Google's search engine results are free speech and I don't care

Google's search engine results are free speech and I don't care

Summary: Think the United States government has a chance in hell of beating Google's legal team? Think again.

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TOPICS: Google
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Have you heard: the latest and greatest tech-law debate concerns whether Google search results are protected by the First Amendment to the US Constitution?

Of course, they are. Maybe if those results were just automatically generated page rankings they wouldn't be. But, since actual people at Google manipulate the results -- exactly how and how much Google won't say -- the content is editorial in nature and is therefore as protected by the First Amendment as the front page of the Wall Street Journal.

In case you're interested in the full battery of legal arguments, you're free to endure the recent white paper commissioned by Google on the subject. In 27 pages, the law professor Eugene Volokh, who is too smart to be writing commercial white papers, makes the case for search engine results as protected speech so convincingly that there's little point in trying to refute him. Yes, he was paid by Google's law firm to write it. Yes, the arguments are still decisive.

Why is the status of search-engine results important? Google is laying the legal foundations for an antitrust defense that probably won't matter. Free speech or no, the FTC is still going to try to break up monopolies, and when Google triumphs over the FTC it will be a victory of attrition not the Constitution.

Perhaps more realistically, when know-nothing legislators try to force Google to make its search results more "fair," a First Amendment line of argument may come in handy. Later, the same arguments may undermine Google when it argues that it's just delivering non-judgmental search results, but I'm sure they'll try to maintain both positions.

In the end, though, I don't really care whether Google search results are protected speech or not, and I think the whole discussion is a waste of time. Here's why:

1. Google is the best search engine

There's one reason and one reason only that Google is a verb: because Google is the best search engine. My friend Jeff is the only person I know who doesn't say he's going to "Google" something when he searches. He uses “Bing” as a verb. He actually says, in his Texas drawl, "I'm gonna Bing that!" Jeff is not stupid, he's just mistaken and a little eccentric.

That of all the intelligent people I know only one of them prefers Bing to Google explains why Google has an 87.9% global search-engine market share and Bing has 4.2% -- with probably something like 4.1% of that number accounted for by people using Bing unintentionally because they use a browser with Bing as the default.

2. Being the best is fragile

I switched to Google years ago when I noticed that my existing search engine results sucked compared to the results from this minimalist newcomer. If Lycos and Excite ever come up with better search engine results than Google, I'll switch back to them (do they still exist?).

As Google rightly says, "Competition is just one click away." Legislators are welcome to waste years and zillions of our dollars trying to make Google more fair and less gigantic, but if Google ever stops being the best the users will take care of the situation by the end of the week. And, as long as Google remains the best, attempts to regulate it can only hurt users.

Strip away everything else: Android, all the cool free stuff we get from Google like Gmail and Sketchup, and Google TV (okay ignore that one), and Google is still Google. Strip away the search engine and you're left with nothing.

3. Google will beat the US government

We can debate the intricacies of antitrust law forever, but the notion that the US government can take Google in the courtroom is absurd. Google is smarter and more tenacious than the government's team will ever be, even if the government uses private lawyers paid for by the taxpayers.

Google will outlast presidents, judges, and FTC heads until the government gives up. Other countries are welcome to try too -- their reward, in the unlikely event Google can be beat in any modern court system, will be that Google will take its products elsewhere and their citizens will be stuck with Bing.

Trying to break Google up is a monumental waste of time, money and effort. Putting us through a mega Google antitrust trial is almost as stupid as putting the United Nations in charge of the internet -- the subject of my next post.

About the author: Steven A. Shaw is a former litigator and is the Executive Director of the Society for Culinary Arts & Letters.

Topic: Google

Steven Shaw

About Steven Shaw

Steven Shaw used to be a litigation attorney at Cravath, Swaine &gMoore, a New York law firm, and is now the online community managergfor eGullet.org and the Director of New Media Studies at thegInternational Culinary Center.

