Google First Amendment Protection for Search Engine Search Results

2012] 883

GOOGLE

IRST AMENDMENT PROTECTION FOR SEARCH ENGINE

EARCH RESULTS

Eugene Volokh & Donald M. Falk

♦

INTRODUCTION ...................................................................................... 884

I. A

CCUSATIONS AND FACTS ............................................................ 885

II. T

HE FIRST AMENDMENT FULLY PROTECTS SEARCH

NGINE RESULTS ........................................................................... 886

A. The First Amendment Fully Protects Internet Speech ............ 887

B. The First Amendment Fully Protects Editorial Choices About

What to Include or Exclude in One’s Speech Product............ 887

C. That Search Engine Results Are Created with the Help

of Computerized Algorithms Does Not Rob Them of

First Amendment Protection ................................................... 888

D. The First Amendment Fully Protects Facts and Opinions on

Nonpolitical Subjects .............................................................. 889

E. The First Amendment Fully Protects Interactive Media ........ 890

F. The First Amendment Fully Protects Aggregation of

Materials Authored by Others ................................................ 891

G. The Rules Governing Speech That Is Acted on Mechanically

Are Inapplicable Here ............................................................ 892

H. Google Has Never Surrendered the Right—Which All

Speakers Possess—To Choose What Information It

Presents and How It Presents It ............................................. 893

III. T

HE FIRST AMENDMENT PROTECTS SEARCH ENGINE RESULTS

GAINST ANTITRUST LAW ............................................................ 895

ONCLUSION ......................................................................................... 899

♦

Eugene Volokh: Academic Affiliate, Mayer Brown LLP, 350 South Grand Avenue, 25th Floor,

Los Angeles, CA 90071-1503, (310) 206-3926. Donald M. Falk: Partner, Mayer Brown LLP, Two Palo

Alto Square, Suite 300, 3000 El Camino Real, Palo Alto, CA 94306-2112, (650) 331-2030. This article

is the published version of a White Paper commissioned by Google, but the views within it should not

necessarily be ascribed to Google.

884 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

NTRODUCTION

Once, the leading sources to which people turned for useful informa-

tion were newspapers, guidebooks, and encyclopedias. Today, these

sources also include search engine results, which people use (along with

other sources) to learn about news, local institutions, products, services, and

many other matters. Then and now, the First Amendment has protected all

these forms of speech from government attempts to regulate what they

present or how they present it. And this First Amendment protection has

applied even when the regulations were motivated by a concern about what

some people see as “fairness.”

Google, Microsoft’s Bing, Yahoo! Search, and other search engines

are speakers. First, they sometimes convey information that the search en-

gine company has itself prepared or compiled (such as information about

places appearing in Google Places). Second, they direct users to material

created by others, by referencing the titles of Web pages that the search

engines judge to be most responsive to the query, coupled with short ex-

cerpts from each page. Such reporting about others’ speech is itself consti-

tutionally protected speech.

Third, and most valuably, 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. (That is how each search engine

company tries to keep users coming back to it rather than to its competi-

tors.) This selection and sorting is a mix of science and art: It uses sophisti-

cated computerized algorithms, but those algorithms themselves inherently

incorporate the search engine company engineers’ judgments about what

material users are most likely to find responsive to their queries.

In this respect, each search engine’s editorial judgment is much like

many other familiar editorial judgments:

• newspapers’ daily judgments about which wire service stories to

run, and whether they are to go “above the fold”;

• newspapers’ periodic judgments about which op-ed columnists,

lifestyle columnists, business columnists, or consumer product col-

umnists are worth carrying regularly, and where their columns are

to be placed;

• guidebooks’ judgments about which local attractions, museums,

stores, and restaurants to mention, and how prominently to mention

them;

• the judgment of sites such as DrudgeReport.com about which sto-

ries to link to, and in what order to list them.

2012] FIRST AMENDMENT PROTECTION 885

All these speakers must decide: Out of the thousands of possible items

that could be included, which to include, and how to arrange those that are

included? Such editorial judgments may differ in certain ways: For exam-

ple, a newspaper also includes the materials that its editors have selected

and arranged, while the speech of DrudgeReport.com or a search engine

consists almost entirely of the selected and arranged links to others’ materi-

al. But the judgments are all, at their core, editorial judgments about what

users are likely to find interesting and valuable. And all these exercises of

editorial judgment are fully protected by the First Amendment.

That is so even when a newspaper simply makes the judgment to cover

some particular subject matter: For instance, when many newspapers pub-

lished TV listings, they were free to choose to do so without regard to

whether this choice undermined the market for TV Guide. Likewise, search

engines are free to include and highlight their own listings of (for example)

local review pages even though Yelp might prefer that the search engines

instead rank Yelp’s information higher. And this First Amendment protec-

tion is even more clearly present when a speaker, such as Google, makes

not just the one include-or-not editorial judgment, but rather many judg-

ments about how to design the algorithms that produce and rank search

results that—in Google’s opinion—are likely to be most useful to users.

