by Paul Alan Levy
Suppose a company were to design a formula to rank other companies with respect to their overall desirability to potential customers. After creating a complicated formula, the company would accumulate a database of factual information, relying largely on information gathered from the other companies, but also relying on inputs from other sources; each of these inputs would be quantified using a proprietary method; finally, the company would plug all of this quantitative data into a computer that would crunch the numbers and publish a ranking.
Suppose as well that this ranking gains an important reputation in the marketplace. So if you have your own business, your company’s position on the resulting ranking list, compared to its rivals, can mean differences of millions of dollars in new business; ranking can, indeed, make or break your business.
If you don’t like where you rank, can you sue the creator of the ranking for libel? Can the ranking creator defend itself on the ground that the ranking is, after all, an opinion, and opinions are constitutionally protected because “Under the First Amendment there is no such thing as a false idea.” Or does the First Amendment not apply at all because the ranking formula was applied by a computer, and computers don’t have free speech rights?
As the alumnus of a college that proudly rejects the proposition that the quality of educational institutions can be “measured by a series of data points,” I will take any opportunity to denigrate the Useless News and World Distort rankings of colleges, law schools and institutions of higher education. But it would never have occurred to me to offer a “speech by computer” theory as a basis for denying that the ranking is speech or that it is protected opinion. Maybe a stupid opinion, but that is not a basis for shutting the raters down, or enjoining them to change their rating criteria. Indeed, this theory seems to me absurd — it is not the computers that have free speech rights, any more than printing presses have free speech rights. It is the media companies that own the printing presses that have free speech rights, and by the same token it is the people and companies who program the computers and publish the results of their calculations that enjoy protection under the First Amendment. But the proposition that computers don’t have free speech rights underlies a recent op-ed by Columbia University Law School professor Timothy Wu, who argues that Google’s search ranking results should be denied First Amendment protection.
First Amendment Protection for Rankings
Courts have repeatedly held systems of rankings of this sort are constitutionally protected opinion, and properly so. As a result, disgruntled businesses have lost when suing such well-known rankers as the Better Business Bureau (354 S.W.3d 234 (Mo.App. 2011)) and Moody’s (499 F.3d 520, 529 (6th Cir.2007)), as well as against niche operators such as Avvo, which ranks lawyers (525 F.Supp.2d 1249, 1251–53 (W.D.Wa.2007)) and Aviation Research Group, which rates aviation safety (416 F.3d 864, 868–71 (8th Cir.2005)).
Google, too, has taken advantage of the opinion defense to protect itself against disgruntled companies that don’t like how the search engine works, and properly so. The response by Google's search engine to any given search query represents Google's opinion about which of the millions and millions of web pages are relevant to the search query, and which are most likely to be of interest to the search engine users. Given the vastness of the Internet, this is a crucial function for consumers, and it would be disastrous for consumers if search engine results could be affected by the threat of litigation by those who are disappointed by how high or low pages about themselves or their critics or their competitors appeared in the search results.
Courts have rejected claims for libel and similar claims by Kinderstart (2007 WL 831806 (N.D.Cal. 2007)) and Search King 2003 WL 21464568 (W.D.Okla.2003)). Wu’s concern is not libel so much as a recent paper co-authored by Eugene Volokh, not in his academic capacity but an advocate retained by Google as part of its public relations offensive against antitrust and other scrutiny from the Department of Justice and the FTC. Wu never mentions Volokh, but iIt is Volokh's agenda that is plainly on his mind, as he suggests that if search engine results are speech, Google will gain immunity from antitrust scrutiny.
Even Speakers Can Violate the Antitrust Laws
But the fact that Google "speaks" through its search engine results does not protect it from all regulation, any more than the fact that Rupert Murdoch's products also speak. When the CEO of General Motors says to the CEO of Ford, "Let's fix prices," the fact that this is "speech" does not bar the application of antitrust law. If, as some hypothesize, Google takes advantage of its market power in search to give its other products an advantage in its search rankings — or if it discloses its highly proprietary algorithm to the staff of subsidiaries that offer commercial products, so that they can game the rankings system in a way that their competitors cannot — the First Amendment would not shield those abuses of Google’s market power in the search arena from antitrust scrutiny. The main weakness in the Volokh paper, to my mind, was that its very careful analysis of Google's First Amendment rights was not matched with an equally careful application of antitrust law to specific facts about Google. Instead, it measured the First Amendment only against generalities, rather than discussing how the First Amendment would apply to the concrete concerns represented by these factual scenarios, which are certainly a proper subject for investigation by the relevant consumer protection authorities.
Are Google's Organic Search Results Commercial Speech?
Wu also denigrates the First Amendment protection for Google’s search rankings by suggesting that they are commercial speech, which enjoys more limited First Amendment protection. But the fact that Google’s search rankings are a product supported by advertising no more makes them commercial speech than the fact that the US News and World Report rankings appear in a magazine that is sold and carries advertising.
And yet — if an investigation establishes that Google jiggers the rankings so that its own commercial products show up higher, then maybe that would make out a claim that this aspect of the rankings are commercial speech. To bring the comparison back to educational rankings, perhaps a tenable claim of false advertising might be brought against Thomas Cooley Law School for fixing its own ranking system so that it appears to be second only to Harvard, in that the rankings are offered as a promotional tool.
Google has historically portrayed its organic rankings as being based on an unbiased algorithm that is calculated to return the results of greatest interest to search engine users. If it turned out that this is a false claim, in that Google puts its own products first, then perhaps there would be a claim for false advertising along with the antitrust concern.
Do these theories apply to Google? We'll see what the investigators come up with. I, for one, am glad that they are looking at this question. But I assume they will not be relying on the "speech by computer" theory (nicely deconstructed here) to justify their recommendations.
Thanks to one public and one private commenter for pointing out that Wu expressly mentions Volokh. It was kind of one of them to attribute my error to version control; in fact, it was vision control.