In case you missed it, the first incident involved a BBC television show that claimed an unnamed former UK politician abused boys. Soon after, people on Twitter used “jigsaw identification” to conclude that the person is question was Lord McAlpine, and some of their conclusions were retweeted 100,000 times. The BBC soon acknowledged the report was false and apologized to Lord McAlpine who said the public hatred he endured was “terrifying.”

Meanwhile, in New York, a man accused Sesame Street puppeteer Kevin Clash of carrying on an affair with him when he was a minor. Even though the allegation were unproved, Twitter immediately lit up with tasteless jokes linking to the Clash story like:

“Voice of Elmo accused of affair with minor nyp.st/TVGXVd” haha no elmo you’re not supposed to tickle me! elmo stop! ahhhh elmoooo!

— Ryan MacNamara (@massnamara) November 12, 2012

Several days later, the accuser recanted his story and said he was of age and that the affair was consensual. On Sunday, the story became more confused with reports of a payoff and a criminal history on the part of the accuser.

Trial by Twitter and libel law

The facts aren’t identical but both situations involve public figures subjected to “trial by Twitter” over terrible allegations. The legal fall-out, however, has been very different.

In Britain, Lord McAlpine has already obtained a libel settlement from the BBC for falsely suggested he was a paedophile on national TV. The legal action didn’t stop there, however. Lord McAlpine’s lawyers have also vowed they will go after “a very long list” of people who repeated the claims on Twitter.

Meanwhile, neither Clash nor Sesame Street have threatened to sue the media or anyone who shared the story on Twitter. This response reflects not only different facts but also very different libel laws in the US and Britain.

“[I]n America it’s hard for famous people (and especially government officials or former high government officials) to sue people for defamation.  The plaintiff has to prove that the defendant knew the allegation was false, or at least knew it was quite likely false,” explained Professor Eugene Volokh, a noted First Amendment scholar at UCLA, in an email. ” Moreover, if the defendant is just stating an opinion (“Based on what I read in this article, so-and-so must be guilty”), that too is constitutionally protected against a libel lawsuit.”

Volokh added the rules are different for non-public figures. In the UK, however, the overall libel law is much stricter and puts the burden of proof on the speaker to show a statement is true. This means the rich and powerful in Britain have long used libel law to intimidate or silence critics.

“The English law has been completely fixated on reputation and undervalued the public interest in free speech, and has been unwilling to protect the media against good-faith mistakes,” according to an email from Professor Stephen Scott, a constitutional law expert at McGill University. “This has not only been in the context of defamation, but in book/magazine, theatre and cinema/video censorship.”

Can you sue 100,000 Twitter users?

If Lord McAlpine’s lawyers follow up their threat, it will be interesting to see how far they get. Under UK law, they can go after not just people who tweeted conclusions about the BBC show but also everyone who retweeted those conclusions. In theory, half the country could be in court by the time this is done.

Those in America are safe from the Lord’s lawyers, however. That’s because Congress in 2010 unanimously passed a law called the SPEECH Act to put a stop to so-called libel tourism — where powerful people around the world would get a libel judgement in London and then show up in America to collect.

Unfortunately, the American shield is of little help to UK Twitter users. Those users not only face legal exposure over Lord McAlpine, but will have to decide whether to self-censor the next time the BBC reports news they can’t confirm. While false accusations about paedophilia are a terrible thing, such  legal campaigns that stymie free expression may prove an even greater evil.

As services like Twitter cause news to spread faster and more broadly than ever, courts in the UK and elsewhere will have to find new ways to balance reputations and free speech.

[Update: A reader objected to the original headline which said “BBC and Elmo sex scandals.” My intent was to provide context not sensationalism but I take the point and have updated:

Hey GigaOm, you think maybe we could NOT use the phrase “Elmo sex scandal” in headlines? gigaom.com/2012/11/18/twi…

— Jillian C. York (@jilliancyork) November 19, 2012

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Under a proposed  law, students who use the internet to “torment or intimated a school employee” can be convicted of a misdemeanor and fined $1000. This law says such torment can include building a “fake profile or website,” posting a “real or doctored image” or signing up a teacher for an online porn site.