Of course, search engines produce and deliver their speech through a

different technology than that traditionally used for newspapers and books.

The information has become much easier for readers to access, much more

customized to the user’s interests, and much easier for readers to act on.

The speech is thus now even more valuable to customers than it was before.

But the freedom to distribute, select, and arrange such speech remains the

same.

We will discuss this in detail below, both as to the First Amendment

generally (Part III) and as to the intersection of First Amendment law and

antitrust law (Part IV). We focus in this submission on Google search re-

sults for which no payment has been made to Google, because they have

been the subject of recent debates; we do not discuss, for instance, the ads

that Google often displays at the top or on the right-hand side of the search

results page.

I. A

CCUSATIONS AND FACTS

The accusations by certain competitors against Google and the facts

bearing on those accusations have been covered in Google’s previous fil-

ings, and will not be repeated here. Briefly, the heart of the accusations is

that Google somehow prioritizes its own thematic search results over results

originating from specialized competitors. 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 en-

886 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

gage in such prioritizing, that prioritizing would constitute the legitimate

exercise of Google’s First Amendment right to decide how to present in-

formation in its speech to its users.

II. T

HE FIRST AMENDMENT FULLY PROTECTS SEARCH ENGINE RESULTS

Two federal court decisions have held that search results, including the

choices of what to include in those results, are fully protected by the First

Amendment. Search King, Inc. v. Google Technology, Inc. concluded that

Google’s rankings of pages were “subjective result[s]” that constituted

“constitutionally protected opinions” “entitled to full constitutional protec-

tion.”

Likewise, Langdon v. Google, Inc., refused to order Google and

Microsoft to prominently list plaintiff’s site in their search results, reason-

ing: “The First Amendment guarantees an individual the right to free

speech, ‘a term necessarily comprising the decision of both what to say and

what not to say.’ . . . [T]he injunctive relief sought by Plaintiff contravenes

Defendants’ First Amendment rights.”

Just as newspapers cannot be

forced to print either editorial content or advertising, the court held, so

search engines cannot be forced to include links that they wish to exclude.

And Supreme Court precedents compel the conclusion reached by

these two courts, for seven related reasons. First, Internet speech is fully

constitutionally protected. Second, choices about how to select and arrange

the material in one’s speech product are likewise fully protected. Third,

this full protection remains when the choices are implemented with the help

of computerized algorithms. Fourth, facts and opinions embodied in search

results are fully protected whether they are on nonpolitical subjects or polit-

ical ones. Fifth, interactive media are fully protected. Sixth, the aggrega-

tion of links to material authored by others is fully protected. Seventh,

none of this constitutional protection is lost on the theory that search engine

output is somehow “functional” and thus not sufficiently expressive. And,

eighth, Google has never waived its rights to choose how to select and ar-

range its material.

No. CIV-02-1457-M, 2003 WL 21464568, at *4 (W.D. Okla. May 27, 2003) (internal citations

and quotation marks omitted).

474 F. Supp. 2d 622, 629–30 (D. Del. 2007) (citing Riley v. National Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 796–97 (1988); Miami Herald Pub’g Co. v. Tornillo, 418 U.S. 241, 256

(1974); and other cases).

Id. at 630.

2012] FIRST AMENDMENT PROTECTION 887

A. The First Amendment Fully Protects Internet Speech

To begin with, the First Amendment protects communications deli-

vered over the Internet as much as it protects traditional print communica-

tions.

The Supreme Court’s First Amendment precedents “provide no ba-

sis for qualifying the level of First Amendment scrutiny that should be ap-

plied to this medium [the Internet].”

B. The First Amendment Fully Protects Editorial Choices About What to

Include or Exclude in One’s Speech Product

Just as the First Amendment fully protects Internet speech, it also fully

protects Internet speakers’ editorial judgments about selection and ar-

rangement of content. As the Supreme Court held in Miami Herald Pub-

lishing Co. v. Tornillo,

the freedom to speak necessarily includes the right

to choose what to include in one’s speech and what to exclude. And the

Court later reinforced that principle: “‘Since all speech inherently involves

choices of what to say and what to leave unsaid,’ one important manifesta-

tion of the principle of free speech is that one who chooses to speak may

also decide ‘what not to say.’”

A speaker is thus entitled to choose to present only the speech that “in

[its] eyes comports with what merits” inclusion.

And this right to choose

what to include and what to exclude logically covers the right of the speak-

er to choose what to include on its front page, or in any particular place on

that page. 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.

