Report Says Google’s Search Is Protected By First Amendment Rights
May 10, 2012

Report Says Google’s Search Is Protected By First Amendment Rights

Michael Harper for

As Google faces more and more legal trouble for the way they handle users´ information and tailor their results, they´ve commissioned a professor of law slash blogger to write a report in their defense. In it, UCLA law professor Eugene Volokh posits Google has the same rights to put whatever they want in their search results as the New York Times has to decide what news is “Fit to Print.”

In the report, Volokh says, “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,” giving them the right to the same types of protection. Volokh´s report also says Google and other search engines have the same right to include or not include any link they choose, the same way news sources like Drudge Report or Huffington Post can.

“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.”

At the heart of Volokh´s statements is the argument that Google isn´t so much a search engine as they are an editorial service. Therefore, if Google wants to place more importance on one website or one link, then their First Amendment rights give them that power.

“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 continues.

“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.”

More to the point, if Google wants to feature an advertiser higher on their list or even run their search results through another one of their services, they are protected to do so, if Volokh is correct.

By adopting this approach to search, those who oppose Google´s willingness to manipulate their standings or adjust their results have no legal right to object, or more specifically, take them to court.

This argument may not be entirely off-base, however. According to The Atlantic Wire, in the 2003 case of Search King, Inc. v. Google Technology, Inc., a judge ruled the subjective results of a Google search were “constitutionally protected opinions “¦ entitled to full constitutional protection."

If Google goes to court for anti-trust violations, such as those raised by Yelp last year, such a judgment could come in handy to plead their case. Last summer, Yelp had claimed the search engine giant had pushed their results further down the list, placing Google Places results at the top of the list instead.

Of course, if search results really are free speech, Google has every right to do this. It´s a little shady, for sure, but that´s the way a free market economy works sometimes.