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Summary:

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.

shouting, free speech
photo: Aaron Amot

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 of a popular law blog called the Volokh Conspiracy.

Volokh First Amendment Paper Copy

(Photo by Aaron Amat)

  1. Tom Robinson Wednesday, May 9, 2012

    How hypocritical for Yelp to complain about Google. We’ve seen Yelp very deliberately allow the negative comments of one medical clinic patient to not just outrank but consistently eliminate the positive comments of dozens of other patients. Yelp demonstrates not just a lack of objectivity but deliberate and arbitrary censorship.

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  2. Oh wow, so from now Google admits that it’s manipulating search results? What happened to “we can not manipulate SERPs”?

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    1. Bob Bigellow Wednesday, May 9, 2012

      Where did you read that they manually manipulate search results? What’s being said here is that their engineers wrote the algorithm and there’s no use in the government intervening with that algorithm. If people think someone else’s algorithm is better, then people can use that one instead.

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      1. If they say that SERPs are just “opinion” that implies they can freely manipulate it, because hey – it’s just an opinion (and that’s what can see EU or SK – that Google can manipulate it’s SERPs). Only in USA telling that SERP is an “opinion” is considered normal. In the rest of the world you can’t say that result of an algorithm is an opinion, because it’s not.

        Besides manual penalties are manual manipulation of SERPs – and Google does it (and they say “we can not manipulate our rankings”). In USA now it will be OK, because it’s just an “opinion” – so they can do whatever they want, however telling so in EU will put them deeper into trouble becuse they will freely admit that they can manipulate their SERPs (as You can freely manipulate opinion – it doesn’t matter what definition in USA “opinion” has – it does matter what definition “opinion” has in EU).

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  3. This is exactly why I use DuckDuckGo as a SEP. They don’t track or bubble…

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    1. Bob Bigellow Wednesday, May 9, 2012

      And this is exactly why I *don’t* use DuckDuckGo. I *want* the search engine to recognize what I’m looking for and to get smarter about search. I don’t want to use a search engine that has Alzheimer’s.

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  4. I don’t think that argument is going to work well. If someone owned 80% of print/tv media and didn’t allow Subway or McDonald’s to advertise on their properties, the government would intervene. I am positive of that. How is this different?

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    1. Fred, in the past Google would argue that competitors can advertise on other search engines like Bing or on other platforms like TV or Facebook. Now, it is also saying that the government can’t tell a search engine how to run its algorithm any more than it can dictate the content of a newspaper (no matter how dominant). Volokh makes a strong case but it will be interesting to see what others (including the Justice Department) think

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      1. Yes, Volokh makes a strong case for Google as he was paid by Google.

        Not surprising as their Lobbyist bill tripled last quarter.

        Anyhow, Google is not reporting the news. They are a search engine which organizes all of the websites in the world. When you are looking for a product or service do you google it or do you hope that an ad will pop by on tv/radio? Globally 90% of people depend on Google to find them these websites and that number is growing as people move to mobile(which they own 97%). If Google decides to favor its own properties and 100% excludes other properties that is 100% anti-competitive. Sorry, that is illegal. So yes, the government would have the right to intervene.

        Let’s say Safeway owned 90% of the supermarkets in the world. And then Safeway decided to only promote its products and started removing other companies’ products. How would those other companies compete? Is your argument that they should use the other 10% of the supermarkets? Or they should use mail-order? It would be impossible to compete. Startups & small businesses lose and the customer loses.

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  5. there is only one first page on google and it only has 10 results. if there are more than 10 competitors, someone is going to “have their first amendment rights violated” by being on page 2 or lower. despite what you learned as a kid in t-ball, not everyone comes in first. thats just math.

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    1. In T-ball I learned the coach’s son always played no matter how bad. He set the lineup. Google sets the lineup. Search for cars – 30% of the real estate is displaying G+ stuff.

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  6. The economics of digital content might be in jepordy. Google has millions of dollars to purchase pay per click (PPC) advertising. In other words, Google can buy all available keyword searches for a particular search term. Everybody else would be left with virtually no way to attract leads.

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  7. It is amazing how Google is trying to protect it’s morality-free-zone policy instead of turning it’s face to people around the globe and their needs.
    How a morality-free algorithmic search can be considered as a “Good Samaritan” (a morality based term) – see CDA Section 230(c) rule, which allows Google to re-post defamatory content and rate such content at the top of it’s search results on someone’s name?
    Now they have paid to Mr. Volokh to cover search results by the First Amendment … wait a second, but the First Amendment DOESN’T PROTECT defamatory /libelous statements at all!
    Mr. Volokh in his article somehow forgets about basic HUMAN RIGHTS, granted by Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights – the International Laws, which supposedly were issued to protect ALL people around the globe!
    Logically such International Treaties should supersede any Domestic Law, if the country signed and ratified them.
    However, not in the US.

    Robotic Search results are “just opinions” … how about the Three Laws of Robotics?

    1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
    2. A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law.
    3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

    Well, along with ICCPR Articles 1-27 they have no power in the US … and who cares about moral principles for robots, except of Isaac Asimov?

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