DOES THE FIRST AMENDMENT IMMUNIZE GOOGLE’S SEARCH ENGINE SEARCH RESULTS FROM GOVERNMENT ANTITRUST SCRUTINY?

Paula Lauren Gibson¹

I. INTRODUCTION

For several years now, Google has faced allegations from various fronts of purported violations of the antitrust laws in regards to its manipulation of its vertical shopping search engine results.² Vertical shopping competitors³ have filed complaints with the FTC and the State Attorneys General.⁴ Those complaints alleged, among other things, that Google violated the antitrust laws⁵ by giving itself preferential treatment in the search results of its own properties through the manual manipulation of its search engine algorithm in order to demote the offerings of rivals, notwithstanding in some cases the alleged superior content of the rival pages.⁶

This article will address only one issue: Whether Google vertical shopping search engine results are "opinions" and, as such, would be protected by the First Amendment of the U.S. Constitution⁷ and/or its state counterparts⁸ from any regulation based on alleged violations of the antitrust laws?⁹

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To do so, this article will first examine whether computerized search engine results are the equivalent of speech and whether such speech amounts to being an opinion. Next, this article will examine whether, if such speech amounts to being an opinion, whether is it entitled to First Amendment protection from government action, in particular, enforcement of the antitrust laws. Through its examination of various cases, including two in which Google asserted a First Amendment defense against private parties, this article will explore the applicable factors and applicable level of constitutional scrutiny assuming that some level of First Amendment protection applies. Ultimately, this article will conclude that a First Amendment defense is likely not available to Google should a government enforcer bring an action on the ground that Google’s search engine’s mode of operation violates the antitrust laws.

II. SEARCH ENGINE RESULTS DERIVED FROM COMPUTER CODE ARE SPEECH

Search engine results are formulated through the use of algorithms. An algorithm is a computer code that provides a step-by-step procedure for calculation or data processing.¹⁰ It is as much a language as English with a structure and a vocabulary that can be used to carry out complex functions or express complex thoughts. Even though algorithms use the language of computer code, and ultimately carry out their functions on a computer via the use of binary code with ones and zeros, such code may still be regarded as "speech" for constitutional purposes.¹¹ In Universal City Studios Inc. v. Corley ("Corley"), the United States Court of Appeals for the Second Circuit drew an analogy between computer code and musical compositions or mathematical equations, indicating that the obscurity or difficulty of understanding what is written does not make "computer code . . . distinguishable from conventional speech for First Amendment purposes."¹² In that case, the court found that computer code, which instructed the computer to perform certain functions which were "capable of being understood and assessed by human beings," qualified as speech for First Amendment purposes.¹³

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In turn, Corley was one of several federal decisions¹⁴ relied upon by the California Supreme Court in DVD Copy Control Association, Inc. v. Bunner¹⁵ to determine that computer code qualified as speech protected by the First Amendment. In Bunner, Andrew Bunner was accused of misappropriation of trade secrets under California’s Uniform Trade Secrets Act. Bunner posted on his website the hacked code for DVD CCA’s "content scramble system" also known as "CSS." Once Bunner was enjoined from further distribution of the broken code, he appealed, claiming the injunction violated his First Amendment free speech rights. Ultimately, though the California Supreme Court found that the dissemination of computer code was speech, it also found that the First Amendment does not prohibit courts from enjoining speech to protect a legitimate property right, in this case, DVD CCA’s encryption code, which was a trade secret. Therefore, the First Amendment did not stand in the way of enjoining Bunner from distribution of the computer code.¹⁶

III. SINCE SEARCH ENGINE RESULTS ARE SPEECH, ARE THEY ALSO OPINIONS?

Based on these cases, this article views computer code as being equivalent to speech for First Amendment purposes. That being said, being "speech" does not automatically qualify such code for First Amendment protection. For instance, it is understood that falsely yelling "fire" in a crowded theatre might be speech, but not protected speech.¹⁷ Therefore, the next question for consideration is what type of speech would be a vertical shopping search engine result: Is a vertical shopping search engine result an opinion or something else? In an April 2012 paper commissioned by Google, with the caveat that "the views within it should not necessarily be ascribed to Google," UCLA Professor Eugene Volokh made the case for Google’s search engine’s results being treated as a judgment or opinion for First Amendment purposes. He stated:

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Search engines’ selectivity is much more comparable to the selectivity of newspaper op-ed pages, which choose to feature only a small fraction of potential columns. Thus, even though the search engine does not generate the content that is linked to by its results, the judgments and opinions about how to rank and present those results are fully protected by the First Amendment.¹⁸

The "opinion" is thus, according to Professor Volokh, Google’s decision as where to place results and how to rank those results.¹⁹ Therefore, it is argued that an antitrust action directed at decision-making conduct involving such "opinions" would be barred by the First Amendment.

Google rivals, on the other hand, make three primary contentions as to why that argument is not so: First, Google’s decisions or manipulations are intended to foreclose competition as to vertical shopping results; second, manual manipulation of the algorithmic results places Google’s own results ahead of the placement of rivals’ results that Google’s own algorithm otherwise determined to be superior, thus giving Google a competitive advantage; and third, Google just simply intends to destroy vertical shopping competitors who seek to tap into Google’s approximate "235 million active users across . . . Google properties"²⁰ as potential customers of Google’s competition.

The difference between Google’s and its competitors’ viewpoints as to the operation of Google’s search engine is whether the algorithm’s determination is just an ad hoc editorial judgment based upon objective criteria or instead consists of manipulated results that are falsely represented to be objective and are used in an anticompetitive manner. In other words, are these vertical shopping search engine results opinions or factual commercial statements (that are, in fact, false or manipulated according to Google’s competitors)?

A. The Search Engine Process for Formulating "Opinions"

To answer this question, it is necessary to discuss the search engine process. Google contends that its "search technologies sort through an ever-growing amount of information to deliver relevant and useful search results in response to user queries."²¹ Put another way, search engines provide "answers" by crawling and indexing websites, calculating relevancy and serving the results to user queries. To do this, an Internet web page crawling device, also known as a "bot," seeks out words on web pages from which an index is created. The Internet user uses keywords to search the index for directions to the relevant websites.

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In Google’s own words, its engineers "write programs and formulas"—an algorithm—which is "designed to deliver the best results possible"²² in response to user queries. The algorithm is a constantly evolving document. Google claims its "algorithms rely on more than 200 unique signals or ‘clues’ that make it possible for Google to guess what any user might really be looking for. These signals include things like the terms on websites, the freshness of content, your region, and PageRank."²³ To keep results "relevant," Google fights spam²⁴ "24/7 mainly through an automatic process but sometimes by manual manipulation."²⁵ Google has long maintained that any changes it makes by manipulation of the original algorithm search results are intended to give the consumer a better experience, not to preserve its own market share.²⁶ So does this process amount to an opinion or to commercial statements of fact or simply to statements of fact? The answer can make a critical difference as to the degree of First Amendment protection.

1. Opinion or Statements of Fact

The meaning of "opinion" has continuously evolved since its common law definition. Speech that appears to convey a fact, I think the sky is grey, is treated as conveying an opinion.²⁷ Justice Powell’s opinion for the Court in Gertz v. Robert Welch, Inc.²⁸ ("Gertz") is, in turn, the lead case for the proposition that statements appearing to be false are still protected under the First Amendment if they qualify as an opinion.²⁹ In that case, the plaintiff, Gertz, was a lawyer who filed a defamation suit against the John Birch Society, which was legally known as Robert Welch, Inc., claiming defamation based upon a society publication which contained many "serious inaccuracies" about him. Accepting that the statements were false but qualified as the opinion of the John Birch Society, Justice Powell’s consideration of the case started with what he called "common ground," that is:

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Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in "uninhibited, robust, and wide-open" debate on public issues.³⁰

Justice Powell stated in his opinion that: "The First Amendment requires that we protect some falsehood in order to protect speech that matters".³¹ His opinion held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."³² "Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary."³³

Gertz was interpreted in a very expansive manner in treating all false statements of fact as amounting to nothing more than opinion, and hence being protected under the First Amendment. For example, in Blatty v. New York Times Co.,³⁴ the California Supreme Court found that "First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement."

However, sixteen years later, in Milkovich v. Lorain Journal Co.,³⁵ the Court would find that cases after Gertz misconstrued its holding, requiring clarification that not all false statements of fact could be labeled as opinions. Milkovich involved the issue of whether a high school wrestling coach could sue a local newspaper and one of its reporters for defamation for accusing him of having committed perjury. Although the lower court granted summary judgment, the Court reversed, noting that the dispositive question was whether the challenged statements could be reasonably interpreted to state a fact.³⁶

The Milkovich Court stated the "false idea—pernicious opinion" much quoted passage from Gertz was not intended to create a "wholesale exemption for anything that might be labeled ‘opinion.’" The Court described the categorical rule adopted by lower courts as a product of "mistaken reliance on the Gertz dictum."³⁷ Instead the Court indicated that, read in context, "the fair meaning of the passage is to equate the word ‘opinion’ in the second sentence with the word ‘idea’ in the first sentence."³⁸ The relevant sentence from Gertz, quoted above, should have been read as: "Under the First Amendment there is no such thing as a false idea. However pernicious an idea may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." The Court saw the quote as "a reiteration of Justice Holmes" classic "marketplace of ideas" concept presented in his dissenting opinion in Abrams v. United States.³⁹ The Court saw the "marketplace of ideas" origin of this passage as pointing "strongly to the view that the ‘opinions’ held to be constitutionally protected were the sort of thing that could be corrected by discussion."⁴⁰ Thus, the Court distinguished between false ideas or opinions, such as "rhetorical hyperbole" and "imaginative expression," and false or deceptive statements of fact.⁴¹

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This correction has important implications for the issue of Google’s search engine being protected under the First Amendment as set out in the prescient dissent of California Supreme Court Justice Grodin in Blatty, which preceded Milkovich:

Suppose that the New York Times, after conducting its normal survey of representative bookstores throughout the country, found that Blatty’s novel was, indeed, the top selling book for a particular week based on its own statistics. Suppose further that, despite this information, the Times purposefully substituted one of its own publications for Blatty’s book at the top of its best seller list in order to enhance its own book’s sales, and entirely omitted Blatty’s book from the list . . . . If a plaintiff can prove that a media defendant knowingly published a false statement for the purpose of inflicting financial injury on him personally, I do not believe that the free speech provisions of either the state or federal Constitution would be offended if the defendant were held liable in damages for such conduct, even if it were not obvious on the face of the publication who the defendant was intending to injure.⁴²

The accusations against Google contend that it has done just that: favored its own inferior search results over those of competitors in a manner that is deceptive. Moreover, these search results are not like the kinds of opinions or ideas discussed in Milkovich that could be corrected in the court of public opinion. Milkovich, taken in conjunction with this dissent in Blatty, would thus suggest such a result is not protected opinion. However, the fact that vertical shopping search engine results are not opinions, and thus automatically protected under the First Amendment, does not mean that they are free to be regulated under the First Amendment. The next step is to determine what kind of speech are vertical shopping search engine results: commercial speech or ordinary statements of fact.

