The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump Tweeted this morning:
Google search results for "Trump News" shows only the viewing/reporting of Fake News Media. In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD. Fake CNN is prominent. Republican/Conservative & Fair Media is shut out. Illegal? 96% of….
….results on "Trump News" are from National Left-Wing Media, very dangerous. Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!
Rebecca Morin (Politico) adds:
[White House economic adviser Larry Kudlow] was asked Tuesday during a brief exchange with reporters whether the Trump administration feels that "there needs to be some form of regulation for Google."
"We'll let you know. We're taking a look at it," Kudlow replied as he walked back into the White House after a TV interview with Fox News.
In 2012, Google commissioned me to co-write a White Paper arguing for First Amendment protection for search engine results; naturally, I spoke there as a lawyer for Google and not as an impartial academic, but I hope our readers would find its arguments interesting in any event. Here is the Introduction, though of course it isn't intended to be persuasive on its own — the supporting arguments are in the rest of the paper:
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.
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 DrudgeReport.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.
You can also have a look at Zhang v. Baudi.com, a 2014 federal district court case that offers a similar analysis, and that, I'm pleased to say, cites our paper.