The proposal comes as courts are trying to balance students’ free speech rights against a rise in online abuse directed at school officials. In one case, a court sided with a student who made a parody site with his principal’s picture and phrases like “steroid freak” and “big whore.”

• See also: Can a school get your kid’s Facebook password?

While students have always mocked school figures, online media can produce insults that are especially cruel and widespread. In college, I recall seeing a professor consoling a crying librarian who had found a website on which students disparaged her appearance and more.

The proposed North Carolina law, first reported by the Wall Street Journal, appears well-intentioned but may fail First Amendment scrutiny. As always in these situations, there may be a will to stamp out cyber-bullying but not a way.

(Image by tommaso lizzul via Shutterstock)

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The tweets belong to Malcolm Harris, who was among hundreds arrested last year during a protest that spilled onto the Brooklyn Bridge.

The case became a media sensation after Twitter notified Harris about prosecutors’ demands for his account. Harris then challenged the demand but, in a remarkable decision, Judge Matthew Sciarrino Jr., ruled that he had no standing because the tweets did not belong to him.

After Twitter stepped in on Harris’s behalf, Sciarrino issued another unusual decision that suggested people have little or no constitutional rights in what they publish on social media.

Twitter is appealing the rulings but Sciarrino effectively shut down the appeal this month by ordering the company to turn over Harris’ account or face a contempt of court order and a large fine.

Sciarrino’s brash series of orders are all the more striking because the judge himself has been disciplined for misusing social media, including allegedly attempting to “friend” lawyers on Facebook and updating his status from the bench.

• See also: The Facebook-addicted judge and the little blue bird

According to Reuters, which first reported the story, Twitter handed over the tweets this morning and they will remain under seal under at least next week when Harris will argue another appeal. His criminal trial is set to go forward in December.

The case is significant because it is helping to define privacy and free speech in the age of social media. While tweets are by their nature public statements, Harris had deleted them. The issue of whether or not they are still public documents is an open question but the more pressing legal issue is over who owns them in the first place.

Twitter is adamant that users own their tweets, which makes Sciarrino’s ruling that Harris has no standing a potentially egregious error. If his finding is overruled, it will confirm that users can stand up for their own speech and privacy rights.

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The case involves a 12-year-old girl who used Facebook to diss the hall monitor, writing “[I hate] a Kathy person at school because [Kathy] was mean to me.” She also used the social network to talk about “naughty things” with a boy. When one of her “friends” ratted on her, the girl wrote on her Facebook wall, “I want to know who the f%$# told on me.”

Three school officials, including a counselor and a taser-wearing cop, came down hard. They interrogated her in an office and badgered the sobbing girl until she handed over her passwords. They proceeded to go through her Facebook and email accounts to find the “naughty” discussion she had with the boy.

Now, the school is in hot water. U.S. District Judge Michael Davis ruled that the school appears to have violated the girl’s free speech and privacy rights. He wrote:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door  …  The movement of student speech to the internet poses some new challenges, but that transition has not abrogated the clearly established general principles which have governed schools for decade

Davis noted that there is a clear exception to the rule that schools can’t infringe on students’ free speech rights —  when there is a clear threat of violence with a connection to the school. This obviously wasn’t the case in Minnesota since the girl’s Facebook activity took place outside of school.

The decision, first reported by Seattle lawyer Venkat Balasubramani, comes at a time of a growing backlash against school and workplace attempts to pry into people’s social media lives.

Davis’ ruling also provides an interesting tour of other cases in which students push the social media envelope, sometimes in very unpleasant ways. In one example, a court upheld the speech rights of a student who made a MySpace parody of his principal:

the student featured a picture of the principal (taken from a school website) and stated that the principal was “too drunk to remember” his birthday and was also a “big steroid freak,” a “big whore,” and a “big fag.”

