Google search ranking is editorial in nature and qualifies for First Amendment protection

A Google-commissioned legal paper on the constitutionality of regulating search results concludes that the such a regulation would violate the First Amendment. "First Amendment Protection for Search Engine Search Results" was written by eminent legal scholar Eugene Volokh and attorney Donald Falk, who argued that search-results are like the table of contents in a magazine, reflected protected expression in the form of editorial judgment.

In the case of a magazine, the articles are selected by a human editor. In the case of Google, the search results are selected by an algorithm, but the algorithm is created and managed by engineers who apply editorial judgment to the results. I absolutely agree with this conclusion.

However, I'm surprised to see Google in accord with me on this one. In all my discussions with googlers on this subject to date, I've always been told that search-results represent a kind of abstract "relevance," not anything as sticky and human as "judgment." It was as though Google's sorting algorithm provided a wormhole from the walls of Plato's cave straight into your browser.

Up until now, all the arguments against regulating search results I've heard have turned on this notion of search results being untouched by human hands. The reason that an unflattering "sucks" site appears at the top the search for a company's name is that the offending site is "relevant" according to some infallible mathematics of significance. To order Google to rearrange its search results is like ordering a parachute company to change the constant it uses in calculating gravity.

I've always hated this argument. Google regularly "tweaks" its ranking algorithm to provide "better, more relevant" results. These tweaks' success are measured by how "right" they appear, both to Google and to its users. They are, in other words, judgments.

I think that the editorial right to exercise judgment is much more widely understood than the sacred infallibility of robotic sorting. I certainly support it more. But I wonder if Google appreciates that it will now have to confront people who are angry about their search rankings by saying, "I'm sorry, we just don't like you very much" instead of "I'm sorry, our equations put you where you belong." And oy, the libel headaches they're going to face.

Here's Timothy B Lee reporting at Ars Technica:

The authors argue that this selection process is no different, constitutionally speaking, from a newspaper editor selecting wire stories to run, a guidebook deciding which attractions to feature, or a parade organizer choosing which floats to include. The courts have ruled that all of these editorial processes are fully protected by the First Amendment.

Moreover, the paper argues, the courts have held that First Amendment rights generally trump antitrust law—something of increasing concern to a dominant company like Google. "Antitrust law cannot be used to require a speaker to include certain material in its speech product," Volokh and Falk write. They point to a 1945 case in which the courts found the Associated Press had violated antitrust laws, but stressed that its ruling did not "compel AP or its members to permit publication of anything which their 'reason' tells them should not be published." Newspaper editors have the right to decide which stories should be included in their newspapers and which ones make the front page. This suggests that Google has similarly wide discretion to decide which links and other content will appear, and in which order, in response to any given search query.

Here's a quote from the paper itself:

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.

Scholar: regulating Google results would violate First Amendment
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