A prominent First Amendment scholar has co-authored a white paper arguing that search engines enjoy the same high level of First Amendment protections as traditional media outlets. Google commissioned the paper, presumably to help ward off calls for government regulation of its search results.

As Google has grown in size and influence, it has attracted a growing chorus of critics who accuse it of anti-competitive conduct. Some Google critics have promoted the concept of "search neutrality," though others have labeled the concept "incoherent." The company is also increasingly targeted by those who demand that Google scrub unwanted details from specific searches.

The new Google-commissioned paper, written by well-known UCLA law professor Eugene Volokh and attorney Donald Falk, argues that such regulations would be preempted by the First Amendment. Google's search engine, they write, "uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers' judgments about what material users are likely to find responsive to these queries."

The authors argue that this selection process is no different, constitutionally speaking, from a newspaper editor selecting wire stories to run, a guidebook deciding which attractions to feature, or a parade organizer choosing which floats to include. The courts have ruled that all of these editorial processes are fully protected by the First Amendment.

Moreover, the paper argues, the courts have held that First Amendment rights generally trump antitrust law—something of increasing concern to a dominant company like Google. "Antitrust law cannot be used to require a speaker to include certain material in its speech product," Volokh and Falk write. They point to a 1945 case in which the courts found the Associated Press had violated antitrust laws, but stressed that its ruling did not "compel AP or its members to permit publication of anything which their 'reason' tells them should not be published." Newspaper editors have the right to decide which stories should be included in their newspapers and which ones make the front page. This suggests that Google has similarly wide discretion to decide which links and other content will appear, and in which order, in response to any given search query.

The limits of promotion

Ars asked Frank Pasquale, a law professor at Seton Hall University who has previously suggested the creation of a "Federal Search Commission," to comment on the white paper. He drew a distinction between "editorial judgments" (which he concedes receive full First Amendment protection) and search engines that deliberately promote their own subsidiaries.

Pasquale said he was "coming around" to the view that Google has the right to give its own products, such as Google Maps, prominent placement in search result pages. However, he still believes that "disparate or unfair treatment in a stable product" raises more serious concerns.