Update. The controlling legal precedent seems to be the following quote from the Supreme Court Decision:

“To determine whether an actor’s conduct possesses “sufficient communicative elements to bring the First Amendment into play,” the Supreme Court has asked whether “[a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it.””

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)).

When Google eliminates climate realist or conservative websites from its top search results, the “message” is certainly not understood by those who view it. Further, this is the main purpose of this conduct – to suppress speech without other people understanding that. Google also flatly denies that it conveys any message in its search results. It claims impartiality and attempts to provide “the most useful and relevant” search results. Thus, intentional distortion of the search results by Google does not even bring the First Amendment into play. It is really fraud, not speech.

Google Search is a commercial service that Google provides to its users. Google must provide this service in good faith and in accordance with other applicable laws. Google search is service, not “speech.”

Google Search Users are Paying Customers

Google search users are paying Google customers. Each user pays for the provided service by giving Google data, usually including his or her private information, which Google then uses outside the transactions with this user. Users also pay for bandwidth and their computers that are used to transmit this data to Google and to transmit back and render Google ads. Finally, the users pay by purchasing goods and services advertised on Google.

Other Prior Cases are Irrelevant

Less than half a dozen cases that challenged Google search ranking have been brought by dissatisfied website owners, and decided in favor of Google. In some of them, courts declared Google search results and ranking as speech under The First Amendment. These cases are not relevant. Website owners are not Google customers and Google owed them nothing.

Google search results are a service, not speech. This service is provided to the users, so the matter could not be adjudicated in lawsuits between website owners and Google. In any case, Google search has been developing so fast that a decision based on a two years old evidence is not relevant for today.

Service, Not Speech

Google search is advertised by Google as a service that aims to provide customers with the most relevant and useful results or even answers (see Google Representations below). Google always publicly denied exercise of editorial discretion (with possible exception of its courtroom filings). Google always represented its search results as an output of calculations performed by many computers using complex algorithms. Computer calculations are expected to be accurate. This knowledge, combined with the representations by Google, and that Google did not intentionally slant results on most non-political topics, resulted in customers placing an unusually high trust in Google search results. According to a 2012 Pew Research study, “66% of search engine users say search engines are a fair and unbiased source of information.”

Although it’s possible to exercise free speech through a customized search result, Google elected not to do that and to instead provide a service. And it has likely provided it in good faith for a long time, since Google’s founding until a time between 2011 and 2015 when it changed course and started rigging search results. Based on Google representations and actions, the customers expected a service backed by all the legal protections that customers of big corporations ordinarily have. In fact, many Google customers rely on Google results (including their ordering) in their decisions about insurance, investment, employment, and hiring, more than they rely on written representations from insurance companies, corporate disclosures, and agreements.

Google represents its search results as the outcome of computer calculations performed without human intervention. Computers do not have free speech rights. Computer-generated results naturally evoke more trust than human speech or writing. This is because computer results are expected to be more accurate than human decisions and because rigging computer results is typically a more serious violation than making a false statement. For example, a customer may be skeptical if an auto mechanic suggests car repairs that the car might not need. But, when an auto mechanic presents results from a computerized test, few customers would doubt the results. We understand that a shop rigging a computerized test would eventually be caught and punished for defrauding customers, and its owners possibly indicted for felony. Google search fraud was allowed by the Obama administration for usual for that administration reasons. Google search fraud also flied above the radar because of its incredible boldness.

Breach of Good Faith

There is sufficient evidence that Google intentionally slants its search results in favor of the Democrat Party and the Left. Possible motives include the following:

Yielding to pressures from foreign governments and political parties, especially in the EU. More than half of Google’s revenue comes from outside of the U.S.

A “quid pro quo” deal with the Obama administration in which the latter looks away from Google’s violations of anti-trust and other laws; the deal might have included the harsh treatment of Google competitors and potential competitors, including AT&T and companies outside the computer industry .

Crooked collusion with Hillary Clinton and/or the Democrat Party; Eric Schmidt was a high-profile supporter of Democrats since at least 2008 and a close advisor of Hillary Clinton in the 2016 elections

Collusion with other parties, such as WWF. Google’s Senior Vice President Urs Holze is also a Vice Chair and Board Member of the World Wildlife Fund.

Interests of Google insiders, associated with Al Gore. Google Board Member John Doerr is Al Gore’s buddy, and both are Partners in the VC firm Kleiner Perkins Caufield & Byers (KPCB).