And this is true even when the government argues that a speaker’s

choices are unfair to others. “A responsible press is an undoubtedly desira-

ble goal, but press responsibility is not mandated by the Constitution and

like many other virtues it cannot be legislated.”

The “point” of the rule

that speakers may choose what to include and what to exclude “is simply

the point of all speech protection, which is to shield just those choices of

content that in someone’s eyes are misguided, or even hurtful.”

Reno v. ACLU, 521 U.S. 844 (1997).

Id. at 870.

418 U.S. 241, 258 (1974).

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (plural-

ity opinion) (emphasis in original) (quoting Pacific Gas & Electric Co. v. Public Utilities Comm’n of

Cal., 475 U.S. 1, 16 (1986)).

Id. at 574.

Miami Herald, 418 U.S. at 256.

Hurley, 515 U.S. at 574.

888 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

The Court has also made clear that this right to choose what to include

and what to exclude in one’s speech is not “restricted to the press, being

enjoyed by business corporations generally and by ordinary people engaged

in unsophisticated expression as well as by professional publishers.”

“The

concerns that caused [the Court] to invalidate the compelled access rule in

[Miami Herald] apply to appellant [a utility company sending material to its

customers] as well as to the institutional press.”

And this in turn is just a

special case of the broader principle that First Amendment rights extend

equally to the institutional press and to other speakers.

Google, Micro-

soft’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. And in any event, the First Amendment fully pro-

tects speech by all speakers, whether they are media enterprises or not.

C. That Search Engine Results Are Created with the Help of Compute-

rized Algorithms Does Not Rob Them of First Amendment Protection

Search engine selection decisions are indeed the result not just of indi-

vidual editorial choices, but also of the computerized algorithms that search

engine employees have created to implement these choices. That is neces-

sary given the sheer volume of information that search engines must

process, and given the variety of queries that users can input. Such automa-

tion is necessary for users to get free, convenient, quick, and comprehensive

access to speech—both the speech of the search engines expressing their

decisions about how to rank and organize content, and the speech of the

sites referenced by the search engines’ speech.

Such automation does not reduce the First Amendment protection af-

forded to search engine results, for three related reasons. First, the comput-

er algorithms that produce search engine output are written by humans.

Humans are the ones who decide how the algorithm should predict the like-

ly usefulness of a Web page to the user. These human editorial judgments

Hurley, 515 U.S. at 574; id. at 575–76 (applying Miami Herald to protect the rights of a parade

organizer).

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion);

id. at 21–26 (Marshall, J., concurring in the judgment) (not noting any disagreement with the majority

on this matter).

See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (“We have consistently rejected

the proposition that the institutional press has any constitutional privilege beyond that of other speak-

ers.”) (quotation marks and internal citations omitted); First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 782 n.18 (1978) (rejecting the “suggestion that communication by corporate members of the insti-

tutional press is entitled to greater constitutional protection than the same communication by [non-

institutional-press businesses]”); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the

freedom of the press “embraces pamphlets and leaflets” as well as “newspapers and periodicals,” and

indeed “comprehends every sort of publication which affords a vehicle of information and opinion”).

2012] FIRST AMENDMENT PROTECTION 889

are responsible for producing the speech displayed by a search engine. For

instance, Google’s ground-breaking use of the volume of links from other

sites as a criterion for ranking search results was itself the result of Google

engineers’ editorial judgment that inbound links provided a sound and

quantifiable measure of a site’s value. Search engine results are thus the

speech of the corporation, much as the speech created or selected by corpo-

rate newspaper employees is the speech of the newspaper corporation.

Second, the First Amendment value of speech also stems from the val-

ue of the speech to listeners or readers.

As we mentioned, the automation

process only increases the value of the speech to readers beyond what pure-

ly manual decision-making can provide. Finally, the objections to Google’s

placement of its thematic search results arise precisely because Google em-

ployees are said to have made a conscious choice to include those results in

a particular place.

D. The First Amendment Fully Protects Facts and Opinions on Nonpoliti-

cal Subjects

Much of the speech distributed by search engines responds to searches

on political, religious, or scientific topics. And if the government asserts

the power to constrain Google’s ordering of search results, that power

would logically extend to search results for political queries (e.g., “the best

book about Mitt Romney” or “is global warming happening”) as much as

for other queries. The First Amendment clearly forbids such use of gov-

ernment authority.

But even query results that relate to less elevated matters remain fully

constitutionally protected, because the First Amendment protects even

speech that is not closely linked to political or religious debates. As the

Court pointed out just two years ago,

Most of what we say to one another lacks “religious, political, scientific, educational, journa-

listic, historical, or artistic value” (let alone serious value), but it is still sheltered from gov-

ernment regulation. Even “[w]holly neutral futilities . . . come under the protection of free

speech as fully as do Keats’ poems or Donne’s sermons.”

