Courtesy of The New York Times
IS Google search an intermediary like the phone company — simply connecting people with the information they seek? Or is Google search a publisher, like a newspaper, which provides only the information that it sees fit and is protected by the First Amendment?
There are good reasons for Google to want to be considered a mere connector; like other Internet companies, it can beg off responsibility for what is transmitted by its users. That is the useful stance when it comes to rebutting claims of copyright infringement or libel.
But when the issue is anticompetitive behavior — a charge made by rivals and some businesses — Google has lately been emphasizing that it sees itself as a publisher, and it is appealing for different kinds of protections, in the realm of free speech.
How Google has decided to say this is almost as interesting as what is being said. The company hired Eugene Volokh, an influential conservative blogger and a professor at the University of California, Los Angeles, to write a paper last month. In it, he argues that Google search results are protected speech.
Mr. Volokh freely acknowledges that the paper, posted on his blog and shared widely on the Internet, is not academic scholarship but a piece of advocacy, written in his capacity as an academic affiliate at a Los Angeles law firm, Mayer Brown. It is something that would typically be prepared if Google were facing a trial on these issues.
There is no such court case at the moment that Mr. Volokh is pointing toward with his paper, but Google has become a target over how it runs its search engine. Competitors and some companies say Google’s search algorithms favor services owned by Google, a charge Google denies, but one that has drawn the attention of regulators in Europe and the United States.
In September, Google’s chairman, Eric E. Schmidt, was called before a Senate antitrust panel to defend his company’s practices. The chairman of the subcommittee, Herb Kohl, Democrat of Wisconsin, put the question bluntly: “Is it possible for Google to be both an unbiased search engine and at the same time own a vast portfolio of Web-based products and services?”
Mr. Schmidt’s response was measured. He noted that if Google stopped providing helpful search results people would start using other search engines. He also said that profit motives would not distort Google’s search results. “I’m not sure Google is a rational business trying to maximize its own profits,” he said.
If Mr. Schmidt was the good cop, telling the Congress, in effect, “we get it,” when it comes to monopolistic behavior, Mr. Volokh is the bad cop: the message of his paper is that Google is a publisher and can favor its own material or even block another’s. If you don’t like it, tough luck. Try telling a newspaper what it should be printing.
In one chapter, Mr. Volokh argues that some people “have allegedly come to expect that Google will choose search results based solely on supposedly ‘neutral’ computer algorithms, with no preference for Google’s thematic search results.”
“But the critics cannot point to any such guarantees to customers,” he continued, “because Google makes no guarantees.”
Asked for comment, Google wrote in an e-mail that it had commissioned the paper as a way to lend support to two lower court rulings, from 2003 and 2007, that gave Google’s search results First Amendment protections. “Given that federal courts rejected on First Amendment grounds several lawsuits by Web sites over search rankings, we thought these issues were worth exploring by a noted First Amendment scholar,” said Adam Kovacevich, a spokesman on policy issues for Google in Washington.
The paper has managed to get a lot of attention, in part because Mr. Volokh was able to promote it on the Volokh Conspiracy, his popular group blog on legal issues. But the paper also makes great fodder for online discussions because of Mr. Volokh’s style of staking out his position in direct language (with barely any footnotes).