Search engine results are a form of opinion; companies like Google offer information they think is most relevant to users. In addition, Google and other search engines are media enterprises, just as much as The New York Times or CNN, and therefore deserve the same free speech protections.
Though search results are selected and sorted according to a computerized algorithm, search engineers influence that algorithm, exercising a form of editorial judgment, says a new report commissioned by Google. From the outset, its purpose is clear: in drawing comparisons to newspapers and other media outlets, scholar Eugene Volokh makes the case against government intervention in search results with a compelling argument to protect the search giant’s First Amendment rights.
First Amendment Protection for Search Engine Search Results, released in mid-April, is the work of UCLA law professor Volokh. That this is Google’s position now might surprise some, as they’ve flip-flopped back and forth – think back to various cases over the last decade in which Google was forced to defend their search results as unbiased and free of manual influence.
“There is no human involvement or manipulation of results, which is why users have come to trust Google as a source of objective information untainted by paid placement.” – Google.com Technologypage (since removed), 2006
“We believe that the subjective judgment of any individual is, well … subjective, and information distilled by our algorithms from the vast amount of human knowledge encoded in the web pages and their links is better than individual subjectivity.” – Google Fellow Amit Singhal, 2008
“At Google we do not manually change search results… we have to find what weakness in the algorithm caused [an unsatisfactory] result and find a general solution to that, evaluate whether a general solution really works and if it’s better, and then launch a general solution. That makes the process slower, but it puts a lot more discipline on us and makes it more unbiased.” – Google VP for Search Quality Udi Manber, 2008
Google treads a thin line that seems to sway just a little from side to side, as circumstances dictate. They’ve had to argue the integrity of their algorithm while protecting their right to do with it as they please for years, more notably in the SearchKing and Kinderstart cases. Can a search algorithm be completely objective while claiming First Amendment protection on the grounds of their use of editorial judgment?
It’s an age-old question and one that won’t be solved by the end of this article. It will, however, be an interesting situation to watch, especially as the commissioning of the paper may indicate Google is preparing for another round of antitrust defense.
The paper’s comparison to The New York Times and other media outlets is a particularly interesting one. At a newspaper, content is not included unless it passes a very human editorial process – there is one editor-in-chief and the buck stops there.
Search engines index all content they can find through crawling the web; the human editorial process is not in selection, but in ranking and sorting. There is a secondary human editorial process in the webspam team, who can choose to remove a website from the index entirely if it falls outside of their guidelines (and this comes to their attention). In this sense, Google’s is a reverse editorial process.
Like The New York Times, Google is an entity, though the extent to which humans have a hand in actually selecting included material is quite different. Do you think Google should be protected by the same First Amendment rights as media outlets? Let us know in the comments.
Volokh First Amendment Paper Copy