First Amendment Protection for Search Engine Search Results
| Publication year | 2014 |
| Author | By Eugene Volokh and Donald M. Falk |
By Eugene Volokh2 and Donald M. Falk3
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 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 engine 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 excerpts from each page. Such reporting about others' speech is itself constitutionally 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 competitors.) This selection and sorting is a mix of science and art: It uses sophisticated 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 columnists 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 stories to link to, and in what order to list them.
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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 example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of Drudge Report.com or a search engine consists almost entirely of the selected and arranged links to others' material. 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 published 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 Google, 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 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 results 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.
The accusations by certain competitors against Google and the facts bearing on those accusations have been covered in Google's previous filings, 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 engage in such prioritizing, that prioritizing would constitute the legitimate exercise of Google's First Amendment right to decide how to present information in its speech to its users.
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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 protection." No. 02-1457, 2003 U.S. Dist. LEXIS 27193, at *12, 2003 WL 21464568, at *4 (W.D. Okla. May 27, 2003) (internal citations and quotation marks omitted). Likewise, Langdon v. Google, Inc., refused to order Google and Microsoft to prominently list plaintiff's site in their search results, reasoning: "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." 474 F. Supp. 2d 622, 629-30 (D. Del. 2007) (citing Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988), Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256 (1974), and other cases). 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. Id. at 630.
And Supreme Court precedents compel the conclusion reached by these two courts, for eight 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 political ones. Fifth, interactive media are fully protected. Sixth, the aggregation 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 arrange its material.
A. The First Amendment Fully Protects Internet SpeechTo begin with, the First Amendment protects communications delivered over the Internet as much as it protects traditional print communications. Reno v. ACLU, 521 U.S. 844 (1997). The Supreme Court's First Amendment precedents "provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium [the Internet]." Id. at 870.
B. The First Amendment Fully Protects Editorial Choices About What to Include or Exclude in One's Speech ProductJust as the First Amendment fully protects Internet speech, it also fully protects Internet speakers' editorial judgments about selection and arrangement of content. As the Supreme Court held in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974), 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,' Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say,' id. at 16." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).
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A speaker is thus entitled to choose to present only the speech that "in [its] eyes comports with what merits" inclusion. Id. at 574. And this right to choose what to include and what to exclude logically covers the right of the speaker 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...
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