2. Commercial Statements of Fact or Ordinary Statements of Fact

This article now turns to the next step of determining whether vertical shopping search engine results are commercial speech. The test for identifying commercial speech is whether the expression at issue proposes a commercial transaction.⁴³ There may be a distinction, however, between speech that is part of a commercial transaction, as that appears possibly to involve private matters more beyond the purview of the First Amendment, and speech that proposes a transaction as that appears likely to involve more public matters such as advertising that can trigger enhanced First Amendment scrutiny. This distinction is most noticeable in the case of Dun & Bradstreet, Inc. v. Grove⁴⁴ ("Dun & Bradstreet I") and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. ("Dun & Bradstreet II").⁴⁵

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Dun & Bradstreet I involved a publisher of credit reports that confidentially analyzed plaintiff, among many other companies, from time to time at the request of suppliers and creditors.⁴⁶ Even though the publisher erred in reporting that there was an unpaid judgment against plaintiff as opposed to plaintiff’s predecessor corporation (though an error that the publisher retracted), the trial court issued a judgment notwithstanding a jury verdict of libel in favor of the publisher, noting that such an innocent error was not libel under First Amendment law.⁴⁷ On appeal, the United States Court of Appeal for the Third Circuit reversed, finding that such confidential factual reports on matters of private concern did not trigger enhanced First Amendment protections applicable to matters of public concern or matters involving an opinion.⁴⁸ Though the United States Supreme Court denied certiorari,⁴⁹ Justice Douglas, who dissented, proposed that any false statement, private or public, commercial or not commercial, on matters of fact could not be proscribed under the First Amendment as being libelous.⁵⁰

Dun & Bradstreet II involved the same publisher of credit reports who was sued again for defamation, this time for a false, though quickly corrected, report that the plaintiff had filed for voluntary bankruptcy.⁵¹ The Vermont Supreme Court reversed a trial verdict in favor of plaintiff in drawing a media versus non-media distinction.⁵² The United States Supreme Court affirmed the Vermont Supreme Court but on different grounds.⁵³

In particular, Justice Powell, the author of Gertz, who was writing for a majority of the Court, found that the credit report involved matters of private concern and, as such, enjoyed a less stringent measure of First Amendment protection.⁵⁴ Interestingly, the Court analogized this situation to other circumstances in which the flow of information was regulated without offending the First Amendment, including the exchange of price and production information among competitors.⁵⁵

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In noting that that speech did have some degree of First Amendment protection, the Dun & Bradstreet II Court cited a particular statement in its earlier opinion of Connick v. Myers⁵⁶ that speech on matters of private concern cannot be suppressed altogether unless it "falls within one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons within its jurisdiction."⁵⁷ This suggests that, absent a complete ban on private communications as part of commercial transactions, only rational basis scrutiny would apply under the First Amendment.⁵⁸ However, Dun & Bradstreet II stressed the private and confidential nature of these credit reports, distinguishing the situation in which the flow of such information, even if that information were economic or commercial, was public.⁵⁹

As with Dun & Bradstreet I, there was a dissent.⁶⁰ The dissent argued that libel actions should not be allowed on any matters of public or private concern under the First Amendment.⁶¹ However, the dissent recognized that, even under First Amendment jurisprudence, there is a strong cognizable state interest in protecting consumers and regulating commercial transactions where such speech is concerned that could justify appropriate regulation.⁶²

Accordingly, what may flow from Dun & Bradstreet I and Dun & Bradstreet II is that proposing a commercial transaction may enjoy a higher standard of protection under the First Amendment than the commercial transaction itself, especially if that transaction is not public. In this regard, Google’s alleged market manipulation seem to be a hybrid between involving a commercial transaction and proposing one since it uses the search results (a commercial transaction) both to sell its own products and sell it search results. Google summarizes its search engine queries into three basis categories:⁶³ "Action intent;"⁶⁴ "Information intent;"⁶⁵ and "Navigation intent."⁶⁶ Competitor allegations have implicated all three types of searches: competing vertical shopping site for purchases of goods have been ranked lower or blocked;⁶⁷ competitor product or service reviews have been hijacked;⁶⁸ and searches have been claimed to redirect searches from an offering company to Google’s own products.

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However, Google does not present its opinions as such but rather as facts derived from predetermined algorithm private sources. Google’s own policies make various statements that would lead a user to believe that search results are not opinions but rather factual statements based on private sources. For example, such policies claim that "Google’s index merely reflects that the page exists on the wider web, and not that Google endorses it";⁶⁹ or that, "There is very little that we remove from search results on a discretionary basis. Aside from spam, the main cases where we might take action are certain types of sensitive information and adult spam."⁷⁰ That being said, there still remains one perhaps critical difference between the credit reports at issue in Dun & Bradstreet I and Dun & Bradstreet II and Google’s vertical shopping search engine results. While those results are available only to the individual who requests them, the search engine itself and its algorithm operate via the medium of the Internet, which is open to the public.

This suggests on balance that Google’s vertical shopping search engine results could fall in the commercial transaction bucket, like credit reports, and as such could enjoy only a rational basis level of protection under the First Amendment. But that is far from being established.