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50 comments
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  • some of your points are Invalid..

    As Google rightly says, ???Competition is just one click away.??? Legislators are welcome to waste years and zillions of our dollars trying to make Google more fair and less gigantic, but if Google ever stops being the best the users will take care of the situation by the end of the week. And, as long as Google remains the best, attempts to regulate it can only hurt users.

    - This isnt how it works, IE would still hold around 80% of the market if they could push IE with their OS's instead of having to give people a choice. "The Users" or the majority of them, dont care what they use, they dont check the relevance of their search results on Google against the relevence on Bing.

    MS Thought they were bigger than the US gov, and look how that panned out.... However it isnt the USA that Google should be worried about, its the EU......
    danjames2012
    • Actually, it's your point that's completely invalid

      [i]"- This isnt how it works, IE would still hold around 80% of the market if they could push IE with their OS's instead of having to give people a choice. "The Users" or the majority of them, dont care what they use, they dont check the relevance of their search results on Google against the relevence on Bing."[/i]

      Actually, IE is still the only web browser that ships with any version of Windows. Every user who is using something other than IE on Windows had to make a conscious decision to go out and download a competing browser. MS isn't prohibitited from installing IE with Windows and they don't ship any other browsers with Windows, yet IE is losing market share. That would seem to completely invalidate your point.
      swmace
    • OTOH

      Google got big on people telling people this was the best. Remember when Altavista (or something) was what you always used? Switching to Google wasn't hard. Switching away won't be.
      Natanael_L
    • A browser != website.

      Oh come on, choosing a browser is completely different than choosing a website.
      Bozzer
  • Monopoly or not?

    A monopoly is one of the major threats to a free capital society. I don't have any problem with Google being considered the 'best' search engine. Nor do I have an issue if nearly 80% of global searches are done on Google.

    http://www.netmarketshare.com/search-engine-market-share.aspx?qprid=4&qpcustomd=0

    One issue I have is when Google search results are manipulated to favor other Google services. I don't blame them for promoting their other services, but search results are the new yellow pages. People expect what they are seeing is a fair representation of the market.

    The second and more troubling problem is that Google punishes competitors to services they offer in search rankings. I think this is the focus of unfair monopolistic activities the government is rightly reviewing.
    netmarketshare
    • "Google punishes competitors"

      If that claim can be proven then Google could find themselves in hot water. It would be a hard one to prove, though, since I can go to Google, type in "Search Engine" and see links to numerous other search engines on page 1 including Bing, AltaVista, Yahoo, MSN, Ask and Lycos. I don't think anything short of a code review could possibly prove that claim.
      jasonp@...
      • .

        I found it quite funny how the company most hit by this new google "algorithm" is Nokia, losing around 3000% of web visibility.
        danjames2012
      • Free speech that "punishes competitors" is legal

        The Wall Street Journal is allowed to "favor" it's own content by including "Visit WSJ.com for further info" in its printed papers. The WSJ can also reference is sports sections on the front page. Heck, they can even write an editorial badmouthing the New York Times. That's the beauty of free speech!

        Citizens have the right to say, write, and publish whatever they choose, even if you don't like it!
        thompsong89
      • @thompsong89

        As long as it isn't deliberate misinformation, lies, etc, fine.

        Does free speech allow for such extreme conditions?

        And what happens if you get victimized by it? Will you then remain just as you are now? :)

        oh, you won't! Oh dear... :(

        And if people allow x, y, or z to happen, they then shouldn't say how society is devolving because of the ramifications of x, y, or z happening... "cause and effect"...

        Food for thought.
        HypnoToad72
      • Good point

        danjames2012. That really goes against everything the blogger wrote.

        Is it right that a comapny can claim that they are not "fixing the books" in reference to search, while adding algorithyms that remove any mention of it's competitors in it's results?
        William Farrel
    • That what Googe does

      If you type in product search engines, you will get loads of search engines design to find products just for you. If you type in Maps/directions, you will get a list of sites that can give you directions.

