Volokh’s First Amendment Analysis re Google Search: Dissenting in part, Concurring in Part

Next Wednesday, May 16, George Mason University is hosting an academic conference on competition, search, and social media. Most academic conferences are not newsworthy. (They’re often boring.) But the Wall Street Journal has already written about two papers sponsored by Google, one of which will be presented at this conference. The Journal describes the two papers as evidence that one of the world’s largest companies (Google) is “returning fire” against a federal agency (the Federal Trade Commission).

This is already the most exciting academic conference ever.

As someone who’ll be speaking at the conference, I’d hate to burst the bubble… but there have been dozens of geeky conferences and panels by academic institutions and think tanks about the question of antitrust and Google. The conferences are trying to shed light on some hard and interesting questions ranging from the role of antitrust in dynamic industries to appropriate remedies to search results and free speech. (And if you’re going to have a conference, why discuss antitrust in corrugated steel or cardboard box inputs?)

Some of the papers presented at these conferences are funded by Google, some by its competitors, and some are written by academics funded by neither. Authors include economists, law professors, technologists, and lawyers.

I am speaking on the last panel, about remedies. My own paper for the conference will be published in the Journal of Internet Law on Monday. My paper focuses on the remedies proposed by Google’s competitors in the antitrust inquiry. It provides a detailed legal analysis of the dozen or so proposed remedies, which range from the “completely ridiculous” to the “apparently plausible but do not hold up under close scrutiny.” My paper, like Volokh’s, was supported by Google, which is a client of my law firm. (And to clarify–I don’t speak for Google, but I do hope that some of their lawyers read my paper, learn something from it, and perhaps even adopt the arguments presented in the paper ….)

UCLA law professor Eugene Volokh will be on the remedies panel as well. Volokh is a famous First Amendment scholar (though he has made contributions in other fields) and he runs a popular legal blog called the Volokh Conspiracy. He has a libertarian bent. If he ended up on the Supreme Court, a Republican president would have appointed him (the same would not be said of me).

Professor Volokh’s paper argues that Google search results are protected under the First Amendment as “opinions” no less than New York Times editorials. His paper has received some attention in a variety of outlets, including Wired and the Hill.

I’m also (and primarily) a First Amendment expert–I taught and have published on the subject for years. I have very strong views about the First Amendment.

So I’m going to disagree with Eugene Volokh on a few points.

I don’t like the argument that search results are protected opinions and that Google’s speech rights matter much. I know that two district courts have in fact held that search results are opinions. More importantly, I know that five of the Supreme Court Justices think very highly of corporate speech rights, as evidenced by commercial speech cases and by the Citizens United case that overruled two recent precedents and decades of law just to ensure corporations can spend unlimited sums buying elections. So Volokh’s analysis probably reflects what courts would in fact do–and I rely on the courts’ analysis in my paper regarding the law.

But I have to do what law professors (and former law professors like me) do so often–agree with the result but disagree with the reasoning, while taking shots at the five conservative Justices on the Supreme Court.

I’d argue that, whether search results are opinions or not, government should not have discretion in deciding search results. We’d simply invite too much danger and set a bad example for the rest of the world. Regulating search engines is something the Chinese government has pioneered and perfected. I understand that the regulation of search results here is designed to ensure “neutrality” for competitors, but neutrality is a confused, discretionary, incoherent concept, inviting gaming and political manipulations.

Do a Google search for Santorum. Or Miserable Failure. Or Romney. (Then Santorum again…) I am not sure we need to say that those search results are Google’s opinions in order to make the case that, under the First Amendment, we don’t want politicians mucking around with search results. I don’t think we need to argue that Google, as a corporation, deserves considerable corporate speech protection for these opinions to conclude that we Internet users, who rely so heavily on search to navigate the web for speech purposes, deserve protection from government agencies manipulating search results.

In a lot of my writings, I have tried to draw distinctions between structural regulation and content regulation. (I wasn’t the first–see Ed Baker, Yochai Benkler, Mike Burstein, Jack Balkin, etc.) Structural regulation–setting up the economic rules of the media and communications environment–is less problematic and makes up the bulk of the Communications Act, which is directed to phone lines, cable lines, and wireless licenses. Content-directed regulation is far more troublesome.

This looks like regulation of content, whether or not the Google corporate speaker has important opinions. Let’s try a fanciful example. What if Google offered a yellow phone book. In Google’s “opinion,” Google decides to list everyone in alphabetical order. This is hardly an opinion–how else would you organize a phone book? But let’s say the Obama administration issues an order: “We want you to list all Obama campaign donors on the front pages of the phone book, not in alphabetical order, and draw happy faces next to their names. Sprinkle the names of Romney donors at random throughout the book so people will have trouble finding their numbers…” Clearly that would be unconstitutional–even though it’s hard to think of alphabetical arrangement as an “opinion.”

To try another fanciful example, let’s say Google places one result at random at the top of every search result. We’ll say it’s part of a plan to counteract the supposed “Filter Bubble” and get us to see sites we’d never think to search for. Google is not stating much of an opinion here in displaying one site over another–we are stipulating they are all placed at random. Even with these random, non-opinion displays, if the government started getting involved in what could be displayed, we would still be concerned.

The second half of Volokh’s paper makes this point and cites the exact case I would have cited (the 1945 Associated Press case), where newspapers were subject to antitrust law but partly because the remedy chosen did not interfere with content. Interfering with content for search results strikes me as problematic because of the impact on users, not the impact on Google’s corporate speech rights.

Point is: Volokh might be right; five Supreme Court justices are more likely to agree with him regarding the importance of Google’s corporate speech rights than to agree with me, as I often read Supreme Court dissents on corporate speech rights wishing they were majority opinions. But I do think that the remedy proposed to regulate search results would be constitutionally problematic content-regulation–with the same standard-less-discretion that the liberal Justices most condemn.

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