3. False Commercial Speech or True Commercial Speech

Even if Google’s hybrid speech could be treated as commercial speech, it would still be subject to rational basis protection (if any at all) under the First Amendment if it were being regulated only as to its falsity. In this respect, allegations continue to be made that Google’s vertical shopping search engine results are in effect "false" because they are manually manipulated in contrast to Google’s representations, and such "false" speech or advertising alone may remove any First Amendment protection that even commercial speech might otherwise enjoy.⁷¹ Indeed, for almost eighty years, the notion that false or misleading advertising has an anticompetitive effect, and as such can and should be regulated, has prevailed.⁷² This is not to say, of course, that false speech outside the economic or commercial realm is not entitled to First Amendment protection since the absence of such protection would give the government too broad a "censorial power."⁷³

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IV. OTHER FACTORS TO CONSIDER REGARDING WHETHER VERTICAL SHOPPING SEARCH ENGINE RESULTS ARE PROTECTED

Consequently, this article finds in the first instance that the nature of Google’s vertical shopping search engine results at best would elicit rational basis protection under the First Amendment because, while it is speech, it is not an opinion; it is not commercial speech; and even if it were commercial speech, it could be regulated for its falsity or deception. However, the nature of the regulation proposed here, namely an application of the antitrust laws, would also support an application of rational basis scrutiny under the First Amendment as a general matter. It is to this point that this article turns.

A. Appropriate Level of Scrutiny of Any Enforcement Action

Conceding that the Google algorithm is speech, the appropriate level of scrutiny or evaluation for antitrust regulation of that speech (or any speech) must still be determined.⁷⁴ Courts have three levels of scrutiny or review that are used to weigh the government’s interest against the infringement of a constitutional right such as the First Amendment: (1) strict – "suspect legal restrictions . . . must [be subjected] to the most rigid scrutiny;"⁷⁵ (2) intermediate – "content neutral" and "narrowly tailored to serve a significant governmental interest;"⁷⁶ or (3) rational basis – a reasonable means to an end that may be legitimately pursued by the government.⁷⁷ This latter test requires that the governmental action only be "rationally related" to a "legitimate" government interest.⁷⁸ As it turns out, at best rational basis applies simply because the antitrust laws are viewed as having only an incidental impact on speech in their regulation of commercial transactions.

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Strict scrutiny can apply as a conceptual matter only where pure, non-commercial speech is concerned. Pure speech has never been definitively defined, but the cases suggest that such speech either "editorializes on any subject, cultural, philosophical, or political," reports upon "newsworthy facts" or makes "generalized observations even about commercial matters" and is different from commercial speech.⁷⁹ At best, it would appear that Google’s vertical shopping results are commercial speech, as discussed above.⁸⁰ Antitrust regulation typically would not tread on the kind of pure speech involved here. Therefore, strict scrutiny should not apply.

However where commercial speech is involved, an argument can now be made that the form of scrutiny is a higher form of intermediate, heightened level of scrutiny, even if not strict scrutiny. For instance, in Sorrell v. IMS Health Inc.,⁸¹ the Court was faced with a law which on its face contained "content-and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information."⁸² That law was aimed at pharmaceutical marketers, and did not apply to other non-commercial purveyors of that same information. The Court acknowledged that "restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on non-expressive conduct."⁸³

The Court further noted, in what turns out to be an important distinction, that "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech," and as an example, noted that "antitrust laws can prohibit agreements in restraint of trade."⁸⁴ Ultimately, the Court in Sorrell found that Vermont’s law imposed a burden based on the content of speech and the identity of the speaker such that "heightened judicial scrutiny" is warranted.⁸⁵ Although some commentators have seen Sorrell as an expansion of First Amendment protections to the mere dissemination of information via software,⁸⁶ it is unlikely that this case has any impact at all on antitrust enforcement given that it expressly distinguished said enforcement as not falling within the scope of the First Amendment. The goal of antitrust regulation is unrelated to the suppression of expression on the basis of neither source nor content.⁸⁷

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Indeed, numerous cases have found and proscribed restraints of trade in various First Amendment contexts in spite of speech being involved in one capacity or another: Associated Press v. United States⁸⁸ (preventing members from selling news to nonmembers, and also making it difficult for nonmembers to join were restraints of trade); Lorain Journal Co. v. United States⁸⁹ (antitrust laws violated by a newspaper publisher’s refusal to publish advertisements from businesses that also placed advertisements with competing radio station); Citizen Publishing Co. v. United States⁹⁰ (upholding injunction prohibiting newspaper publishers from engaging in joint operating agreement); National Society of Professional Engineers v. United States⁹¹ (professional association’s ban on competitive bidding for engineering services violated the antitrust laws even though one means of carrying out the ban was through the publication of an ethical code); American Society of Mechanical Engineers v. Hydrolevel Corp.⁹² (professional association violated the antitrust laws through the issuance of an inaccurate safety report used to undermine a competitor’s product); Federal Trade Commission v. Superior Court Trial Lawyers Ass’n⁹³ (an attorneys’ association’s boycott of assignments to cases involving indigent defendants violated the antitrust laws even though the boycott had an expressive component); and Wilk v. American Medical Ass’n⁹⁴ (a medical association’s boycott of chiropractors violated the antitrust laws even though one means of enforcing the boycott was through the association’s code of ethics). And, as set out in the debates of the Court between the majority and the dissent in such opinions as Dun & Bradstreet II, antitrust regulation is viewed as generally not offending the First Amendment. This suggests that, at best, only rational basis review applies where the application of the First Amendment laws, absent viewpoint discrimination,⁹⁵ which is not an issue here.

