By Lauren Murphree, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
Do online search engine results constitute protected speech under the First Amendment? This discussion is beginning to develop in academic circles and was informed recently by competing scholarly papers. As federal antitrust officials consider the implications of how and why results are returned in the manner they are, the arguments being made on both sides of the issue are worth considering.
Recently, opposing scholarly papers—one by Kurt Wimmer, the other by Eugene Volokh and Donald M. Falk—were published to influence decision makers both in regulatory agencies and in the court of public opinion. The issue centers on whether search results deserve constitutional protections as speech, and if so, whether they deserve the full shield of the First Amendment, or whether they are commercial speech subject to reduced protections.
Volokh and Falk argue for full constitutional protection under the First Amendment based on the premise that search engines are “speakers.” While the results are generated on a computer screen, they are ultimately opinions formulated by humans who exercise their judgment in building particular algorithms that produce particular results. They argue that computer-generated search results, (especially those on religious, scientific, or political topics that receive heightened constitutional protection) are no different from guidebook entries, encyclopedia entries, or editorial judgments in a newspaper—all of which enjoy First Amendment protections. In fact, the few times the issue has come up at the district court level, courts have upheld search engines’ First Amendment rights. The court decisions were based in part on Supreme Court precedent that the individual right to free speech includes “the decision of both what to say and what not to say.”
Wimmer, on the other hand, maintains that if search results are speech at all, they don’t merit the type of elevated protection that opinion or political speech merit under the First Amendment. Wimmer points to the Supreme Court’s holding in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York that misleading commercial speech is entirely outside the scope of the First Amendment. The High Court has also held that federal regulations may prohibit businesses from making statements that “though literally true, are potentially deceptive” and that misleading speech can be the basis of an antitrust violation. In the case of search results, some critics allege that search engines hold themselves out to be objective, but may in fact manipulate results in an anti-competitive nature.
The debate is an interesting one, as its implications will certainly be far-reaching as more and more people turn to search engines as a gateway to the internet. And for those thinking it’s a stretch to extend constitutional protections to computers, consider the Court’s recent extensions of free speech protections: to corporation’s campaign contributions in Citizens United v. Federal Election Commission, to video games in Brown v. Entertainment Merchants Association, and even to lies about receiving military decorations in United States v. Alvarez, decided just this term. Should regulations be imposed on search engine results, federal regulators will be required to show a compelling state interest in the regulations, and that the regulations imposed support that interest. The issue is a complex one, and as the arguments develop it appears inevitable that we will see them tested in court sooner rather than later.