[Volokh's] argument, fundamentally, is that when Google assembles search results, it is communicating with its readers, and making selections about what to communicate. In that way, it is the same as a print newspaper that prioritizes news on its front page; a guidebook that selects local attractions to highlight; or an online news aggregator like the Drudge Report.
Yes, the decisions by those kinds of organizations are made by people, while Google’s search results are made by computers that apply a supersecret algorithm, but who created that algorithm? Mr. Volokh asks.
“All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included?” Mr. Volokh writes. He adds that “all these exercises of editorial judgment are fully protected by the First Amendment.”
Interestingly, these First Amendment protections as a speaker are unrelated to the so-called safe harbor protections that shield Web sites like Google from responsibility for content that is created by others.
In that sense, Mr. Volokh said, “Google was getting the best of both worlds,” meaning the company could argue one position — it is a connector — when it comes to safe harbor, but another position — it is a publisher — when it comes to anticompetitive issues. To Mr. Volokh they are not mutually exclusive....
May 21, 2012
Google hires lawprof blogger Eugene Volokh to make the argument that Google search results are protected speech.
There's no pending case, but Google anticipates litigation... and regulation: