Is Google Like a Newpaper? Cable Network? Phonebook?
posted by Frank Pasquale
Google has been fighting a number of lawsuits challenging its placement of websites in search results. Eric Goldman covers the latest development in the saga, a big win for search engines in Langdon v. Google. Langdon claimed that Google had a duty to carry his ads, which charged US bureaucrats with corruption and China with committing atrocities. The district court dismissed the claim, along the lines Goldman predicted it would months ago:
Recall that from Miami Herald v. Tornillo, a statutory must-carry rule applied to newspapers violated the constitutional freedom of the press. Given the very specific justifications for tighter regulation of broadcasting, and that those bases have been held inapplicable to the Internet (see, e.g., Reno v. ACLU), I think (for these purposes) that search engines are more appropriately analogized to newspapers instead of broadcasters. Accordingly, I can’t see how any judge could constitutionally order “must carry” relief here.
I agree with Goldman that the claims in the lawsuit here are not particularly compelling. But neither is the newspaper analogy. The Miami Herald was merely one of thousands of US newspapers. But Google is, beyond a doubt, the dominant US & world search engine, and it is only growing in the US. Given the weakness of the analogy, isn’t the judge using a constitutional sledgehammer to knock out a vexatious fly? I worry that cases like Langdon are not merely going to end frivolous business tort claims, but also may serve as roadblocks to substantive regulation.
For some time, Google and other search engines have been trying to have it both ways when they confront internet complaints. For the purposes of copyright and defamation suits, they claim “We’re not a media company–we’re just a conduit. Don’t come to us if we highly rank a site you find objectionable–we’re just the infrastructure. Go to the source.” But when they hide behind the shield of Tornillo in these rankings cases, they openly claim to be just like a media outlet. They allege that any effort to regulate would violate their editorial discretion–a discretion they claim is well-nigh impossible in the case of eliminating defamatory or infringement-inducing websites from highly ranked results. (Although I have noted that they’re starting to buy some filters for YouTube.)
I’m willing to go along with search engine’s initial self-characterization–that they are merely the “pipes” or “infrastructure” arranging information, and not information-providers themselves. But if that is the case, it seems that the relevant precedent for Langdon is Turner Broadcasting. There, Justice Kennedy upheld must-carry provisions for a cable network as constitutional, reasoning that they “further important governmental interests” and “do not burden substantially more speech than necessary to further those interests.” 520 U.S. 180, 185. Carrying three mandatory channels was a small burden to the cable companies, and the burden was outweighed by the furthering of government interests in “(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming.”
We can easily think of a host of parallel benefits from some basic groundrules of transparency (and perhaps must-carry rules) in the search engine context. And we should expect them to become a hotter issue, as U.S. politicians disgruntled with censorship of results in countries like China might require that Google disclose how sites are blocked on Google.cn. Moreover, even if we go beyond transparency and into must-carry, I’m not yet convinced of how burdensome such a requirement would be. Such requirements didn’t appear to hurt phonebooks, one recent example of an all-purpose index that some public utility commissions forced to carry all regional phone numbers.
I’m not saying that Langdon was right, or that Google had to sell him adspace in prime locations. All that I’m arguing is that the First Amendment should not prevent some future legislature from requiring search engines to disclose if they’ve deliberately deleted a website from their index. And if search engines truly want to be characterized as newspapers/media companies, they might have to pay a price by facing the same infringement liability such sites would face if they served up copyrighted content in an unauthorized manner.
Photo Credit: FoneBook Phriction.