First Amendment scholars offer a more formidable critique. If Google were to characterize its search results as a form (rather than a fi nder) of media, it could invoke a First Amendment right to present infor-mation without government interference.81 Google has already won a few cases on this ground, defeating plaintiffs who accused it of treating them unfairly under state laws.82 For example, when a com-pany called SearchKing claimed in an Oklahoma court in 2003 that it should have appeared more prominently in queries for “Search-King,” the judge fl atly rejected its arguments.83 Since “there is no
conceivable way to prove that the relative signifi cance assigned to a given web site is false,” the judge ruled that SearchKing could never demonstrate that it had been wrongly ranked by Google.84
Google brandished the First Amendment again in 2012, hiring two attorneys to argue that antitrust law should not apply to its search rankings. Noting that the First Amendment had even barred a lawsuit against an inaccurate mushroom encyclopedia that led an unfortunate person to eat poisonous fungi, Google argued that it had a right to “speak” any search results, for what ever reason. But antitrust law has been applied to the media in the United States—
indeed, the Supreme Court has even stated that free expression and competition law are mutually reinforcing. Consider the following quote from Associated Press v. United States (1945), in which the news-paper association argued that it should be immune from certain as-pects of competition law:
Surely a command that the government itself shall not impede the free fl ow of ideas does not afford non- governmental combi-nations a refuge if they impose restraints upon that constitu-tionally guaranteed freedom. . . . The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.85
Six years later, the Supreme Court reaffi rmed that position in Lo-rain Journal v. United States86 In Lorain Journal, a newspaper refused to deal with those who advertised on its new competitor, a radio station. The newspaper claimed that it had an unfettered First Amendment right to choose its own advertisers, but the Court dis-agreed. Media companies can communicate their messages without trampling on the Sherman Act.
How relevant is a mid- twentieth century pre ce dent to the Inter-net landscape of today? Deliberately demoting search results is akin to a Lorain- style refusal to deal, since a signifi cant loss of ranking amounts to a death sentence for many would- be competi-tors of Google. Google counters that Lorain is inapplicable to the search engine context because the newspaper in that case “was not excluding advertisements . . . in the exercise of some editorial
judgment . . . [but rather] excluding advertisements solely because the advertisers— whatever the content of their ads— were also ad-vertising on a competing radio station.”87 But several disputes follow that Lorain pattern, as complainants say Google’s decisions are made only according to an economic, and not an editorial, logic. Foun-dem, for instance, claimed that Google was primarily (and perhaps exclusively) motivated to exclude it from search results in order to clear space for Google Shopping.88 The search giant can only de-clare Lorain Journal inapposite by assuming what needs to be proven; namely, that there is no distinct anticompetitive conduct motivating the (admittedly) expressive display of search results. The First Amendment is not a “get out of jail free card” for any business with expressive dimensions.89 And it would be deeply ironic if the First Amendment could be deployed to limit public understanding of critical Internet decision making.90
More forward- thinking intermediaries have recognized as much, and relinquished First Amendment defenses in the face of princi-pled opposition to their ranking and rating schemes. Consider health insurers who have rated doctors on their websites, while acting as a small- scale physician search engine for their customers.91 When the insurers failed to disclose the basis of the rating, many physi-cians sued, charging it was an unfair and deceptive practice. Some found that “excellent” rankings depended on little more than keep-ing insurers’ cost low. The New York Attorney General’s Offi ce ex-tracted a detailed concession from insurers promising new substan-tive bases for rankings, transparent databases, and opportunities for doctors to correct misleading information.92 Insurers could have parleyed a First Amendment defense here, but opted instead to work together with the state (and the community they were ranking and rating) to produce a fairer pro cess.
The health insurers are, of course, still free to make public decla-rations about any given physician. The key issue here is their taking on a role as advisers to their customers, and their use of inadequate data to discriminate among physicians. Just as no one has a First Amendment right to fi re an employee for appearing to be sick ac-cording to a database and algorithms, the First Amendment should not limit the state’s ability to assure that intermediaries are acting as honest brokers for their customers and users.
Rather than follow the health insurers’ more constructive ap-proach, Google has relied on pre ce dents pioneered by bond raters, who characterized their ratings (AAA, AA, and so on) as opinions.
Their litigation position boils down to a familiar disclaimer of re-sponsibility: “Don’t blame us if securities we rated AAA tanked— we were only offering an opinion.”93 Leading First Amendment attor-ney Floyd Abrams has revived those cases, brandishing them as a shield to protect credit rating agencies accused of wrongdoing dur-ing the subprime debacle. But courts are knockdur-ing holes in this constitutional armor, reasoning that free expression rights can’t grow so large as to excuse fraud. If an opinion implies certain facts (such as a careful verifi cation of creditworthiness) which in fact never occurred, those implications can be proved false.94 Moreover, when a rating agency only issues a rating to a small group of investors, it’s far from acting as an ordinary media outlet (which communicates to a broader public).95 Rather, it’s closer to an adviser, like a doctor, attorney, or accountant. And those professionals cannot simply dis-claim their responsibilities to clients (or avoid malpractice lawsuits) by asserting that they are only offering opinions.
Such rulings could undermine the First Amendment protection of a Google, Apple, or Amazon, too. All those companies either now employ (or plan to deploy) some degree of personalization in their rankings of websites, apps, and products. As these algorithmic au-thorities get to know us better, they cultivate our business by learn-ing more about what pleases and displeases us, and how to maintain our interest.96 At some point, personalization becomes a relation-ship mutual enough to trigger the classic duties of professional ad-visers. If a doctor sickened a patient by recommending a medicine whose manufacturer granted him a kickback, no court would dis-miss a malpractice case based on the doctor’s putative right to say what ever he wanted about the proper way to treat an ailment. Simi-larly, intermediaries need to take on some responsibility for ordering Internet choices responsibly— if not to ranked and rated entities, then at least to their own users.97