And the First Amendment also protects the collection and communica-

tion of facts as much as it protects opinions, including facts that are not

See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Va. State Bd. of Pharma-

cy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Lamont v. Postmaster General, 381 U.S.

301, 307–08 (1965) (Brennan, J., concurring).

See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (holding that the govern-

ment acting as regulator may not prefer some ideas over others).

United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) (emphasis and ellipsis in original) (quot-

ing Cohen v. California, 403 U.S. 15, 25 (1971) (internal quotation marks omitted)).

890 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

ideologically laden—such as names of crime victims in three-sentence

crime reports, names of accused juvenile offenders, lists of bestselling

books, lists of tenants who had been evicted by local landlords, information

in a mushroom encyclopedia, recipes in a cookbook, and computer program

source code.

As the Supreme Court has held, “information is speech,”

and “[the] general rule, that the speaker has the right to tailor the speech [by

choosing what to say and what to leave unsaid], applies not only to expres-

sions of value, opinion, or endorsement, but equally to statements of fact

the speaker would rather avoid.”

Any theory that search results lack full

First Amendment protection because they are “mere facts” thus lacks sup-

port.

Of course, search engine results are in reality not simply facts: They

are collections of facts that are organized and sorted using the judgment

embodied in the engines’ algorithms, and those judgments and algorithms

represent the search engine companies’ opinions about what should be pre-

sented to users.

But even to the extent that search engine results could be

treated as primarily consisting of facts rather than opinions, they remain

fully constitutionally protected.

E. The First Amendment Fully Protects Interactive Media

Search engine output is in many ways more interactive than traditional

print—users get different results depending on the particular queries they

enter, as well as on the user’s location, the user’s search history, and other

factors. But the First Amendment protects interactive media as well as non-

interactive ones, and new media as well as the centuries-old ones.

Indeed,

the fact that interactive search engine outputs are more personalized than a

See, respectively, Florida Star v. B.J.F., 491 U.S. 524 (1989); Oklahoma Publ’g Co. v. District

Court, 430 U.S. 308 (1977); Blatty v. New York Times Co., 728 P.2d 1177 (Cal. 1986); U.D. Registry,

Inc. v. State, 40 Cal. Rptr. 2d 228, 230 (Ct. App. 1995); Winter v. G.P. Putnam’s Sons, 938 F.2d 1033,

1037 (9th Cir. 1991); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 447 (2d Cir. 2001) (dictum);

Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000).

Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). In Sorrell there was an argument that

the speech was subject to the somewhat lower protection offered commercial advertising, because the

speech itself was used as part of an advertising transaction. This is not so for Google’s speech discussed

here, and it was not so in the other cases mentioned in this paragraph. But Sorrell’s broader point re-

mains applicable: Whether or not speech is commercial advertising, the protection given to factual

speech is the same as that given to ideas.

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).

See, e.g., Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at

*4 (W.D. Okla. May 27, 2003) (concluding that Google’s rankings of pages were “constitutionally

protected opinions”).

See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (holding that even violent

video games are constitutionally protected, despite their interactivity).

2012] FIRST AMENDMENT PROTECTION 891

traditional book or newspaper simply makes them especially valuable to

readers.

F. The First Amendment Fully Protects Aggregation of Materials Au-

thored by Others

Search engines are also fully constitutionally protected in showing

short excerpts from selected other sites, rather than creating content them-

selves. The First Amendment protects the decisions to include or exclude

others’ content, based on the speakers’ exercise of their judgment, as much

as it protects the authoring of the content in the first place. As the Supreme

Court made clear in deciding that a parade organizer is protected by the

First Amendment—even though the parade simply consists of others’

floats—

First Amendment protection [does not] require a speaker to generate, as an original matter,

each item featured in the communication. . . . [T]he presentation of an edited compilation of

speech generated by other persons is a staple of most newspapers’ opinion pages, which, of

course, fall squarely within the core of First Amendment security, Miami Herald Pub. Co. v.

Tornillo, as does even the simple selection of a paid noncommercial advertisement for inclu-

sion in a daily paper, see New York Times v. Sullivan.

And that was so even when the parade was highly unselective, allow-

ing nearly all applicants to march.

Search engines are vastly more selec-

tive, with the first page of the output containing only a tiny fraction—

though, in the search engine companies’ views, the most useful fraction—of

all the potentially relevant Web pages. Search engines’ selectivity is much

more comparable to the selectivity of newspaper op-ed pages, which choose

to feature only a small fraction of potential columns. Thus, even though the

search engine does not generate the content that is linked to by its results,

the judgments and opinions about how to rank and present those results are

fully protected by the First Amendment.

So what is true for parades and newspaper op-ed pages is at least as

true for search engine output. When search engines select and arrange oth-

ers’ materials, and add the all-important ordering that causes some mate-

rials to be displayed first and others last, they are engaging in fully pro-

tected First Amendment expression—“[t]he presentation of an edited com-

pilation of speech generated by other persons.”

