Does The First Amendment Create A Complete Defense For Google Against Antitrust Regulation?

Google now faces antitrust investigations on multiple continents. The US FTC recently hired a prominent outside litigator in a sign that it may be preparing to bring an action against the company. But does Google have a “slam dunk” defense against such a case (at least in the US) under the First Amendment of the Constitution?

A Preview of Google’s Legal Arguments?

Yes says UCLA Law Professor Eugene Volokh in a new paper-cum-legal brief. The document, which was commissioned by Google, also serves as a kind of template for legal arguments Google might make in a US antitrust case. The release of this paper is no doubt designed to “remind” Congress and the FTC that this law exists and that Google would potentially win an antitrust case on these grounds.

The 27 page document (below), replete with case law citations, can be summarized in one sentence: search engine results are editorial judgments, like newspaper content, protected by the First Amendment and thus precluded from being regulated by antitrust law and the US government as protected speech.

Professor: Nobody Can Dictate What Google Can “Say” in SERPs

Professor Volokh argues that Google may put whatever it likes in the SERP in whatever order it deems worthy, including links to its own properties and services and nobody is entitled to intervene and dictate how Google may display search results. It will be a shocking (though not entirely novel) argument to those who’ve complained against Google.

Volokh says two cases, Search King, Inc. v. Google Technology, Inc. (2003) and Langdon v. Google, Inc. (2007), firmly and conclusively establish that search results are protected editorial speech. While the US Supreme Court has not ruled on the specific question of whether search results are protected speech under the First Amendment, Volokh cites numerous Supreme Court decisions that together stand for the idea that “the First Amendment fully protects Internet speech” and “fully pro­tects Internet speakers’ editorial judgments about selection and arrangement of content” (i.e., Google).

The First Amendment vs. Antitrust Law

The most interesting part of the paper concerns the application — or lack of application goes the argument — of antitrust law to Google’s organic SERPs. (The document doesn’t discuss AdWords.) Volokh admits that the government has authority, in some cases, under antitrust law to regulate companies such as newspapers when their practices discriminate unjustly against competitors. However, he argues, this does not extend to matters of editorial discretion, even where the speaker has a “substantial monopoly.”

Volokh cites cases that stand for the broad idea that the protected exercise of speech cannot be regulated by antitrust law: “search engines’ selection and arrangement decisions reflect editorial judgments about what to say and how to say it, which are protected by the First Amendment.” He adds, “[E]conomic regulations may not be used to require a speaker to include certain material in its speech product.”

The bottom line argument is that even under the guise of antitrust enforcement the government cannot interfere with protected (and absolute) editorial discretion (i.e., the Google SERP).

Is Google More Like a Cable TV Company or a Newspaper?

One case that “goes the other way” and could potentially support regulation of the Google SERPs is called Turner Broadcasting System, Inc. v. FCC (1994). That Supreme Court case held that cable TV operators can be forced to carry programming against their will under federal law. The cable companies had argued that the federal “must carry” law was impermissible content regulation barred by the First Amendment.

Volokh distinguishes the case and argues Google and search engines are not like cable TV companies in several respects. He says in the Turner case there was almost no other way for consumers to access the disputed programming. By contrast he says there are plenty of other ways online to get access to content other than on Google. People can use Bing or Yahoo for example.

The Turner court reportedly held that the cable companies were mere “conduits” of third party speech and not editorial content producers themselves (like newspapers). Google is more like a newspaper than a cable TV company says Volokh. Yet I’m not quite sure the Turner case is that easily brushed aside.

Google is not generating the contents of its own SERPs (except in selected cases such as Google Maps or Google+). Rather it, like cable companies, is conveying third party speech and content (in the form of links). One could persuasively argue that Google is in fact more like a cable company than a newspaper.

Still the government would have a formidable challenge to overcome the weight of First Amendment case law that Volokh cites, which supports Google’s “absolute” discretion over what shows up in SERPs. I agree that it appears a very tough case for the feds to make.

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