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B. Though a First Amendment Defense Must Be Examined on a Case-by-Case Basis Where High-Technology Is Concerned, the Allegation of False or Deceptive Speech Means that the Result Does Not Change

Where the First Amendment is concerned, it is not just a matter of examining the applicable level of scrutiny as a general matter. First Amendment jurisprudence is in a constant state of flux insofar as such high-technology issues as computer code or the operation of the Internet is concerned. Courts have been reluctant to generally answer "categorically" what violates the First Amendment. Instead, courts have taken, as described by the Second Circuit in Name.Space, Inc. v. Network Solutions, Inc.,⁹⁶ "an ‘evolutionary’ or ‘as-applied’ approach to the task of tailoring familiar constitutional rules to novel technological circumstances, favoring ‘narrow’ holdings that would permit the law to mature on a ‘case-by-case’" basis."⁹⁷ Thus, the constitutional questions presented in regard to any violation of the antitrust/consumer protection laws must be examined as applied to the specific facts of any case where the high-technology industry is concerned.

But here, competitors claim that the Google algorithm search result is manually manipulated in such a way as to be false. And, as the Court has stated: "[T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues."⁹⁸ It would not seem that the nature of the high-technology industry should or would somehow cause society to have to revisit that truism. The analysis, however, cannot end here.

In Professor Volokh’s paper supporting Google,⁹⁹ he contends: "[t]wo federal court decisions have held that search results, including the choices of what to include in those results, are fully protected by the First Amendment." The two cases cited, Search King v. Google Technology¹⁰⁰ (which is unpublished) and Langdon v. Google, Inc. each purport to address this First Amendment as a defense issue,¹⁰¹ although neither case involves government law enforcement. However, these cases serve to highlight only how, at best, the examination of First Amendment issues should occur on a case-by-case basis.

In Search King, the plaintiff alleged tortious interference with contract. Google admitted that it demoted Search King’s, and a related entity’s, PR Ad Network ("PRAN") page ranks after Google learned that PRAN was profiting by selling ad space on web sites ranked highly by Google’s PageRank system.¹⁰² Defendants argued that the plaintiff could not state a claim for violation of his right to free speech under either the United States or Delaware Constitution because they were not state actors.

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The district court rejected this claim in drawing an analogy to Jefferson County School District No. R-1 v. Moody’s Investor’s Services, Inc.¹⁰³ In Jefferson School District, Moody’s published an article regarding the bonds in its "Rating News," an electronically distributed information service sent to subscribers and news services. Moody’s stated that although it had not been asked to rate the bonds, it intended to assign a rating to the issue subsequent to the sale. Moody’s then discussed the bonds and the school district’s financial condition, concluding that "[t]he outlook on the district’s general obligation debt is negative, reflecting the district’s ongoing financial pressures due in part to the state’s past underfunding of the school finance act as well as other legal uncertainties and fiscal constraints." That negative report was then repeated in the The Dow Jones Capital Market Reports.

The court in Search King made the following analogy to the claims in Jefferson County School District in dismissing the plaintiff’s claims:

Like the review in Jefferson County, a PageRank is an opinion—an opinion of the significance of a particular web site as it corresponds to a search query. Other search engines express different opinions, as each search engine’s method of determining relative significance is unique . . . the PageRanks do not contain provably false factual connotations. While Google’s decision to intentionally deviate from its mathematical algorithm in decreasing SearchKing’s PageRank may raise questions about the "truth" of the PageRank system, there is no conceivable way to prove that the relative significance assigned to a given web site is false. A statement of relative significance, as represented by the PageRank, is inherently subjective in nature. Accordingly, the Court concludes that Google’s PageRanks are entitled to First Amendment protection.¹⁰⁴

Since no government actors were involved, it would appear that consideration of the First Amendment issue was not necessary to the determination of the case. But what is interesting is the Court’s nod to the "truth" of the PageRank system.

The dicta from the dissent in Blatty,¹⁰⁵ coupled with the case-by-case determination requirement from First Amendment jurisprudence, would suggest a different outcome in light of Milkovich¹⁰⁶ if government enforcers were to bring a case based on their uncovering actual misrepresentations involved with the advertisement of Google’s vertical shopping search engine results. The actual falsity of the page ranking, as shown by evidence, might indeed remove the ranking from the protection of the First Amendment notwithstanding Search King.

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The second case is Langdon v. Google, Inc.¹⁰⁷ In that case, the pro se plaintiff alleged that his First Amendment freedoms were violated by Google’s refusal to place web advertisements for plaintiff’s two sites, which were critical of North Carolina officials, as well as a separate site critical of the Chinese government. As a defense, Google asserted that to "compel it to speak in a manner deemed appropriate by Plaintiff and to prevent Google from speaking in ways that Plaintiff dislikes" would contravene the First Amendment.

While the pro se plaintiff did not brief this issue, the district court did address the issue anyway in detail, citing three newspaper cases for the proposition that "the injunctive relief sought by Plaintiff contravenes Defendants’ First Amendment rights." One of those cases, The Miami Herald Publishing Co. v. Tornillo,¹⁰⁸ involved a decision by the United States Supreme Court declaring unconstitutional Florida’s "right of reply" statute that had granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper, and made it a misdemeanor for the newspaper to fail to comply. That statute was declared unconstitutional by the Tornillo Court as a content-based violation of the First Amendment’s right of freedom of the press rather than speech.

Another case, Sinn v. The Daily Nebraskan,¹⁰⁹ involved a decision from the United States Court of Appeals for the Eighth Circuit and, as it addressed the editorial discretion of a state university publication, also involved freedom of the press rather than freedom of speech. The last, Associates & Aldrich Co. v. Times Mirror Co.,¹¹⁰ an old case from the United States Court of Appeals of the Ninth Circuit—that predated even Gertz let alone Milkovich—involved a movie producer’s objection to changes being made to his advertising copy pursuant to the Los Angeles Times’ censorship code. As noted by the court, the movie producers’ First Amendment rights were not implicated, since the Times was not a government actor.