Hurley, 515 U.S. at 570.

Id. at 569–70.

Id. at 570.

892 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

G. The Rules Governing Speech That Is Acted on Mechanically Are Inap-

plicable Here

Some contents of a Web page may be acted on mechanically, with no

user judgment, and may therefore be more subjection to regulation in some

circumstances. Thus, for instance, if a Web page contains a virus, courts

and legislatures may be able to impose liability on the producer of the

page.

The same would be true if the page knowingly displays a link that,

when clicked on, triggers such a virus. Analogous examples with paper

publications are rare, but one can imagine some: If some of the chemicals

used in a fashion magazine’s “scratch and sniff” perfume insert prove poi-

sonous to some readers, that might lead to liability.

This conclusion might also support the results in the aeronautical

charts cases, in which people were allowed to recover damages against

manufacturers who provided factually erroneous aeronautical charts.

we noted above, even purely factual information—such as that given in an

Encyclopedia of Mushrooms—is constitutionally protected. But as a feder-

al appellate court explained in distinguishing aeronautical charts from the

mushroom encyclopedia, “[a]eronautical charts are highly technical tools”

akin to compasses, which are “like a physical ‘product’” rather than like

speech.

People use aeronautical charts not by considering whether to follow

the charts’ advice, contemplating using a different chart, or deciding which

of the charts’ many recommendations should be accepted. Chart users just

apply the information given in the charts. Charts are authoritative, especial-

ly in an environment where quick decisions are necessary and lives are at

stake.

But search engines’ speech about goods and services, which people

read and evaluate at leisure and often with skepticism, is not “a physical

‘product’” akin to a compass. Rather, like the mushroom encyclopedia, the

information output by a search engine “is pure . . . expression,”

and re-

strictions on the format and distribution of such information implicate the

First Amendment

We do not say that such liability is currently the law, or that it would be a good legal rule to

have; we only say that such liability likely would not violate the First Amendment.

See, e.g., Brocklesby v. United States, 767 F.2d 1288, 1294–95 (9th Cir. 1985).

Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1036 (9th Cir. 1991).

Id.

Id. at 1037.

2012] FIRST AMENDMENT PROTECTION 893

H. Google Has Never Surrendered the Right—Which All Speakers Pos-

sess—To Choose What Information It Presents and How It Presents It

Finally, some of Google’s critics assert that any speech by Google that

prefers Google’s thematic search results is misleading. Customers, the ar-

gument goes, have allegedly come to expect that Google will choose search

results based solely on supposedly “neutral” computer algorithms, with no

preference for Google’s thematic search results. But the critics cannot point

to any such guarantees to customers, because Google makes no such guar-

antees. Google has never given up its right as a speaker to select what in-

formation it presents and how it presents it.

And the First Amendment does not let the government hold a speaker

liable on the theory that the speaker’s alleged biases deny readers the ba-

lanced presentation that they supposedly expect. That the New York Times

has spoken of publishing “all the news that’s fit to print” cannot justify

holding the newspaper liable for slighting some stories that the government

or a third party may feel are even more important than what the Times

chose to print.

The precedents bear this out. That the Times bestseller list is said to be

“based on computer-processed sales figures from about 2,000 bookstores in

every region of the United States” cannot justify a lawsuit objecting to the

Times’ supposedly misleading exclusion of one book, on the theory that the

Times represented the list as an “objective, unbiased and accurate compila-

tion of actual sales.”

And an information technology advisor’s describing

its “analysis [as] being ‘fact-based and knowledge-centric,’ ‘built

on objectivity,’ and founded on a methodology it says ensures the ‘ultimate

objectivity’” cannot justify a lawsuit objecting to a particular ranking as

being supposedly contrary to the publisher’s assurance of objectivity and

therefore misleading.

Even such express assertions of an objective foun-

dation, the ZL Technologies court held, “are insufficient to transform the

tenor of the rankings . . . from opinion to fact,”

and thus to diminish the

speaker’s right to exercise its judgment in crafting such rankings. This is so

even when the rankings are allegedly biased by the speaker’s economic

incentives.

It is clearer still that the government may not demand that a search en-

gine live up to some hypothetical and undefined expectations of abstract

objectivity. Reasonable users understand that determining which of the

billions of Internet pages are the most useful responses to any particular

query necessarily involves a great deal of subjective judgment, and that

Blatty v. New York Times Co., 42 Cal. 3d 1033, 1046 n.2 (1986).

ZL Techs., Inc. v. Gartner, Inc., 709 F. Supp. 2d 789, 797–98 (N.D. Cal. 2010).

Id. at 798.

Id. at 801 n.4.

