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Google's Antitrust Wrist Slap Is Right Result for Wrong Reason -- Right Reason: Google Search Results Are Free Speech

First Amendment considerations should have stopped the FTC's investigation at the outset. That freedom-of-speech is never mentioned in the agency's statement is, well, bizarre.
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Christmas 2013 came early for Google as the Federal Trade Commission, following a two-year investigation into allegations of anticompetitive practices, announced a settlement that spares Google a battle royale with the government over its core business: the selection and presentation of search results.

Although the FTC extracted concessions from Google in other areas, the agency rejected the central charge -- lodged by Google competitors who were unnamed but presumably include Microsoft -- that the company violates federal antitrust laws by manipulating search results so as to favor Google's own content and to push rivals' content lower on the results page (or to the oblivion of subsequent pages).

The FTC, in dismissing the "search bias" allegations, reached the right destination, but it took the wrong route to get there. The search results produced by Google's search engine are exempt from government control, whether under antitrust or other laws, because they are protected, as free speech, by the proverbial "higher law" of the First Amendment.

First Amendment considerations should have stopped the FTC's investigation at the outset. That freedom-of-speech is never mentioned in the agency's statement is, well, bizarre.

Google is a publisher of information in the form of search results. The search results themselves are speech. They respond to users' queries, which are also speech. Not only are Google's search results covered by the First Amendment, but Google's choices about what content to point to, the ranking of that content relative to other search results, and the presentation generally of website pages responsive to a search -- these choices constitute editorial functions, subject to the strongest safeguards for free speech.

The New York Times (or The Huffington Post, or other reputable news organization of your choice) gets to decide -- free from government interference -- what articles to publish; what news stories to postpone, downplay or ignore; and how prominently to position the stories it chooses to publish. This has been clear since the Supreme Court's decision in Miami Herald v. Tornillo, nearly 40 years ago.

And while the Times aspires to fairness and objectivity in its news judgments, First Amendment protection is not conditioned on adherence to an ideal of impartiality. Overtly opinionated and partisan publications enjoy First Amendment protections for their editorial choices. (Think Daily Kos or the Weekly Standard.)

Although all publishers are subject to antitrust (and many other) laws in the commercial aspects of their business -- for example, employment matters, the pricing of advertising, environmental issues -- the First Amendment precludes any government role, direct or indirect, in publishers' editorial functions.

These constitutional principles apply fully to Google. It too is a publisher of information. It engages in editorial judgments, billions of times a day. That its search results are generated by computer algorithms, rather than acres of journalists, makes no difference. The algorithms themselves are, of course, written by people, functioning as editors (whether or not they would describe themselves that way). The algorithms implement Google's editorial judgments, sifting through the internet to identify useful content responsive to users' searches.

True, the referenced content in Google's search results typically is content produced by others, not Google. But words that are protected speech at one internet address remain protected at another. In any case, authorship is irrelevant to Google's claim to First Amendment protection for its editorial functions: its identification and selection of content and its ranking of that content relative to myriad other content sources.

Any doubt about the fundamentally editorial nature of Google's publishing activities were put to rest by the government of China in its tug-of-war with Google over its search engine subsidiary in China. The government demanded that Google submit to censorship of its search results. The censors insisted, in effect, that Google cede its editorial functions to them. In 2010 Google, to its credit, said NO, withdrawing from direct search engine competition in the world's biggest internet market.

The FTC's decision, while no doubt welcome at Google headquarters, does not remove the threat of antitrust litigation. Waiting in the wings are dozens of state attorney generals and Google's many competitors, Microsoft among them, who would benefit politically or financially from a judicial finding that Google is a monopolist.

When their lawsuits are filed, the First Amendment will be front and center in the parties' arguments and the courts' deliberations.

Peter Scheer, a lawyer and executive director of the First Amendment Coalition, is NOT a paid consultant to Google. Scheer's views are his alone; they do not necessarily reflect the views of FAC Board members.

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