Students’ social media activity may be upsetting or disrespectful but it’s nothing new — Bart Simpson, the Beastie Boys and others have trash-talked teachers since the dawn of school. The platform is different but the behavior is not.

Judge Davis’ decision , which came in response to the school’s request to dismiss, is here:

Minnesota Student First Amendment
(Image by 3445128471 via Shutterstock)

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The Virginia man at center of the case, Daniel Ray Carter, clicked to “Like” the “Jim Adams for Hampton Sheriff” page in 2009. The incumbent sheriff learned of his subordinate’s “Like” for his opponent and fired Carter shortly after he won re-election.

Ordinarily, it is against the law to terminate employees for their political opinions. When Carter sued, however, a Virginia judge ruled in April that, unlike writing a message on Facebook, the act of clicking a “Like” did not amount to speech worthy of First Amendment protection.

Carter appealed the decision and this week Facebook filed to support him. In its brief, the social network says a “Like” is protected symbolic speech like a bumper sticker or a campaign lawn sign — both low-cost ways for citizens to express their political opinions.

The appeal will turn on the original judge’s conclusion that the “Like” was insignificant speech that did not involve “actual statements.” Facebook is countering this by pointing out that the “Like” appeared on Carter’s profile page and in the news feed of Carter’s friends. The evidence also showed that others in the sheriff’s office saw the “Like” and predicted that Carter would be “out of there” because of it.

Carter is likely to prevail. US courts have long protected a wide range of symbolic speech such as arm bands and flag burning. Recently, a federal judge expressed support for a vice-principal who was fired for having a symbolic hot dog cook-out in support of poorer students at the school.

Prominent First Amendment scholars like UCLA’s Eugene Volokh have also supported Carter’s position, saying a “Like” clearly is speech.

The Facebook Like case is just the latest in a series of decisions in which courts have struggled to apply Constitutional rights like free speech and privacy in the context of social media. In another high-profile case, Twitter is appealing a New York judges’ ruling that an Occupy Wall Street protestor has no constitutional rights in his tweets.

Update: The American Civil Liberties Union has also filed a brief to support Carter.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” said ACLU attorney Aden Fine.

Here is Facebook’s brief in support of Likes as free speech:

Facebook 1st Amendment

(Image by Vince Clements via Shutterstock)

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The decision is probably the right one given the language of the law but this case should serve as a sign that something’s wrong in how we prioritize online content. Why does the entertainment industry get a stick with which to beat web sites while child prostitutes are left empty-handed?

Laws should encourage free speech online

Whether we’re talking about classified ads, obscene material or copyright, the arguments on both sides are generally the same. Those who propose laws typically see a criminal enterprise and claim it’s time to regulate the platforms that enable these crimes to take place. Opponents say the bills will have unduly burdensome effects on providers by forcing them to monitor every piece of content that hits their servers. Alternatively, they say, such bills will chill free speech by encouraging providers to limit drastically the types of content they host in order to avoid the burden of monitoring.

The last time a proposed law — the Stop Online Piracy Act — tried to force web sites and service providers to monitor content proactively, the companies and web users it would have affected reacted fiercely. They were so outraged they blacked out parts of the web and launched crowdsourced movements to write new internet constitutions and influence internet policy. Fair enough.

Due to the nature of how the internet and web operate, it’s easy to side with those wanting to protect providers and web sites. Unless they’re actively encouraging the criminal behavior that laws want to regulate, it’s difficult to hold sites and services accountable for the activity (and complaints) of potentially millions of users.

Hence Section 230 of the Communications Decency Act, which generally exempts service providers from liability for user-provided content, even when providers are notified such content might be obscene or otherwise illegal. This is the statute on which the judge in the aforementioned case — brought by Backpage.com and the Internet Archive — centered his to decision to suspend implementation enforcement of Washington’s anti-child-prosititution law. (For a good explanation of the extent of this immunity from liability, and a lengthy hypothetical application to Wikipedia content, check out this 2006 article from the Harvard Law Review.)

Unless we’re talking about copyright

However, as anyone even casually aware of the Digital Millenium Copyright Act might be aware, not all content is created equal. That act’s widely cited “safe harbor provision” actually restricts a great deal of the immunity the CDA would normally provide sites like YouTube against claims of copyright infringement. In fact, the CDA expressly excludes intellectual property law from the scope of its coverage.

Under the DMCA, when service providers receive notice of allegedly infringing content, they must either undertake the effort to determine whether it’s legally infringing or just take the content down until/if the user who posted it rebuts the purported content-holder’s claim. This process can be terribly burdensome on service providers that don’t simply want to act as a rubber stamp for censorship by removing whatever content is contested. Indeed — as Google has showed time and time again — there are a lot of false, or at least questionable, claims filed under the DMCA.

If it works for copyright, why not prostitution?

It’s difficult to comprehend why it’s acceptable to impose burdens on service providers and potentially chill free speech in the name of preventing copyright infringement, but not in the name of preventing prostitution. Why should Facebook, for example, be forced to act upon a claim about someone posting a video without permission but not about someone trying to sell a minor for sex?

To be clear, the proposed law in Washington might be a bit extreme in all but requiring service providers to attempt to verify in person the ages of the advertised escorts. For a variety of reasons — including the global nature of the web and questions about jurisdiction — this is probably infeasible. The Washington law is also far too broad, potentially covering everyone from Backpage.com (the lead plaintiff in the case) to co-plaintiff and intervenor the Internet Archive.

It might not be infeasible, however, to require sites and service providers to examine somehow claims of child prostitution like they do copyright claims. (I suspect many already do in some cases, and almost all web site terms of service grant them the permission to remove objectionable content.) And if laws were rewritten to cover only sections on sites that advertise “escort services” or other clear euphemisms for prostitution, that’s certainly less burdensome than imposing requirements across every piece of content on the web.

Regulating content on the internet is a complex issue and attempts to do so in a meaningful manner often skirt the bounds of what’s constitutional. It’s unclear what methods for fighting a problem such as child prostitution would be both effective and legal. But it’s also debatable that the DMCA is a fair or effective law. If Congress thinks it’s alright to suspend concerns about free speech when it comes to the background song in a YouTube video, maybe doing so for allegations of child abuse isn’t such a crazy idea.

Image courtesy of Shutterstock user Rugierro S.

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In a post on Tuesday entitled “First they came for WikiLeaks, then the New York Times,” we wrote about how there is growing evidence that Congress and the Justice Department may be considering legal sanctions against traditional journalists who publish classified information — in other words, extending the kind of legal attacks they have been making on WikiLeaks to the traditional media such as the New York Times. In an emailed response to that post, former NYT executive editor Bill Keller said he strongly agrees that an attack on WikiLeaks’ right to publish such leaked documents is an implicit attack on the media as a whole, and that the mainstream media should protest any prosecution of the organization as a betrayal of the First Amendment.

In my post, I described how some members of a House Judiciary subcommittee seemed to be looking to experts for legal grounds under which they could charge journalists for publishing leaked classified information. The Department of Justice has also reportedly been warning reporters that if they publish such documents they could face prosecution — in the same way the DoJ is said to be pursuing a case against WikiLeaks and its controversial founder Julian Assange under the Espionage Act, (despite the fact that the government’s own researchers say using the act to go after journalists instead of leakers is a questionable strategy).