894 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

search engine companies might well conclude that material produced by

themselves will be especially useful and thus merits being prominently dis-

played. And reasonable users would not expect that Google would lock

itself into a set of ranking and display criteria used at any particular time—

indeed, given the rapid innovation that has characterized the Internet gener-

ally and search engines specifically, change in algorithm design should and

would be expected.

If users do find Google’s results to be unreliably skewed, Google will

be punished by the marketplace, as frustrated users shift to other easily

available search engines.

Users’ appreciation of the usefulness of

Google’s search results is what brought so many users to Google in the first

place. If users start doubting the usefulness of Google’s results, the users

will switch to another search engine. But the First Amendment denies gov-

ernment the power to police the “fairness” of search engine speech, just like

the First Amendment denies government the power to police the fairness of

newspaper speech.

Google’s rivals are naturally promoting what they say is the superior quality of their search

technology, both as to its selection decisions and as to the arrangement of results on the page—that is to

say, their own supposedly superior editorial judgment—in order to persuade users to switch. See, e.g.,

Tim Addington, Bing Will Take Market Share from Google, B & T (Australia), Nov. 15, 2011,

http://www.bandt.com.au/news/latest-news/bing-will-take-market-share-from-google- (quoting “Stefan

Weiz, senior director of Bing search,” as saying, “I think we are going to take share away in certain

areas because we are going to have a better experience and they are going to maintain share in certain

areas because they have a good experience”); Dr. Jan Pedersen, Chief Scientist for Core Search at Bing,

Bing Search Quality Insights: Whole Page Relevance, Mar. 5, 2012,

http://www.bing.com/community/site_blogs/b/search/archive/2012/03/05/bing-search-quality-insights-

whole-page-relevance.aspx (promoting the result selection and arrangement technology of Microsoft’s

Bing as supposedly being better for users); UKTeam, Bing Announces Significant Improvements to

Instant Answer and News Searches, Apr. 26, 2011,

http://www.bing.com/community/site_blogs/b/uk/archive/2011/04/26/bing-announces-significant-

improvements-to-instant-answer-and-news-searches.aspx (discussing changes in Microsoft’s Bing

search, and closing with “[t]he search improvements are a result of customer feedback and research, and

closely follow news that Bing has gained a greater market share in the UK. With more and more room

to grow we look forward to further developments in the future and will continue to keep you all updated.

We hope you enjoy the new features!”); Dave Copeland, Is Microsoft Driving at Google with Bing

Maps Improvements & Patent?, Jan. 5, 2012, R

EADWRITEWEB,

http://www.readwriteweb.com/archives/is_microsoft_driving_at_google_with_bing_maps_impr.php

(“Microsoft announced enhancements to its Bing Maps, including a change to the algorithm that allows

the service to process directions requests twice as fast and help drivers avoid traffic. Those changes,

along with a newly-awarded patent for a feature that allows Bing Maps to route pedestrians away from

unsafe neighborhoods, suggest Microsoft is driving to surpass Google Maps, which has dominated the

space since surpassing MapQuest in site traffic and queries in 2008.”).

For a particularly effective—and amusing—illustration of the analogy between calls for regulat-

ing search and what would be clearly unconstitutional calls for regulating news, see Danny Sullivan,

The New York Times Algorithm & Why It Needs Government Regulation, S

EARCH ENGINE LAND (July

15, 2010, 2:07AM), http://searchengineland.com/regulating-the-new-york-times-46521.

2012] FIRST AMENDMENT PROTECTION 895

III. THE FIRST AMENDMENT PROTECTS SEARCH ENGINE RESULTS

AGAINST ANTITRUST LAW

Businesses that engage in speech, like other businesses, are covered by

antitrust law when it comes to restrictions on their non-speech business

practices, such as the licensing of content.

But antitrust law itself, like

other laws, is limited by the First Amendment, and may not be used to con-

trol what speakers say or how they say it.

A clear example of this comes in the Noerr/Pennington line of cases.

Antitrust law generally prohibits organizations from unreasonably restrain-

ing competition. But when organizations try to restrain trade by speaking

to legislators and to the public, and urging the listeners to enact anticompe-

titive regulations, such speech is immunized from liability. A contrary con-

clusion, the Court has held, would “invade” the protection offered by the

First Amendment.

Indeed, the Supreme Court took the view that it should

interpret the antitrust laws to avoid any interpretation that would even

“raise important constitutional questions.”

Likewise, antitrust law cannot be used to require a speaker to include

certain material in its speech product. Associated Press v. United States,

the 1945 Supreme Court case that held that the press may generally be cov-

ered by antitrust law, stressed that the lower court’s decree “does not com-

pel AP or its members to permit publication of anything which their ‘rea-

son’ tells them should not be published.”

