Does the First Amendment Immunize Google's Search Engine Search Results from Government Antitrust Scrutiny?

• Publication year: 2014
• Author: Paula Lauren Gibson

DOES THE FIRST AMENDMENT IMMUNIZE GOOGLE'S SEARCH ENGINE SEARCH RESULTS FROM GOVERNMENT ANTITRUST SCRUTINY?

Paula Lauren Gibson¹

I. INTRODUCTION

For several years now, Google has faced allegations from various fronts of purported violations of the antitrust laws in regards to its manipulation of its vertical shopping search engine results.² Vertical shopping competitors³ have filed complaints with the FTC and the State Attorneys General.⁴ Those complaints alleged, among other things, that Google violated the antitrust laws⁵ by giving itself preferential treatment in the search results of its own properties through the manual manipulation of its search engine algorithm in order to demote the offerings of rivals, notwithstanding in some cases the alleged superior content of the rival pages.⁶

This article will address only one issue: Whether Google vertical shopping search engine results are "opinions" and, as such, would be protected by the First Amendment of the U.S. Constitution⁷ and/or its state counterparts⁸ from any regulation based on alleged violations of the antitrust laws?⁹

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To do so, this article will first examine whether computerized search engine results are the equivalent of speech and whether such speech amounts to being an opinion. Next, this article will examine whether, if such speech amounts to being an opinion, whether is it entitled to First Amendment protection from government action, in particular, enforcement of the antitrust laws. Through its examination of various cases, including two in which Google asserted a First Amendment defense against private parties, this article will explore the applicable factors and applicable level of constitutional scrutiny assuming that some level of First Amendment protection applies. Ultimately, this article will conclude that a First Amendment defense is likely not available to Google should a government enforcer bring an action on the ground that Google's search engine's mode of operation violates the antitrust laws.

II. SEARCH ENGINE RESULTS DERIVED FROM COMPUTER CODE ARE SPEECH

Search engine results are formulated through the use of algorithms. An algorithm is a computer code that provides a step-by-step procedure for calculation or data processing.¹⁰ It is as much a language as English with a structure and a vocabulary that can be used to carry out complex functions or express complex thoughts. Even though algorithms use the language of computer code, and ultimately carry out their functions on a computer via the use of binary code with ones and zeros, such code may still be regarded as "speech" for constitutional purposes.¹¹ In Universal City Studios Inc. v. Corley ("Corley"), the United States Court of Appeals for the Second Circuit drew an analogy between computer code and musical compositions or mathematical equations, indicating that the obscurity or difficulty of understanding what is written does not make "computer code . . . distinguishable from conventional speech for First Amendment purposes."¹² In that case, the court found that computer code, which instructed the computer to perform certain functions which were "capable of being understood and assessed by human beings," qualified as speech for First Amendment purposes.¹³

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In turn, Corley was one of several federal decisions¹⁴ relied upon by the California Supreme Court in DVD Copy Control Association, Inc. v. Bunner¹⁵ to determine that computer code qualified as speech protected by the First Amendment. In Bunner, Andrew Bunner was accused of misappropriation of trade secrets under California's Uniform Trade Secrets Act. Bunner posted on his website the hacked code for DVD CCA's "content scramble system" also known as "CSS." Once Bunner was enjoined from further distribution of the broken code, he appealed, claiming the injunction violated his First Amendment free speech rights. Ultimately, though the California Supreme Court found that the dissemination of computer code was speech, it also found that the First Amendment does not prohibit courts from enjoining speech to protect a legitimate property right, in this case, DVD CCA's encryption code, which was a trade secret. Therefore, the First Amendment did not stand in the way of enjoining Bunner from distribution of the computer code.¹⁶

III. SINCE SEARCH ENGINE RESULTS ARE SPEECH, ARE THEY ALSO OPINIONS?

Based on these cases, this article views computer code as being equivalent to speech for First Amendment purposes. That being said, being "speech" does not automatically qualify such code for First Amendment protection. For instance, it is understood that falsely yelling "fire" in a crowded theatre might be speech, but not protected speech.¹⁷ Therefore, the next question for consideration is what type of speech would be a vertical shopping search engine result: Is a vertical shopping search engine result an opinion or something else? In an April 2012 paper commissioned by Google, with the caveat that "the views within it should not necessarily be ascribed to Google," UCLA Professor Eugene Volokh made the case for Google's search engine's results being treated as a judgment or opinion for First Amendment purposes. He stated:

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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.¹⁸

The "opinion" is thus, according to Professor Volokh, Google's decision as where to place results and how to rank those results.¹⁹ Therefore, it is argued that an antitrust action directed at decision-making conduct involving such "opinions" would be barred by the First Amendment.

Google rivals, on the other hand, make three primary contentions as to why that argument is not so: First, Google's decisions or manipulations are intended to foreclose competition as to vertical shopping results; second, manual manipulation of the algorithmic results places Google's own results ahead of the placement of rivals' results that Google's own algorithm otherwise determined to be superior, thus giving Google a competitive advantage; and third, Google just simply intends to destroy vertical shopping competitors who seek to tap into Google's approximate "235 million active users across . . . Google properties"²⁰ as potential customers of Google's competition.

The difference between Google's and its competitors' viewpoints as to the operation of Google's search engine is whether the algorithm's determination is just an ad hoc editorial judgment based upon objective criteria or instead consists of manipulated results that are falsely represented to be objective and are used in an anticompetitive manner. In other words, are these vertical shopping search engine results opinions or factual commercial statements (that are, in fact, false or manipulated according to Google's competitors)?

A. The Search Engine Process for Formulating "Opinions"

To answer this question, it is necessary to discuss the search engine process. Google contends that its "search technologies sort through an ever-growing amount of information to deliver relevant and useful search results in response to user queries."²¹ Put another way, search engines provide "answers" by crawling and indexing websites, calculating relevancy and serving the results to user queries. To do this, an Internet web page crawling device, also known as a "bot," seeks out words on web pages from which an index is created. The Internet user uses keywords to search the index for directions to the relevant websites.

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In Google's own words, its engineers "write programs and formulas"—an algorithm—which is "designed to deliver the best results possible"²² in response to user queries. The algorithm is a constantly evolving document. Google claims its "algorithms rely on more than 200 unique signals or 'clues' that make it possible for Google to guess what any user might really be looking for. These signals include things like the terms on websites, the freshness of content, your region, and PageRank."²³ To keep results "relevant," Google fights spam²⁴ "24/7 mainly through an automatic process but sometimes by manual manipulation."²⁵ Google has long maintained that any changes it makes by manipulation of the original algorithm search results are intended to give the consumer a better experience, not to preserve its own market share.²⁶ So does this process amount to an opinion or to commercial statements of fact or simply to statements of fact? The answer can make a critical difference as to the degree of First Amendment protection.

1. Opinion or Statements of Fact

The meaning of "opinion" has continuously evolved since its common law definition. Speech that appears to convey a fact, I think the sky is grey, is treated as conveying an opinion.²⁷ Justice Powell's opinion for the Court in Gertz v. Robert Welch, Inc.²⁸ ("Gertz") is, in turn, the lead case for the proposition that statements appearing to be false are still protected under the First Amendment if they qualify as an opinion.²⁹ In that case, the plaintiff, Gertz, was a lawyer who filed a defamation suit against the John Birch Society, which was legally known as Robert Welch, Inc., claiming defamation based upon a society publication which contained many "serious inaccuracies" about him. Accepting that the statements were false but qualified as the opinion of the John Birch Society, Justice Powell's consideration of the case started with what he called "common ground," that is:

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Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value

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