Search engine results are protected by First Amendment, argues law professor

Volokh.com | paidContent | All Things Digital
Newspapers make judgments about where to place stories. So do search engines, Eugene Volokh argues in a new paper commissioned by Google, and their editorial judgment should be considered protected speech. Search engines are “speakers,” Volokh writes:

The government may not tell the Huffington Post or the Drudge Report how to rank the news stories or opinion articles to which they link. Likewise, it may not do so for other speakers, such as search engines.

PaidContent’s Jeff John Roberts says this position means Google, which commissioned the report, could assert that squashing search results from competitors is protected speech:

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”).

All Things D’s John Paczkowski says that argument holds as long as “you buy that Google is truly a speaker and not just a conduit for speech.”

The paper, Roberts writes, may represent a preemptive strike by Google to “try and persuade government lawyers that they would lose an antitrust case on First Amendment grounds.” Last December, TripAdvisor, Yelp and WebMD, among other sites, accused Google of favoring its own content. Volokh’s paper doesn’t give any ground on that one:

Whether this is so is a contested question, which turns, among other things, on disputes about what would constitute “neutral” judgments and what would be a departure from those judgments. Yet even if it is assumed that Google engages or plans to engage in such prioritizing, that prioritizing would constitute the legitimate exercise of Google’s First Amendment right to decide how to present information in its speech to its users.

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