A defining feature of the marketplace of ideas today is that free speech is increasingly dependent upon a handful of search engines, led by Google. And that’s kind of scary. On May 29, 2014, I wrote an article noting that Google had omitted age from its plan to boost diversity in its workforce. I’ve written a couple of articles about the fact that Google (like many Silicon Valley companies) appears to engage in blatant age discrimination with impunity. On the day I wrote the article my blog received almost a thousand impressions from Google. This means pages from my site appeared in Google search results almost a thousand times. A week later, my blog was receiving fewer than 100 Google impressions per day.
The chart showing the decline in Google impressions on my blog since May 29 looks like the flume at a water park when standing at the top or a graph of the economy right after the Great Recession. My Google search traffic ranged from 500 to 1,250 impressions per day for the month preceding May 29; it has been below 100 impressions ever since (with the exception of one day when there were 228 impressions).
The link in the decline in search traffic on my blog may be purely coincidental. And I realize that Google is basically a mathematical formula, an algorithm. However, clearly Google can be tweaked. For example, European courts have recognized an individual’s right to be “forgotten” and require Google to omit certain information from search engine traffic. What if Google was hyper-sensitive and was intentionally omitting my blog from searches? I wondered whether I have any legal right to demand that Google play fair?
The answer appears to be no.
A federal court judge earlier this year dismissed a lawsuit Jian Zhanvg et al v. Baidu.Com Inc., brought by a group of New York residents who advocate for increased democracy in China against one of China’s largest companies, Baidu, Inc. The plaintiffs said Baidu, which operates an Internet search engine akin to Google, unlawfully blocks from its U.S. search results articles and other information on “the Democracy movement in China” and related topics.
Judge Jesse M. Freeman ruled that the First Amendment of the U.S. Constitution protects as speech the results produced by an Internet search engine. “Accordingly,” he writes, “allowing Plaintiffs to sue Baidu for what are in essence editorial judgments about which political ideas to promote would run afoul of the First Amendment.
He granted Baidu’s motion to dismiss the plaintiff’s case on a pre-trial motion, before it could reach a jury.
Judge Frereman rejected the concept that search engines are merely a platform that delivers content and therefore is not deserving of the heightened protection of free speech of a newspaper.
Hw cites a U.S. Supreme Court ruling in Miami Herald Publishing Co. v. Tomillo that held unconstitutional a Florida statute requiring newspapers to provide political candidates with a right of reply to editorials critical of them. The U.S. Supreme Court said the Florida law “imposed an impermissible content-based burden on newspaper speech.”
Thus, Judge Freeman extrapolated, “he government may not interfere with the editorial judgments of private speakers on issues of public concerns – that is, it may not tell a private speaker what to include or not to include in speech about matters of public concern.” He said search engines make editorial judgments about what information to include and exclude all the time much like newspapers.
Judge Freeman states that search engines “lack the physical power to silence anyone’s voices” but can only control whether it will help users to find information. If users are dissatisfied, Judge Freeman states, they can turn to Microsoft’s Bing or Yahoo! Search.
According to Judge Freeman, only two other courts have considered the relationship between search engines and free speech and both of the courts agreed that search engines are entitled to free speech protection.
Using Judge Freeman’s reasoning, it would seem that Google can omit whatever it likes from its search engine, including blogs and articles critical of Google.