If WikiLeaks is under attack, journalism is under attack

My point was that if WikiLeaks, which I have argued before is a media entity — although one very different from the New York Times — is subject to that kind of prosecution for publishing classified information, then the NYT or any other traditional media outlet is in danger of being prosecuted as well. I also said that most mainstream media companies had been relatively silent on this point until now, but Keller noted in his email that he has repeatedly agreed that an attack on WikiLeaks is an implicit attack on media and journalism. As he put it:

I’ve said repeatedly, in print and in a variety of public forums, that I would regard an attempt to criminalize WikiLeaks’ publication of these documents as an attack on all of us, and I believe the mainstream media should come to his defense.

Keller went on to say that despite the rumblings from Congress that I referred to in my post, the government so far hasn’t made an official move against either Julian Assange or WikiLeaks. If a prosecution under the Espionage Act did in fact occur, Keller said he hoped to see news organizations of all kinds and press-freedom advocacy groups “filing briefs and otherwise objecting.” The NYT’s former executive editor also admitted that the newspaper’s relationship with Assange had been fractious, but said that personal feelings about the WikiLeaks founder shouldn’t prevent media organizations from coming to his defense:

You don’t have to embrace Julian Assange as a kindred spirit to believe that what he did in publishing those cables falls under the protection of the First Amendment.

Even if it isn’t journalism, it deserves protection

In a follow-up email, Keller also noted that he had made similar statements about the necessity of defending Assange and WikiLeaks’ publication of classified documents in a New York Times magazine piece excerpted from the introduction to “Open Secrets: WikiLeaks, War and American Diplomacy,” a book about the organization’s publication of thousands of diplomatic cables and the NYT’s role in that effort. In the piece, he said:

While I do not regard Assange as a partner, and I would hesitate to describe what WikiLeaks does as journalism, it is chilling to contemplate the possible government prosecution of WikiLeaks for making secrets public, let alone the passage of new laws to punish the dissemination of classified information, as some have advocated… criminalizing the publication of such secrets by someone who has no official obligation seems to me to run up against the First Amendment and the best traditions of this country.

As I wrote at the time Keller’s excerpt was published, it seemed as though the former NYT editor was grudgingly coming to admit that what WikiLeaks did was close enough to being journalism that — even if it wasn’t journalism with a capital J, or published by professional journalists — it deserved the full protection of the First Amendment. That’s a message it would be nice to hear from more journalists of Keller’s calibre.

Post and thumbnail images via Charlie Rose and Flickr user jphilipg

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In a unanimous ruling, the court declined to take up larger First Amendment questions about the degree to which swearing and nudity are protected speech. Instead, the justices found that the federal regulator had used overly vague guidelines to sanction Fox and ABC news and failed to give the broadcasters adequate notice about the rules.

In the case of Fox, the decision turned on so-called “fleeting expletives” such as when celebrity Nicole Richie make the unscripted remark  “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple” during an award show. The FCC warned Fox but did not fine the station but it did levy a fine on ABC News for showing an actress’ bare bottom for seven seconds.

The Court concluded that, since it could throw out FCC’s swearing and nudity decisions on vagueness grounds, it did not have to take up the First Amendment questions.

The question of swearing, free speech and broadcasting remains informed by a 1978 Supreme Court decision involving comedian George Carlin’s “Filthy Words” monologue.

In an odd pairing, liberal Justice Ruth Ginsburg and conservative Justice Clarence Thomas added a one paragraph concurring opinion arguing that the Carlin case was out of date due to “time” and “technological advances” and should be reconsidered.

To learn more about the fleeting executives case, see our earlier Q & A.

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As general counsel for Avvo, a social media startup that offers an expert-only Q&A forum and profiles and ratings of lawyers, doctors and dentists in the U.S., I’ve seen firsthand how those with the means to do so will exploit any opening possible to try to silence speech they do not like. I’ve responded to hundreds of lawsuit threats and lawsuits against Avvo on grounds ranging from privacy to commercial misappropriation to unfair competition to copyright or trademark infringement — all for activity that is soundly protected by the First Amendment.

