Google Results Protected by First Amendment, Says Google-Commissioned Report

Google’s curation of its search results is the algorithmic equivalent of the editorial judgments made by the press, and as such, is protected under the First Amendment of the U.S. Constitution.

This according to University of California law professor Eugene Volokh, who argues — in a Google-commissioned report — that ranking and placement of the company’s search results merit the same free-speech protection as articles in a newspaper.

“Search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information,” Volokh writes. “In this respect, each search engine’s editorial judgment is much like many other familiar editorial judgments.” In support of this argument, he offers a few examples:

• Newspapers’ daily judgments about which wire-service stories to run, and where to feature them
• The judgment of sites such as DrudgeReport.com about which stories to link to, and in what order to list them

There are others, as well, but these two get to the heart of Volokh’s argument: Search results are, at their core, editorial judgments; ergo, if Google were to prioritize its own services over the services of its rivals in them, that’s an entirely legitimate exercise of its First Amendment rights.

In other words, search is speech. And rivals claiming that Google is abusing its market power by favoring its own content over others’, or dropping a site’s ranking or otherwise manipulating its search results (something Google maintains it does not do), may have no other recourse than to accept that those actions, whether they occurred or not, are shielded by the First Amendment.

“Google, Microsoft’s Bing, and Yahoo Search exercise editorial judgment about what constitutes useful information and convey that information — which is to say, they speak — to their users. In this respect, they are analogous to newspapers and book publishers that convey a wide range of information from news stories and selected columns by outside contributors to stock listings, movie listings, bestseller lists, and restaurant guides,” Volokh concludes. “And all of these speakers are shielded by the First Amendment, which blocks the government from dictating what is presented by the speakers or the manner in which it is presented.”

I suppose, if you buy that Google is truly a speaker and not just a conduit for speech.

In any event, it’s an interesting argument, and one that will no doubt see further elaboration if the U.S. Federal Trade Commission launches an antitrust suit over complaints that Google has rigged its search results to the detriment of rivals like Yelp.

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