Langdon thus has very limited precedential value even if one were not to factor in the lack of government actors or the presence of a pro se plaintiff who did not even brief the issue in question.

V. CONCLUSION

While the computer code involved in Google’s search engine processes and results constitutes speech, those results do not qualify as an opinion and it can be questioned as to whether they even qualify as commercial speech. If they do not qualify as commercial speech, or if they did, but could be shown to be false, then their regulation under the antitrust laws would involve only rational basis review.

In fact, the application of the antitrust laws has generally been upheld under the First Amendment, as the application of those laws is viewed as having only an incidental impact on speech. This also suggests that, at most, absent viewpoint discrimination, only rational basis would apply.

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And, while the courts have shown solicitude for applying a case-by-case analysis where the First Amendment and high-technology is concerned, it is hard to imagine how such an analysis would yield a different result here if (as Google’s competitors alleged) Google’s vertical shopping search engine results were false or deceptive.

It is true, of course, that Google’s algorithm is a constantly evolving program and has continued to change since the time of publication of the various Google cases. As a result, not only is it the case that those cases—in which Google was victorious—do not have any precedential value as to any government enforcement case that may be brought, but it also remains true that any case brought against Google has to be judged on its own facts, especially where high technology is involved.

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Notes:

^1. The author is a Deputy Attorney General for the State of California in the Antitrust Law Section. The views and opinions expressed in this page are strictly those of the author and are not the views or opinions of the Office of the California Attorney General, the American Bar Association, or the State Bar of California. Annette Goode-Parker, Sr. Legal Analyst, provided invaluable assistance in the research and writing of this article. This article appeared originally in the Fall 2013 issue of Icarus, the journal of the Media and Technology Committee of the ABA’s Antitrust Section.

^2. This article distinguishes between vertical shopping search engine results and organic search engine results. "Organic search results are listings on search engine results pages that appear because of their relevance to the search terms, as opposed to their being advertisements." Organic Search, Wikipedia (Sept. 14, 2013), available at http://en.wikipedia.org/wiki/Organic_search; A vertical search engine, as distinct from a general web search engine, focuses on a specific segment of online content. Id., Vertical Search, available at http://en.wikipedia.org/wiki/Vertical_search. This distinction could be a basis for determining the relevant market for establishing monopoly power.

^3. Google’s 10-K for the year ending December 31, 2012 describes these vertical shopping engines as "competitors." See Google, Inc., Annual Report (Form 10-K), at 8 (Jan. 29, 2013) ("Our business is characterized by rapid change and converging, as well as new and disruptive, technologies. We face formidable competition in every aspect of our business, particularly from companies that seek to connect people with information on the web and provide them with relevant advertising. We face competition from: Vertical search engines and e-commerce websites, such as Kayak (travel queries), Monster.com (job queries), WebMD (for health queries), and Amazon.com and eBay (e-commerce)"), available at http://www.sec.gov/Archives/edgar/data/1288776/000119312513028362/d452134d10k.htm.

^4. Google’s competitors have also filed complaints with the European Commission, which are not discussed herein due to this paper’s focus upon the First Amendment of the U.S. Constitution.

^5. Whether this conduct violates the antitrust laws has been the subject of great debate. Indeed, the Federal Trade Commission determined that ranking system’s benefits to consumers outweigh any harm suffered by rivals and declined to take formal action against Google under Section 5 of the FTC Act. In the Matter of Google, Inc., Statement of the Federal Trade Commission Regarding Google’s Search Practices, FTC No. 111-0163 (Jan. 3, 2013), available at http://ftc.gov/os/2013/01/130103googlesearchstmtofcomm.pdf.

^6. See http://www.fairsearch.org/ for a complete discussion of these competitors’ positions and concerns.

^7. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const., amend. I, available at http://www.law.cornell.edu/constitution/first_amendment.

^8. For California’s version of the First Amendment, see Cat. Const., art. I, § 2, available at www.leginfo.ca.gov/.cons/.article_1.

^9. Outside of the antitrust enforcement context, search engines often enjoy special protections from liability as a statutory matter. For example, Section 230 (c) (1) of the Communications Decency Act, 47 U.S.C. § 230 (c) (1), provides that "no provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." According to the Ninth Circuit, "the touchstone of section 230(c) is that providers of interactive computer services are immune from liability for content created by third parties." However, in Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit noted: "[O]rdinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, nor are they designed to achieve illegal ends—as Roommate’s search function is alleged to do here. Therefore, such search engines play no part in the ‘development’ of any unlawful searches." Id. at 1167. This article will not address those special exemptions, whether such exemptions are valid, or whether such exemptions should be imported in some fashion into the antitrust context.

^10. Algorithm, Wikipedia (Sept. 14, 2013), available at http://en.wikipedia.org/wiki/Algorithm.

^11. Universal City Studios Inc. v. Corley, 273 F.3d 429, 446 (2nd Cir. 2001) ("Corley").

^12. Id.

^13. Id.