The takeaway is simple: any attempt to regulate speech online — whether in service of “stopping piracy” or “defending against cyberattack” — must be ruthlessly interrogated for how it will be abused. Because it will be abused. Those with censorious impulses will push the four corners of the law as far as possible to silence speech they don’t like. It is depressingly common to see the mere threat of a lawsuit cause a withering of speech online. It’s vitally important that we recognize and call out the certainty that even well-intentioned laws that impact expression will be used as a bludgeon against the open expression of information and ideas online. In addition to opposing SOPA and its ilk, here are three areas where companies can take a stand to protect free speech on the Internet.

1. Retain anonymous comments.

Are anonymous comments less credible than those attributed to a person? Of course. Does anonymous commentary increase the likelihood of “flaming” attacks and false statements? Naturally. But anonymity has its place. Anonymous authorship of the Federalist Papers allowed the founders of the republic to circulate ideas unsullied by the personality of those espousing them. Anonymity offers protection from retaliation and harassment. And in the case of today’s online forums, it allows the posting of sensitive material (think, for example, of doctor reviews by patients) free of privacy concerns. Ultimately, it should be up to readers to determine whether they trust an anonymous comment rather than censor the message altogether. The cure for speech you don’t like shouldn’t be to curtail it, but to create an environment in which more speech can flourish.

2. Support existing laws enabling online forums. 

Credit for much of the robust sharing of ideas and information online can be laid at the feet of Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA). Although the DMCA in particular was controversial among free speech advocates when it was enacted, it created a good balance between the needs of online forums and those of rights holders. And by immunizing interactive service providers from liability for third-party comments, CDA 230 enabled the flourishing growth of user-generated content, from reviews on Yelp to videos on YouTube. These two stalwarts are the sort of laws those of us in the online community should stand behind — laws that allow breathing space on the Web without limiting free speech. Attempts to gut these laws — whether legislatively (SOPA) or judicially (Viacom’s continuing battle with YouTube) — should be actively resisted by all who care about robust and free-flowing interaction online.

3. Enact a national anti-SLAPP law.

“Strategic lawsuits against public participation” are a form of “lawfare,” a use of the courts to bully speakers into staying silent for fear of incurring the costs of defending a lawsuit. As a company that rates and profiles lawyers, Avvo has seen more than its share of threatened and actual lawsuits. Fortunately, Avvo is based in Washington, which — along with California, Texas and a number of other states — has a robust anti-SLAPP statute. Such statutes level the playing field by allowing those exercising their First Amendment rights to quickly dispose of lawsuits designed only to silence them. And as the last attorney to sue Avvo discovered, losing a SLAPP suit in Washington state also means paying our attorney fees and a $10,000 fine.

But not every state has such protections. In New York, Florida and dozens of other states, it’s still far too easy for speech to be chilled by the prospect of defending against uncertain and costly litigation. To help change this, the Public Participation Project (PPP) is spearheading the effort to enact full anti-SLAPP protections at the federal level. Such a law would end forum shopping in defamation cases and be a powerful development for free speech online. I’m on the board of the PPP, and I encourage everyone with an interest in free speech to support its good work.

As the Internet becomes more and more vital to our daily lives, it is inevitable that legislators will continue to propose laws restricting it. Many of these laws will be cast in moral tones, imploring us to “think of the children,” protect people from cyberbullying or save us from criminals. These may be laudable goals, but it’s incumbent on the Internet community to ask whether the price in free speech online is worth it. And it’s not going to be. There’s no way to restrict just the bad and preserve only the good. Limits and restrictions invariably favor one class of speaker over another, impoverish the discourse and reduce transparency. Ultimately, the answer to concerns about the messiness of communication online lies in what caused the messiness in the first place: Keep the discussion as wide open as possible.

Josh King is vice president of business development and general counsel of Avvo, a free social media platform that provides a health and legal Q&A forum and a directory of doctors and lawyers in the U.S.

Image courtesy of Flickr user Newtown grafitti.

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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)

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