And the Court has since made

clear, in Miami Herald Publishing Co. v. Tornillo,

that the First Amend-

ment bars orders that a newspaper “print that which it would not otherwise

print,” even when those orders apply antitrust law:

[B]eginning with Associated Press, supra, the Court has expressed sensitivity as to whether a

restriction or requirement constituted the compulsion exerted by government on a newspaper

to print that which it would not otherwise print. The clear implication has been that any such

a compulsion to publish that which “‘reason’ tells them should not be published” is unconsti-

tutional.

To be sure, it is constitutionally permissible to stop a newspaper from

“forcing advertisers to boycott a competing” media outlet, when the news-

paper refuses advertisements from advertisers who deal with the competi-

Associated Press v. United States, 326 U.S. 1 (1945).

E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); see also

United Mine Workers v. Pennington, 381 U.S. 657 (1965).

Noerr, 365 U.S. at 138; see also FTC v. Super. Ct. Trial Lawyers Ass’n, 493 U.S. 411, 424

(1990) (describing the Noerr Court’s interpretation of the Sherman Act “in the light of the First

Amendment[]”).

326 U.S. at 20 n.18.

418 U.S. 241, 256 (1974).

896 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

tor.

But the newspaper in Lorain Journal Co. was not excluding adver-

tisements because of their content, in the exercise of some editorial judg-

ment that its own editorial content was better than the proposed advertise-

ments. Rather, it was excluding advertisements solely because the advertis-

ers—whatever the content of their ads—were also advertising on a compet-

ing radio station. The Lorain Journal Co. rule thus does not authorize re-

strictions on a speaker’s editorial judgment about what content is more val-

uable to its readers.

Search engines’ decisions about where to display certain search results

do not involve any such illegal agreements, or attempts to force advertisers

to boycott the search engines’ competitors. Instead, search engines’ selec-

tion and arrangement decisions reflect editorial judgments about what to

say and how to say it, which are protected by the First Amendment. As the

Tenth Circuit made clear in Jefferson County Sch. Dist. No. R-1 v. Moody’s

Investor Servs., cases such as Lorain Journal, Superior Court Trial Law-

yers Ass’n, and National Society of Professional Engineers “do not suggest

that merely engaging in protected speech may constitute an antitrust viola-

tion.”

“[T]he First Amendment does not allow antitrust claims to be pre-

dicated solely on protected speech.”

Likewise, the Ninth Circuit has con-

cluded that even a newspaper that was plausibly alleged to have a “substan-

tial monopoly” could not be ordered to run a movie advertisement that it

wanted to exclude, because “[a]ppellant has not convinced us that the courts

or any other governmental agency should dictate the contents of a newspa-

per.”

And the Tennessee Supreme Court similarly stated that,

“[n]ewspaper publishers may refuse to publish whatever advertisements

they do not desire to publish and this is true even though the newspaper in

question may enjoy a virtual monopoly in the area of its publication.”

This principle that even generally applicable economic regulations

may not be used to require a speaker to include certain material in its

speech product is not confined to antitrust law; it is equally visible, for ex-

ample, in the labor law cases. Labor law, like antitrust law, is aimed at

Lorain Journal Co. v. United States, 342 U.S. 143, 152, 155 (1951).

See FTC v. Super. Ct. Trial Lawyers Ass’n, 493 U.S. 411, 426 (1990) (stressing that a boycott

violated antitrust law not because of the defendants’ speech or lobbying, but because of the “concerted

refusal” to engage in commercial transactions); National Society of Professional Engineers v. United

States, 435 U.S. 679, 692, 697 (1978) (stressing that an injunction against a professional association’s

adoption of a ban on competitive bidding was constitutional because the ban was implemented in reac-

tion to a Sherman Act violation that consisted of an “agreement among competitors to refuse to discuss

prices with potential customers until after negotiations have resulted in the initial selection of an engi-

neer”).

Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor Servs., 175 F.3d 848, 860 (10th Cir.

1999).

Id.

Assocs. & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 135 (9th Cir. 1971).

Newspaper Printing Corp. v. Galbreath, 580 S.W.2d 777, 779 (Tenn. 1979).

2012] FIRST AMENDMENT PROTECTION 897

protecting against misuse of economic power. And labor law, like antitrust

law, may usually be lawfully applied to most business decisions by news-

papers and other speakers. Yet the Court has stressed “the full freedom and

liberty of” a speaker “to publish the news as it desires it published or en-

force policies of its own choosing with respect to the editing and rewriting

of news for publication.”

Likewise, federal appellate courts have reaffirmed that “the First

Amendment erects a barrier against government interference with a news-

paper’s exercise of editorial control over its content.”

The NLRB, for

instance, is not allowed to force newspapers to yield editorial control to

union members,

keep publishing an employee’s column,

or keep an em-

ployee as part of the publisher’s editorial writing staff.