^14. See, e.g., Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000) (regarding export of encryption software: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 326 (S.D.N.Y. 2000), aff’d 273 F.3d 429 (2d Cir. 2001) ("Reimerdes") (regarding decryption software – "It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code is a continuum."); United States v. Elcom, Ltd., 203 F. Supp. 2d 1111, 1126 (N.D. Cal. 2002) (anti-trafficking provisions of the Digital Millennium Copyright Act—"Computer software is expression that is protected by the copyright laws and is therefore ‘speech’ at some level"); see also Bernstein v. U.S. Dept. of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996) (First Amendment extends to source code); Karn v. U.S. Dept. of State, 925 F. Supp. 1, 10 (D.D.C. 1996) (assuming First Amendment extends to source code).

^15. DVD Copy Control Ass’n, Inc. v. Bunner, 31 Cal. 4th 864 (2003) ("Bunner").

^16. Id. at 877-85.

^17. See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.").

^18. Eugene Volokh, First Amendment Protection for Search Engine Search Results, at 15 (April 20, 2012) ("Volokh"), http://www.volokh.com/wp-content/uploads/2012/05/SearchEngineFirstAmendment.pdf.

^19. "When search engines select and arrange others’ materials, and add the all-important ordering that causes some materials to be displayed first and others last, they are engaging in fully protected First Amendment expression— "[t]he presentation of an edited compilation of speech generated by other persons." Volokh, supra at note 18, at 15-16 (Citations omitted).

^20. Google 10-K, supra note 3, at 3.

^21. Google 10-K, supra note 3, at 4.

^22. Google, How Search Works—The Story, http://www.google.com/insidesearch/howsearchworks/thestory/ (last visited Sept. 14, 2013).

^23. See http://www.google.com/insidesearch/howsearchworks/algorithms.html (last visited Sept. 14, 2013). PageRank is a Google algorithm which ranks the importance of a page as a function of the number of incoming links to that page. See PageRank, WIKIPEDIA (Sept. 14, 2013), available at en.wikipedia.org/wiki/PageRank#Description. The greater the number of incoming links to a page, the more important the page and thus the higher the ranking in the search results.

^24. See http://www.google.com/insidesearch/howsearchworks/thestory/index.html (last visited Sept. 14, 2013); see also http://www.google.com/insidesearch/howsearchworks/fighting-spam.html (last visited Sept. 14, 2013).

^25. See supra note 24.

^26. F.T.C. Still Expects to Resolve Google Antitrust Inquiry by Year’s End, New York Times Bits Blog (Sept. 19, 2012), available at http://bits.blogs.nytimes.com/2012/09/19/f-t-c-still-expects-to-resolve-google-antitrust-inquiry-by-years-end/?src=rechp.

^27. For a detailed discussion of "opinion" jurisprudence, see Robert D. Sack, Protection of Opinion under the First Amendment: Reflections on Alfred Hill, "Defamation and Privacy under the First Amendment", 100 Columbia L. Rev. 294 (2000), available at http://www.jstor.org/stable/1123560.

^28. 418 U.S. 323 (1974).

^29. See, e.g., Cianci v. N.T. Publ’g Co., 639 F.2d 54, 61 (2nd Cir. 1980). This passage "has become the opening salvo in all arguments for protection from defamation actions on the ground of opinion, even though the case did not remotely concern the question."

^30. Gertz, 418 U.S. at 339-340.

^31. Id. at 347.

^32. Id.

^33. Id. at 352.

^34. Blatty v. N.Y. Times Co., 42 Cal. 3d 1033 (1986) ("Blatty").

^35. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ("Milkovich").

^36. Id.

^37. Id. at 17-18.

^38. Id. at 18.

^39. Id. (citing Abrams v. United States, 250 U.S. 616, 630 (1919)).

^40. Id. (citing Cianci v. N.T. Publ’g Co., 639 F.2d 54, 62 n.10 (2nd Cir. 1980)).

^41. Id. at 20-21 (distinguishing between statements that can be reasonably interpreted as being ones of fact versus those that can be interpreted to be statements of "imaginative expression" or "rhetorical hyperbole").

^42. Blatty, 42 Cal.3d at 1049.

^43. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 762 (1976).

^44. 404 U.S. 898 (1971).

^45. 472 U.S. 749 (1985).

^46. Id. at 898.

^47. Id. at 898-99.

^48. Id. at 899.

^49. Id. at 898.

^50. Id. at 898-906 (Douglas, J., dissenting).

^51. Dun & Bradstreet II, 472 U.S. at 750-51.

^52. Id. at 752-53.

^53. Id. at 753.

^54. Id. at 758-62 & n.5.

^55. Id. at 758 n.5 (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978)).

^56. 461 U.S. 138 (1983).

^57. Id. at 147 (cited in Dun & Bradstreet II, 472 U.S. at 760).

^58. See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2552 (2013) (Breyer, J., concurring, joined by Kagan, J.) (noting that there are three levels of scrutiny under the First Amendment: strict (with near-automatic condemnation), rational (with implicitly near-automatic approval), and intermediate (with a proportionality analysis)); Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457, 473-75 & n.16 (1997) (applying rational-basis scrutiny to First Amendment challenge to compelled assessments of fruit growers, manufacturers, and handlers for generic advertising).

^59. Dun & Bradstreet II, 404 U.S. at 762 & n.8.

^60. Id. at 774 (Brennan, J., dissenting on behalf of himself and three other justices).

^61. Id. at 778-95 (dissenting op.). Interestingly, the dissent pointed out that it could be argued that the speech set out in these credit reports should be entitled to even greater protection than commercial advertising. Id. at 791-92.

^62. Id. at 795 (citing Ohralik, 436 U.S. at 460).

