion, says the report, in which companies offer information they think is most relevant to users.
In practice, this would mean Google has the right to punt sites like Yelp, which has complained that Google is a monopolist, to the search equivalent of Siberia if it decided that was best for users (Yelp now comes up second in a search for “restaurant review”).
The US has a long history of companies claiming First Amendment protections. One example is a newspaper that was allowed to exclude certain advertisers even though it had a “substantial monopoly.”
The courts have also made a few exceptions to the free speech rule. One case involved a publisher that was sued for providing inaccurate flight maps. Another involved cable providers which, a court said, did not have a free speech right to exclude certain channels.
Volokh’s report says those free speech exceptions don’t apply to search engines because, unlike cable providers, it’s not just a pipe for information. It also echoes Google position that consumers can easily use a competing search engine.
In an interview, Volokh said Google’s situation is also similar to a 1980′s case in which an author launched a failed suit against the New York Times’ over the accuracy of the newspaper’s weekly best-seller list.
Google’s strategy shift
In response to an email query, a source at Google explained Volokh’s report by saying, “we thought these issues were worth exploring in more depth by a noted First Amendment scholar.”
There is another likely explanation for Google’s decision to release the report — to thwart the government from regulating its search results. Recall that the company is in the middle of an ongoing federal investigation into whether it’s using its dominance to choke competition. If Google refuses to settle the matter, the Justice Department may consider filing an anti-trust suit.
Google may have released the report, then, to try and persuade government lawyers that they would lose an anti-trust case on First Amendment grounds.
The report also marks a strategy shift for Google. In the past, the company has responded to anti-trust allegations by saying that it didn’t have a dominant market position and that, in any case, it didn’t discriminate in its results. Google only claimed free speech as a fallback argument.
Now, Google appears to have given up claiming that its results are always neutral and is instead betting the farm on the First Amendment argument.
Only in America?
Courts so far appear to support Google’s view that search rankings are simply another form of opinion that is protected by the First Amendment.
In 2003 an Oklahoma ad company accused Google of harming its business when it downgraded the company in search listings. A federal judge threw out the case on free speech grounds. At the same time, in 2007, a California court said Google’s rankings were “private property” in response to a company that complained that a low ranking violated its free speech rights.
Overall, in the US, Google may have a strong case that its free speech rights override the federal government’s antitrust concerns about its search results.
This argument, however, is unlikely to fare as well in other countries that lack America’s robust free speech protections. In places like Europe and South Korea where Google is also under investigation, the company’s claim that its results are an “opinion” could put it in deeper trouble.
Eugene Volokh, the author of the new report titled “First Amendment Protection for Search Engine Results” is also the author a popular law blog called the Volokh Conspiracy.
(Photo by Aaron Amat)