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.
February 27, 2007 at 12:19 pm
Posted in: Google & Search Engines
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Responses (8)
Maryland Conservatarian - February 27, 2007 at 4:06 pm
“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.”
yeah – limiting such frivolous claims AND limiting more regulation keeps me up at night too. How else to keep law as a growth industry.
David - February 27, 2007 at 7:31 pm
Interesting, thought-provoking post. I wonder, however, if Google can have it both ways here.
For purposes of advertising, Google is one of any number of web outlets. If Google refuses his ad, he has many, many other places to advertise. So, absent some other concern (perhaps Google allows him to target a particular market much more effectively than any other site?), the analogy to newspapers for the purposes of adverstising doesn’t seem so far off.
No one would argue that Google is the dominant search engine. So, when Google is viewed qua search engine, rather than advertisment outlet, it should be subject to greater scrutiny.
Along those lines, the conduit argument starts to break down when Google tweaks the search alogithm to specificially eliminate certain search results, such as the George Bush result for “miserable failure” search terms. Is Google permitted to make editorial decisions of that sort and still maintain that it’s just a passive conduit? I’m not so sure.
But on the other hand, can the law really step in and make editorial decisions about what sort of code is acceptible? I don’t think there’s an easy answer.
Haninah - February 28, 2007 at 10:14 am
I agree with David – it seems to me that there’s nothing inconsistent in claiming not to be a media outlet with regard to search results while claiming to be a media outlet with regard to advertising. A Google results page contains two distinct types of content: results and ads. Saying that different types of laws should govern these two sets of content seems no less reasonable to me than saying that different types of law govern what goes on inside an apartment building and what goes on on the billboard on the rooftop.
In fact, in this case I think the phone directory analogy is apt: with regard to the utility-like listing of all public phone numbers in a certain geographic area, a phone directory can be made subject to those regulations relevant to a public utility (or, conversely, can claim the same lack of responsibility for content as a utility); with regard to the advertising space it sells on its pages, however, the phone directory both enjoys the First Amendment protections and carries the social responsibilities of any private advetiser.
Frank - February 28, 2007 at 10:39 am
I like the distinction that both David and Haninah draw regarding Google qua search engine, and qua advertiser. David’s point about manipulation is important, too, re the conduit point.
I think the key point for me is only that the First Amendment should not be allowed to short circuit debate on the points they (and I) raise. One can easily imagine courts using Tornillo to strike down a statute that, say, makes newspapers reveal to some government body (even a private one) information about how they decide what is news. But it would be very troubling if that sort of immunity precluded any efforts to go “behind the curtain” at the search engine to determine if, say, manipulation of results or other untoward behavior occurred. The newspaper and the search engine serve very different functions.
Chris Langdon - March 1, 2007 at 11:49 am
Let’s look at the moral questions in my case, Langdon v. Google, Microsoft and Yahoo. Doesn’t it bother anyone that the Big Three search engines won’t allow advertisements in AMERICA that are critical of the Communist Chinese govt.? They allow ads for Hitlers’ “Mein Kampf” and Mao’s “Little Red Book.” They have sold their souls.
The court did allow my claims against Google, for breach of contract, to continue.
My website, http://www.ncjusticefraud.com, exposes fraud on the US Supreme Court by N.C. Att. Gen. Roy Cooper. Google removed that site from its search results for “Roy Cooper,” and “Attorney Genral Roy Cooper,” after I attempted to advertise it, while Microsoft ranked it highly in its search results. After I filed suit, Google re-instated my website. However, it has recently deleted it from its 638 search results for “Roy Cooper,” while Yahoo and Microsoft rank it in the top 20. You can get a free copy of “Mein Kampf” in Google’s search results. My site does not support mass murder, as Mao and Hitler did. My site has been in existence for 16 months, without any objection from Roy Cooper, who has not asked for a retraction, nor has he he sued me for libel. Google censored my site becuase Google recently negotiated $260 million in economic incentives to locate a new facility in N.C.
Google lies when it says that its search results are “objective” and the result of a computer algorithm, without human intervention.
The manipulation of my NC site in Google’s search results proves that. I thought lying was evil, right Brin and Page?
Chris Langdon, qiology@aol.com
Chris Langdon - March 1, 2007 at 11:58 am
P.S. The analogy between internet search engines and the newspapers is bogus. There are thousands of newspapers, only threee main internet search engines. Half of all internet searches are done on Google. Furthermore, no newspaper, TV station, or radio station will allow me to advertise my website, http://www.ncjusticefraud.com, in N.C. They won’t even report my story, although my website has been in existence for 16 months, without objection from N.C. Att. Gen. Roy Cooper, the sites “target.”
Roy Cooper is too powerful and the papers are too supportive of the Democratic Party. Nifong;s corruption is commonplace in N.C., that’s why he thought he could get away with it.
Chris Langdon, qiology@aol.com
Stew Pidasso - January 30, 2008 at 1:19 pm
Chris Langdon,
Stop crying. Google doesn’t owe you anything. They are not blocking you. I just searched Google for “Roy Cooper fraud,” and your site was the second in the results list.
There’s more than one Roy Cooper, and there’s more than one site discussing your Roy Cooper. There’s no reason to expect a search engine to list your site every time someone searches for “Roy Cooper.” Indeed, that’s the opposite of what we should expect from a quality search engine.
As anyone can tell you, the search terms have to be just right for Google to point you where you want to go. Go ahead: click my name and see for yourself. You’re not being censored.
Paul Robinson - January 31, 2008 at 1:37 am
The only electric company in an area has the right if it chooses, to sell ads to include in its bill envelopes. It can choose on any grounds it wants including to exclude some advertisers for any reason or for frivolous or capricious reasons (as long as it does not violate a protected classification, such as refusing to carry someone’s ads because of their skin color.) Despite the fact its customers have no choice, it has no obligation to carry viewpoints it does not agree with. In fact, a U.S. Supreme Court ruling held that a state requirement for a licensed utility to give space a few times a year for an opposing viewpoint (as long as the group paid the utility the extra cost the group caused them by adding the bill insert) was found to be unconstitutional as it violated the First Amendment right to not have to include speech you don’t agree with in with your own speech.
The same rule applies to beer manufacturers, soft drink bottlers or anyone else, they can sell ads if they choose, and absent illegal discrimination they can arbitrarily refuse to carry some content. A telephone company (the incumbent, anyway) is required to provide service to everyone who can pay, but they have the right to refuse certain ads in the yellow pages.
Now, it is conceivably possible that a privilege can be granted in exchange for being required to accept certain types of ads or content, such as if ISP immunity were conditioned on net neutrality, or some other reason, then it’s a different matter.
For example, broadcast stations do not have to run commercials for political candidates for federal office. But once they do, by law they are required to accept all ads from any legitimate candidate and cannot refuse to run the ad. As a corollary, the station is treated as a common carrier when it runs the ad, it has complete immunity for the content. Now, this requirement can be justified because broadcast stations have to be licensed. An equivalent requirement placed on newspapers has been struck down as unconstitutional.
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