Will The First Amendment Save Google From Antitrust Watchdogs?

Under attack from antitrust regulators in the US as well as in Europe, Google asked UCLA professor and prominent legal blogger Eugene Volokh, writing in his capacity as an academic affiliate at the Los Angeles-based law firm Mayer Brown, to co-author a white paper on the applicability of First Amendment protection to search engines.

The paper is a fine piece of advocacy by one of the most respected First Amendment scholars. According to Prof. Volokh, search engines are to be considered speakers as they employ editorial judgement in choosing what results should be linked to a particular query and how they should be ranked: much like newspapers, magazines, travel guides or online aggregators, when picking their news, columns, attractions or sources and finding a way to present them. He then goes on to review past legal decisions, to conclude that the First Amendment shields search engine results from antitrust law.

Professor Volokh’s case is rooted in sound reasoning and a careful reading of the precedents and, as such, is highly persuasive. Critics like Tim Wu miss the point when they substitute a politically oriented disdain of corporate speech for a dispassionate analysis of the law as it stands. However, Google’s reliance on a First Amendment protection might be disputed from a strategic point of view. I anticipate three major concerns arising from such a stance.

1. It might well be redundant. There are indeed excellent reasons to contrast the notion itself that Google holds a dominant position in search, assuming one’s analysis ventures beyond mere market shares. In fact, search is a dynamic industry, with little if any lock-in effects and zero switching costs, as competition is at all times just one click away. Google’s rise in a market previously dominated by Yahoo! and Altavista proves this point. If Google artificially bumps its own services in search results, then someone else will step in to provide more relevant information and the market will take care of this.
2. Antitrust policy is not the only regulatory challenge that the company is currently facing. On the contrary, Google and other intermediaries have undergone severe scrutiny with regard to their users’ content, in spite of existing safe-harbor provisions. In such cases, Google maintained that it shouldn’t be held liable for intellectual property violations or other illicit behaviors perpetrated by its customers. It is true that most of these allegations concern Google’s non-search services, such as Youtube, yet there certainly is some overlapping. In any case, it will prove extremely difficult to successfully defend two apparently contradictory claims, which at the same time imply both editorial liability and the lack thereof. This is especially true within the EU, where speech doesn’t receive the same degree of protection as in the US, thus limiting the expected benefit of the argument.
3. Finally, the First Amendment is a broad and powerful defence, and other information services may fit into its scope. Think of net neutrality: will ISPs be allowed to filter or degrade particular pieces of content by claiming their free speech rights are at stake? Such a scenario would be at odds with Google’s traditional approach to the matter.

To sum up, Google might succeed in getting rid of the unsought attention of US regulators for its search practitces; but it risks worsening the regulatory climate in different markets in the process.