Service, Like Medical Treatment or Auto Service

Google search results are a service, just like a diagnosis given by a doctor, or results of a test performed by an auto mechanic. Nobody would claim that the First Amendment protection applies when an auto mechanic intentionally gives his customer false test results to make more money, or because he dislikes a certain car brand or the customer. On the other hand, a theater performer can say anything he wants about cars. Google had the choice to position its search as a service or as speech. Google has chosen to position its search as a service and to grab almost the entire search market, and cannot claim it to be “speech”. If it had positioned it as subjective speech it would have to compete with similarly positioned search providers having other political views and with providers of search as service, and would be a tiny fraction of its current self.

Remarks

Google is a monopoly that controls more than 60% of the U.S. search market. Furthermore, it might be in collusion with Microsoft, which owns Bing, which powers Yahoo Search. Together, they control more than 90% of the market. Collusion is formalized in the “code of conduct” and related documents that Google, Facebook, Twitter, and Microsoft signed with the European Union. Google and Microsoft might have also colluded together with the Obama administration, Democratic party, and/or foreign parties and governments to slant search results in their favor. Collusion might have been formed de-facto, if the Bing team used to compare its search results and to adjust them to be more similar to Google, or if Google ranking bias found its way into Bing ranking in other ways.

Polls

Pew Research, 2012 study:

“ 73% of search engine users say that most or all the information they find as they use search engines is accurate and trustworthy

66% of search engine users say search engines are a fair and unbiased source of information”

“Asked which search engine they use most often, 83% of search users say Google.”

http://www.pewinternet.org/2012/03/09/search-engine-use-2012/

“Asked how much of the information they get in search results is accurate or trustworthy, 28% say all or almost all and another 45% say most.“

http://www.pewinternet.org/2012/03/09/main-findings-11/

“Before writing this blog post, I conducted an informal survey of people with whom I interact regularly, not colleagues or techy people, just your average computer user. All of the people with whom I spoke about this topic—100-percent of them—said they trusted Google. Further, all of them said that they didn’t know why.” – Jerod Karam, Netvantage Marketing

http://netvantagemarketing.com/blog/trust-search-engines/

2016 poll shows receding trust to Google search:

http://www.dailywire.com/news/19572/poll-are-google-searches-biased-james-barrett

Google Representations

“From the beginning, our approach to search has been to provide the most relevant answers and results to our users, and it would undermine people’s trust in our results, and our company, if we were to change course,” a Google spokeswoman said in an email to the Journal, denying the allegation of bias.

http://www.newsmax.com/Newsfront/study-google-search-results-liberal/2016/11/22/id/760200/

Google: “We regularly change our search algorithms and make over 500 changes a year to help our users get the information they want. We created search for users…”

https://www.engadget.com/2015/03/20/ftc-report-google-search-bias/

From testimony of Eric Schmidt, Executive Chairman, Google Inc. before the Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, September 21, 2011:

“Despite the major innovations in search since 1998, the underlying principles of how search works remain the same. A search engine’s software “crawls” pages available on the Internet and catalogues them. When a consumer enters search terms, those terms are processed by the search engine’s mathematical algorithms, which determine the probability that any given webpage will be responsive to the search. The user then receives results that are rank-ordered based on the search engine’s judgment of the likelihood that each result matches what the user was seeking in entering the search terms. This process necessarily depends on multiple variables and constant refinement.

From the start, Google has constantly refined its search algorithm, which now considers over 200 factors in assessing site quality and relevance. When a user types a query into Google Search, Google’s proprietary technology analyzes these signals to provide a determination as to what the user is looking for. Google uses this ever-improving technology to organize information, rank sites, and present results to users. Google’s search results are ultimately a scientific opinion as to what information users will find most useful.

In keeping with our focus on quality and delivering the most relevant results for consumers, Google is constantly experimenting with new innovations in presenting information. Potential refinements to the algorithm go through a rigorous testing process, from conception to initial testing in Google’s internal “sandbox” to focused testing to final approval. Consumer testing is key to the algorithm refining process, and Google uses both human reviewers and samples of real search traffic in order to measure whether a proposed algorithm change improves the user experience or not.“

https://searchengineland.com/figz/wp-content/seloads/2011/09/Eric-Schmidt-Testimony.pdf

Note, Eric Schmidt mentions “scientific opinion,” not any opinion. But this testimony is one of rare occasions on which Google calls its search output using the word opinion. In its promotional materials Google calls its search output using words answers or results, indicating that its search is service that gives consumers answers by computing objective results. Sometimes Google even goes further. Eric Schmidt said in an interview:

“I actually think most people don’t want Google to answer their questions. They want Google to tell them what they should be doing next.“

https://googlesystem.blogspot.com/2010/08/eric-schmidt-on-future-of-search.html#gsc.tab=0

First published on September 14, 2017.