      If you type in free email, Yahoo comes first (I am sure that will raise a few laughs in the court room), not gmail.
      Type in Price comparison sites and you will get a list of comparison sites.

      What some of these companies are calling for is that when I search for a new washing machine, instead of Google showing me a load of Washing Machines and there prices, which is what the searcher is after, they want Google to show me a list of search engines which may or may not be what I want, or in other words instead of showing me what I want, they want Google to show me places that might then show me what I want.
      Knowles2
    • Ridiculous Assumption!

      The definition of a Monopoly isn't contingent on being the most prolific provider of services or products. It's all about the fact that some of the most prolific providers attempt to maintain that market share by killing the competition or conditioning the market by closing off segments to competitors.

      Google does none of these. The fact that when I log in to my Google Account (gmail, YouTube, G+, Voice, etc) and Google Search gives me results that are different from the publically accessed results is a non sequitur argument w/o merit posed by competitors who just don't have the winning combination. Where the main point is that Google above all else pays far better attention to it's customer base than it does to what their competition is doing!!! ......and that is just a matter of Business Best Practices if you want to stay in Business!
      KronJohn
    • retarded

      @netmarketshare "but search results are the new yellow pages."

      i hate to explain this to you, but people pay to be in the Yellow pages. You don't get listing just because, you have to pay the man. I think google has every right to show sponsored listing because they give the results. If you don't like them, go someplace else, but don't whine about it when there are other places you can shop if you don't like it.
      pcampagna
    • If a monopoly uses its power and clout, then it's no longer a free market

      but a plutocracy. By, of, and for the money.

      And that's at odds with a legitimate democracy, when those with money use their influence to deprive others of theirs. That's the difference.
      HypnoToad72
    • Why shouldn't Google promote it's own services?

      Someone already mentioned the WSJ issue below.

      Google isn't "removing" competitors links.

      It's simply giving priority to it's own.

      Do you expect Ford to promote General Motors by place adverts for their cars in their dealerships above their own?
      Bozzer
    • Yes, Google IS the new Yellow Pages.

      That is exactly the point. The YP compiled a huge amount of data and offered if for free to customers, the same way Google does. The YP sold sponsored ads to pay the bills, the same way Google does.

      If one turned to the Attorneys section in the YP and read the first 2 pages (out of the hundreds), one would have a skewed perception of where the NEAREST legal office was located, because they weren't sorted by proximity to oneself. If one read through hundreds of pages, one would still not know who the BEST attorney was, because that information would be highly subjective. People didn't open the YP expecting to see a popularity-based star rating with each ad (that would have been nice, but it wasn't the approach). So it was never really a "fair representation of the market", only a representation of who could afford to pay for larger ads. Similarly, Google has never claimed that results are a "fair representation of the market." Anyone who thinks otherwise is misinformed.

      As mentioned in the white paper, "Google has never surrendered the right ... to choose what information it presents and how it presents it." So Google is not legally obligated to give competitors equal ranking treatment. If that doesn't sit well with Google's market base, it is free to jump ship to a "less biased" search engine. Or, perhaps more likely, to find a search engine that has less search algorithm transparency and that delivers results which agree more to the individually subjective relevancy views of its customers. EVERYTHING is biased toward or against someone or something.

      I have not before heard of Google "punishing competitors to services they offer in search rankings." Could you provide something to substantiate that statement?
      LoveMyNexus
  • You Betcha Uncle Sam will Smoke their Butts..

    You just wait and see. It's about time they get their 'come upins'.
    oraman
  • I agree

    the first amendment protects google and FOSS. The government should stay out!
    The Linux Geek
  • Google's search engine results are free speech and I don't care

    [i]1. Google is the best search engine[/i]
    What? Simply not true as proven time and time again.
    Loverock Davidson-
    • .

      askjeeves all the way??? amiright!
      danjames2012