“The Supreme

Court has implied consistently that newspapers have absolute discretion to

determine the contents of their newspapers.”

“Implementation of a reme-

dy that requires governmental coercion gives rise to a confrontation with

the First Amendment.”

The First Amendment bars the government from

controlling what speakers say and how they say it, even when the govern-

ment’s motivation is to correct a perceived unfair use of economic power.

And, as discussed above, these principles apply equally to all speakers,

whether they create newspapers or other speech. Indeed, the Miami Herald

v. Tornillo principle has been applied even to parades, including ones that

have far more viewers than other parades are likely to have. Even when

“the size and success of [a] parade makes it an enviable vehicle for the dis-

semination of [a speaker’s] views,” that sort of influence on the parade’s

part cannot justify ordering the parade to include floats that the organizers

want to exclude.

Moreover, the one case in which the Court did uphold a law that re-

quired speakers to include certain kinds of speech, Turner Broadcasting

System, Inc. v. FCC,

relied on the fact that the speakers in that case—who

were cable system operators—were physically able to “pre-

vent . . . subscribers from obtaining access to programming [the operator]

chooses to exclude.”

The Court stressed that its decision to uphold the

Associated Press v. NLRB, 301 U.S. 103, 133 (1937).

McDermott v. Ampersand Pub., LLC, 593 F.3d 950, 959 (9th Cir. 2010).

Id.

Passaic Daily News v. NLRB, 736 F.2d 1543, 1558 (D.C. Cir. 1984).

Wichita Eagle & Beacon Pub. Co., Inc. v. NLRB, 480 F.2d 52, 56 (10th Cir. 1973) (holding

that the NLRB’s ruling blocking the transfer of an employee from the editorial writing department

“infringe[s] upon the newspaper’s freedom to determine the content of its editorial voice in an atmos-

phere of free discussion and exchange of ideas”).

Passaic Daily News, 736 F.2d at 1557.

Id. at 1558.

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 577–78 (1995).

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).

Id. at 656.

898 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 8:4

must-carry law did not stem simply from a judgment that a cable company

had market power. The Court made clear that its analysis would not apply

to newspapers, “no matter how secure [their] local monopoly,” because

such a newspaper “does not possess the power to obstruct readers’ access to

other competing publications.”

Instead of focusing on market share, the

Court focused on the physical power of the cable operator to block speak-

ers: “A cable operator, unlike speakers in other media, can . . . silence the

voice of competing speakers with a mere flick of the switch.”

Search engine operators, no matter what their alleged market shares

may be, lack any such physical power because of how the Internet works.

In 1994, each home usually had access only to one cable provider. But

each home has access, with just a click of the mouse, to Google, Micro-

soft’s Bing, Yahoo! Search, and other general-purpose search engines, as

well as to almost limitless other means of finding content on the Internet,

including specialized search engines, social networks, and mobile apps.

As the later Hurley case explained, Turner also rests on the fact that

cable system operators were seen at the time as merely “a conduit” for oth-

ers’ speech that viewers did not perceive as edited or compiled into a cohe-

rent item by the cable operator.

But the Turner approach does not apply

where the speaker is compiling and editing a speech product of its own—

such as a single page that contains text selected and presented in a way that

“in the [speaker’s] eyes comports with what merits” inclusion.

As Hurley held, the Turner “conduit” metaphor is “not apt” where the

inclusion of some item of speech “would likely be perceived as having re-

sulted from the [speaker’s] customary determination . . . that [the] message

[of any component of the speech] was worthy of presentation.”

That is

precisely the perception that users are likely to have when viewing search

engine results: Users assume that each link was judged by the search engine

as “worthy of presentation,” because the very point of using a search engine

is to narrow down the billions of Web pages into those that the engine

views as worth presenting.

In such a situation, whether it involves a parade, a newspaper, or a

page of results displayed by a search engine, the First Amendment fully

protects the speaker’s “autonomy to control [its] own speech.”

For search

engine output, as for the contents of a parade or of a newspaper, “‘[t]he

choice of material . . . and the decisions made as to limitations on the size

Id.

Hurley, 515 U.S. at 575; Turner, 512 U.S. at 629 (“[T]he cable system functions, in essence, as

a conduit for the speech of others, transmitting it on a continuous and unedited basis to subscribers.”).

Hurley, 515 U.S. at 574.

Id. at 575.

Id.

2012] FIRST AMENDMENT PROTECTION 899

and content . . . —whether fair or unfair—constitute the exercise of editori-

al control and judgment’” upon which the State can not intrude.

ONCLUSION

Google, Microsoft’s Bing, and Yahoo! Search exercise editorial judg-

ment about what constitutes useful information and convey that informa-

tion—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. 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.

Id. (quoting Tornillo, and explaining why Turner is inapplicable).