Google-Backed Scholar: Search Results Protected by the First Amendment

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In a Google-funded report on the constitutional rights of an Internet search, UCLA law professor—and blogger—Eugene Volokh makes a lofty claim about the legal rights of any given Google search: The weight, placement, and even omission of search results deserve the same free speech protection as the articles on the front page of The New York Times. As such, Google deserves protection against all those pesky anti-trust accusations that people have been throwing at them. If you think these ideas are a little bit hard to swallow, read on. It does make a little bit of sense.

Volokh argues for the First Amendment rights of search results on three grounds. First, search results "convey information that the search engine company has itself prepared or provided (such as information about places appearing in Google Places)," and second, "they direct users to material created by others." Finally, and this is the clincher, "search engines select and sort the results" so that they're most valuable to the users. This "editorial judgment," he says, is comparable to The Times picking and choosing which stories to run in the daily paper or points of view to take in an editorial. In other words, Google search results, in their own unique way, are like little opinion pieces. 

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The First Amendment claim isn't completely without precedent. In the 2003 case Search King, Inc. v. Google Technology, Inc. a judge ruled that the subjective results of a Google search were "constitutionally protected opinions … entitled to full constitutional protection." This decision will come in handy if and when Google goes on trial for alleged antitrust violations such those raised by Yelp last summer. Yelp claimed that Google pushed links to its pages down on the results list so that users would click the Google Places results instead. However, when hiding behind the shield of the First Amendment, Google can basically omit any search results it wants.

But doesn't it seem a little bit weird that a list of Web links sorted algorithmically is considered free speech? Not when you remain open-minded about the definition of speech in the 21st Century. Jeff Jarvis, author of Public Parts, implored his readers to do so in a brief 2008 essay. He wrote: "The internet is the First Amendment brought to life. Our First Amendment argues that it is both undesirable and impossible to contain speech and the marketplace of ideas. The internet enforces that idea." Whether or not the protection of free speech will keep Google from ending up on the wrong side of an antitrust lawsuit, we'll have to wait for a court to decide.

Read Volokh's Full Report:

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