^63. Search Quality Rating Guidelines, Version 1.0, November 2, 2012, at 9, http://static.googleusercontent.com/external_content/untrusted_dlcp/www.google.com/en/us/intl/en_us/insidesearch/howsearchworks/assets/searchqualityevaluatorguidelines.pdf (last visited Sept. 14, 2013).

^64. Users want to accomplish a goal or engage in an activity, such as download software, play a game online, send flowers, find entertaining videos, etc. These are "do" queries: users want to do something.

^65. Users want to find information. These are "know" queries: users want to know something.

^66. Users want to navigate to a website or webpage. These are "go" queries: users want to go to a specific page.

^67. Adam Raff and Shivaun Raff , How Google’s Universal Search Mechanism Threatens Competition and Innovation on the Internet (February 23, 2010), available at http://www.foundem.co.uk/Foundem_Preferencing_Data_and_Arguments.pdf.

^68. James Temple, Google Places draws complaints from Yelp, others, S.F. Chron. (July 29, 2011), available at http://www.sfgate.com/business/article/Google-Places-draws-complaints-from-Yelp-others-2352896.php.

^69. Remove information from Google, https://support.google.com/websearch/troubleshooter/3111061 (last visited Sept. 14, 2013).

^70. Removal Policies, https://support.google.com/websearch/answer/2744324?hl=en (last visitedSept. 14, 2013).

^71. Va. Pharmacy Bd., 425 U.S. at 773 ("What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. Reserving other questions, we conclude that the answer to this one is in the negative." (emphasis added)). From this quote, it would appear that untruthful information can be suppressed without running afoul of the First Amendment.

^72. See e.g., FTC v. Algoma Lumber Co., 291 U.S. 67, 79-80 (1934) (finding a false advertisement to be unfair competition).

^73. United States v. Alvarez, 132 S. Ct. 2537, 2547-48 (2012) (plurality op.) (distinguishing false speech involving fraudulent economically related speech from lying about receiving military medals or asserting that all false speech is outside the purview of the First Amendment); see id. at 2554-55 (Breyer, J., concurring, joined by Kagan, J.) (noting that statutes prohibiting false statements have additional limitations that do not make the simple telling of a lie by itself actionable and contrasting those statutes with the one before the Court as lacking those limitations).

^74. Id.

^75. See e.g., Korematsu v. United States, 323 U.S. 214, 216 (1944).

^76. See, e.g., Madsen v. Women’s Health Center, 512 U.S. 753, 762-764 (1994).

^77. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 154 (1938); see also, e.g., Alvarez, 132 S. Ct. at 2552 (Breyer, J., joined by Kagan, J., concurring).

^78. Id.

^79. Va. Pharmacy Bd., 425 U.S. at 760-761.

^80. Id.

^81. 131 S. Ct. 2653 (2011).

^82. Id. at 2663.

^83. Id. at 2665.

^84. Id. (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). The citation to Giboney is important because picketers in Giboney were attempting peacefully to publicize truthful facts about a labor dispute as a means to force a manufacturer to agree to stop selling ice to nonunion peddlers. The Court held in Giboney that a course of conduct that is illegal can still be thwarted even if the conduct was in part initiated, evidenced, or carried out by means of language, spoken, written, or printed. 336 U.S. at 502.

^85. 131 S. Ct. at 2664.

^86. See, e.g., Andrew Tutt, Software Speech, 65 Stan. L. Rev. Online 73 (November 15, 2012), available at: http://www.stanfordlawreview.org/online/software-speech.

^87. See R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct.").

^88. 326 U.S. 1, 6-7, 19-20 (1945).

^89. 342 U.S. 143, 155-56 (1951).

^90. 394 U.S. 131, 135 (1969).

^91. 435 U.S. 679, 694-95, 697 (1978).

^92. 456 U.S. 556, 569-72 (1982).

^93. 493 U.S. 411, 430-32 (1990).

^94. 895 F.2d 352, 357-58, 371 (7th Cir. 1990).

^95. See, e.g., R.A.V., 505 U.S. at 384-89 (listing examples for the proposition that, even if speech is outside the purview of the First Amendment altogether, such as obscenity, or can be heavily regulated without running afoul of the First Amendment, such as regulating price advertising in one industry but not another, the Government cannot engage in viewpoint discrimination). But the proscription against viewpoint discrimination does not apply where the viewpoint in question has associated with the particular harms that the Government seeks to redress. See, e.g., Virginia v. Black, 538 U.S. 343, 361-63 (2003) (distinguishing R.A.V. and addressing a statute proscribing cross-burning with the intent to intimidate).

^96. 202 F.3d 573, 584 n.11 (2d Cir. 2000).

^97. Id.

^98. E.g., Gertz, 418 U.S. at 340.

^99. Volokh, supra note 18, at 6-7.

^100. Search King, Inc. v. Google Tech., Inc., No. 02-1457, 2003 U.S. Dist. LEXIS 27193, 2003 WL 21464568, (W.D. Okla. Jan. 13, 2003).

^101. In another case, Kinderstart.com, LLC v. Google, Inc., Case No. 06-2057 2007 U.S. Dist. LEXIS 22648, 2007-1 Trade Cas. (CCH) P75,643 (N.D. Ca. March 16, 2007), the plaintiff asserted that Google violated the plaintiff’s First Amendment rights.

^102. Search King, 2003 U.S. Dist. LEXIS 27193, 2003 WL 21464568.

^103. 175 F.3d 848 (10th Cir. 1999).

^104. Search King, supra n.97 (emphasis added).

^105. See supra note 52.

^106. See supra note 53.

^107. Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007).

^108. The Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).

^109. Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987).

^110. Assocs. & Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (9th Cir. 1971).