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Summary:

Google says the First Amendment should apply to its search results — even if this allows the company to favor its own products over those of its competitors. Is this a legitimate argument?

Rumors are swirling that the federal government is about to sue Google over claims that the company rigs its search results. Google has responded by invoking its right to free speech — but not everyone is buying this.

Tim Wu, a prominent law professor at Columbia, is not convinced that Google is invoking its First Amendment rights in good faith. He suggests that Google and other big companies are cynically invoking constitutional freedoms as part of a corporate deregulation agenda.

“We’re living in a golden age of First Amendment opportunism,” said Wu, speaking Friday at a Penn Law School conference titled “The Evolving Internet.”

In Wu’s view, search results are not really speech in the first space. Instead, he argues, Google’s algorithms are closer to other automated communication tools like navigation devices or even car alarms.

Google, of course, doesn’t share this view. The company prefers to be compared to a newspaper editor — whose choice of what to put in the paper is an undisputed free speech right. In practical terms, this means Google should be able to favor its own restaurant reviews over competing services like Yelp.

So who is right? Most of us would agree with Wu that Google’s search results fall somewhere in the middle of a communication continuum where the editor is on one end and the car alarm is on the other. The hard question is whether Google is far enough along the line to qualify for the First Amendment.

More broadly, this dilemma doesn’t apply just to Google. In the age of the algorithm, other companies may also rush to protect computer-based communication. Should Amazon, for instance, be allowed to argue that its product recommendation are a form of free speech?

The point here is that the choice of whether or not to sue Google is part of a larger process in which the country must decide where free speech stops and legitimate regulation begins.

(Image by kentoh via Shutterstock)

  1. I strongly disagree with this statement: “Most of us would agree with Wu that Google’s search results fall somewhere in the middle of a communication continuum where the editor is on one end and the car alarm is on the other”.

    Most would agree that Google’s result are protected editorial speech and I find this bizarre notion you express about wanting to limit speech is decidedly un-American, especially during these times when freedom of expression is under attack.

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    1. Thanks for your comment, Jon. FWIW, I don’t agree with Wu’s ultimate conclusion re Google; I do think he makes a good point that we can’t characterize all communication tools (ie a car horn) as protected speech. I think Wu’s real insight here is that corporations are tempted to use the First Amendment as a means of dodging legitimate and useful regulation.

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      1. Wu is a regulations guy and such that is the hammer for every nail he encounters. The thing about freedom of speech is that it’s absolute. And in a country like the US where money is speech surely actual speech in the form of the content and looks of a search results page is protected, and I think you’d agree are more sophisticated than a car horn.

        The supreme court recently acknowledged that violent video games are a form of speech, notice that they are software as well, more on that see:

        We’re Not Censoring YOU—Just Your Computer! http://www.cato-at-liberty.org/were-not-censoring-you-just-your-computer/

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  2. Well, as long as there is no misrepresentation, I’m fine with it. In the earlier days, Google claimed that their search results were not tampered with by humans in any way and it’s fully algorithmic that’s unbiased to any financially motivated promotions. Now, if that’s no longer true, google needs to come out and say so very clearly. Also, their past behavior has set some expectations in users mind and may well have defined the bar for search engines industry as a whole. Just like a news paper has a clear editorial section to publish opinions that are not necessarily pure journalistic news reporting, and the rest of the news sections are, similarly google needs to clearly indicate what is “journalistic” and what is “editorial”. So, it’s not really a question of first amendment, but more about user expectation and misrepresentation.

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  3. Google can play newspaper editor if they want, but that means they’ll be legally liable for everything that pops up in their services, libel law, copyright issues, right to reply etc

    They can’t play newspaper editor and have the same safe harbour rights given to ISPs. Pick one Google.

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  4. Jon, what’s the difference between Wu and you? Could we not also say, “Jon is a freedom of speech guy and such that is the hammer for every nail he encounters”? Both of you are absolutists, aren’t you?

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  5. IMHO this question cannot be answered quickly with simple reference to existing law, constitutional and otherwise. Good law and rules for society emerge from long debate and consensus, and a good economy and society emerges as a result of an efficient competitive marketplace. In modern times the bulk of economic activity has concentrated into huge entities that exhibit the characteristics of oligopoly if not monopoly.

    I favor Google … at the moment … but want to be able to move to other suppliers of search when I choose, based on the performance of the various companies and products. I would like the rule and law makers to focus more on the broader question of markets and competition rather than on the minutae of corporate behavior in the existing framework of law and regulation.

    I would also ask that the conversation include not only what is good for the companies and the investors, but also on all the other stakeholders including society at large. Up to now only a rather small amount of the productivity arising from the technology revolution of the last 40 years has accrued directly to society, an inordinate amount … almost the whole … has gone to investors and investor/executives.

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  6. Search engines cannot be compared to a news editors. The beauty of Google is its neutrality, or at least perceived one. And the fact that its math driven makes it even more appealing. We are not driven to consume a piece of information because Google says so. We do it as our peers do all over the world. The moment Google starts behaving like an editor, it will bring in bias, which is completely against what Google is all about. IF Google does wish to behave like an editor, it has to be clearly differentiated. Let the user decide if it wishes to read or consume what Google is recommending. This cannot be part of the algorithm driven search.

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    1. “Search engines cannot be compared to a news editors. The beauty of Google is its neutrality, or at least perceived one.” And therein lies the rub. Google jiggers its search results all the time – to lower the ranking of content farms, for instance. Google isn’t neutral.

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    2. Not being snarky Tuesday, October 23, 2012

      Google is all and only about making money, to think otherwise is naive, for them to suggest otherwise is disingenuous.

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  7. what about bell telephone companies right to freedom to charge whatever they want for their services?

    googles results is as free speech as muslim peoples right to a modest clothed society.

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  8. I think that Google is as right as Apple not selling books that have links to Amazon (see Seth Godin) and Barnes & Noble not allowing books published by Amazon in their stores. I am sure that Bing would also like to, and may, filter (or sort) search results in some way. It’s all in the name of “business as usual” or so it would appear.

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  9. I have always found the framework for this argument to be bothersome. The car alarm, newspaper, and the algorithm are the medium in which information/ speech is transmitted, not the information/speech itself. For example, if i used the car alarm hardware to blare out a thesis on the harm of auto theft any time someone tried to break into my car, would that not be protected free speech? Should we not judge on the basis of the content of the speech and not the medium in which it is delivered?

    The other problem I have is if a company can have rights in and of itself, which legally they can now, you must ask yourself: is a recommendation on where to shop, what to read, or how to spend time protected speech? If the answer is yes, then how is a company using a computer algorithm that much different than what you or I do to come up with a recommendation? For example, you ask me what are the Greek restaurants in Winston Salem. I will then take all the restaurants that serve Greek food, and list them more or less in order based on a criteria. That criteria is made up of weighted factors like the taste of the food, how fast the service is, the distance from where you are, and price. That sounds a lot like an algorithm to me.

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  10. “The thing about freedom of speech is that it’s absolute.” This is a very shallow understanding of free speech law.

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