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Tuesday, May 22, 2012

Is search protected by the first amendment? Comments by Eugene Volokh

Posted by Eugene Volokh

The argument in the First Amendment Protection for Search Engine Search Results white paper (which was written by me but commissioned by Google) is simple: Once, the leading sources to which people turned for useful information 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 more. 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.

Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled. Second, they direct users to material created by others (and such references are themselves constitutionally protected speech).

Third, and most valuably, search engines select and sort the results, aiming to give users what the search engine companies see as the most helpful and useful information. (That’s how each search engine company tries to keep users coming back to it rather than to its competitors.) This selection and sorting is a mix of science and art: It uses 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’ judgments about which topics to cover, which wire service stories to run (and where), and which columnists to include; guidebooks’ judgments about which local attractions to mention; the judgment of sites such as DrudgeReport.com about what sites to link to; and more.

Thus, for instance, when many newspapers chose to publish 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 protection is even more clearly present when a speaker, such as a search engine, makes not just the one include-or-not editorial judgment, but rather many judgments about how to design the algorithms that produce and rank search results that -- in the search engine engineers’ opinion -- are likely to be most useful to users.

Indeed, two federal court decisions (Search King, Inc. v. Google Technology, Inc. and Langdon v. Google, Inc.) have already held that search results, including the choices of what to include in those results, are “entitled to full constitutional protection.” And this conclusion is compelled by Supreme Court precedents. Internet speech, and interactive speech, is fully constitutionally protected. Facts and opinions on nonpolitical questions are likewise fully protected, as are choices about how to select and arrange the material in one’s speech product.

This full protection remains when the choices are implemented with the help of computerized algorithms. Those algorithms represent the choices of their human authors. The algorithms produce results that are read by human readers; the First Amendment value of speech stems from the value of the speech to listeners or readers as well as from the value of the speech to speakers. And the objections to Google’s placement of its thematic search results arise precisely because Google employees are said to have made a con­scious choice to include those results in a particular place.

Moreover, antitrust law can no more trump this constitutional protection than can other laws that are aimed at protecting the supposed “fairness” or “neutrality” of speech. In the era before the Internet, many towns had only one newspaper that had a practical monopoly on text news coverage. But even then the Court stressed that the government may not “comp[ell] . . . a newspaper to print that which it would not otherwise print” and that the newspaper maintained its rights to select what to include and what to exclude “no matter how secure [its] local monopoly.”

The same logic applies to search engines -- but more so. There are no “one-search-engine towns”: All Internet users can quickly switch search engines if they find that their current search engine provides coverage that they sees as unfair or incomplete.

Most of us started out by using search engines other than Google; we switched to Google because we had heard that it provided superior results. We can easily switch away if we conclude the results are no longer satisfactory. This user power -- and not governmental coercion -- is the proper remedy for any perceived unfair selection by search engines, and the proper deterrent to such supposed unfairness. (For more on this, and on the other points I mention, see the white paper itself, which has more detailed arguments, citations, and in particular a discussion of Lorain Journal Co. v. United States and other First Amendment and antitrust cases in Part IV.)

This conclusion is consistent with 47 U.S.C. § 230’s protection of search engines (among others) from civil liability. The premise of § 230 is that online content providers are entitled both to immunity from liability for other people’s speech (§ 230(c)(1)) and to the right to select what speech to include (§ 230(c)(2)).

Indeed, § 230 was enacted in response to a court decision (Stratton Oakmont v. Prodigy) that concluded that online organizations had to choose whether to be (1) common carriers, immune from liability but barred from making editorial judgments, or (2) publishers, entitled to make editorial judgment but subject to liability for others’ speech. Congress specifically intended to overrule that decision, and to make it easier for content providers -- such as search engines -- to both make editing judgments of their own, and avoid civil liability for the speech of others.

http://lawprofessors.typepad.com/antitrustprof_blog/2012/05/is-search-protected-by-the-first-amendment-comments-by-eugene-volokh.html

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