In US, Search Ads Are Not a Free Speech Issue

10 comments

Eric Goldman reviewed a recent case which concluded search engines are not required to list advertisments:

  • Search engines have a First Amendment right to reject ads as part of their protected right to speak or not (see Miami Herald v. Tornillo).
  • Search engine decisions to reject ads is protected by 47 USC 230(c)(2) as a legitimate decision to filter "otherwise objectionable" content.
  • Search engines aren't state actors and are not bound by the First Amendment, so they do not deprive advertisers (such as Langdon) of First Amendment rights by rejecting their advertising.

Comments

Presumably laws work differently over there....

because as a Brit, the fact this is even being discussed amazes me :) No company can be forced to do business with any individual, surely? Google can refuse to publish my ad about cute fluffy kitties if they wish and basically if they don't want to take my money I can't force them to, same as I can't force Tescos to sell to me or the Massarati showroom to give me a test drive. How did this even get to court?

(Issues regarding organic SERPs are a slightly different thing, since there is no actual contract available for that relationship, which makes it arguably when, and if, an impied contract comes into play and if so what the terms of that implied contract are imho. I don't think Kinderstart is right but I also don't think that comparisons between that and this are especially valid)

Anyone can file a lawsuit,

Anyone can file a lawsuit, it was dismissed as being frivolous. This isn't really being discussed outside of places like here, because really it is a who cares, no kidding lawsuit and ruling.

"Massarati showroom"

you still upset about how they treated you there Gurtie?
for what it is worth I think you choice to go with the ferrari was a better choice anyway ;)

but to answer your question, I think it'd get to court here (UK) under discrimination, maybe.

The most interesting thing here to me, as a lawyer,

is that a professor at an accredited law school blogged on this, straight faced, as if it were a big deal, significant decision.

A "griper" files a lawsuit pro se (that is, without a lawyer, which suggests no lawyer would touch the case) and gets tossed by the judge on the obvious grounds. So what? Are we supposed to be amazed and impressed that a private company like Google is not a state actor, when that holding is consistent with decades and decades of prior decisions? Maybe, if you are doing a case round up, or reporting each and every case in a given area, it deserves some kind of footnote status. To report it as an "emphatic and helpful win for the search engines" gives it a level of importance it doesn't deserve.

Eric Goldman actually has a very impressive resume. This blog post of his, however, makes me wonder how seriously he deserves to be taken when he starts opining.

The first amendment only

The first amendment only says that Congress cannot pass a law to abridge or cut short anything you say in any way.

Congress shall make no law... ...abridging the freedom of speech, or of the press...

since Google isn't congress then it can do what ever it wants when it comes to censoring.

"for what it is worth I

"for what it is worth I think you choice to go with the ferrari was a better choice anyway ;)"

I'd need to see a lot of evidence to agree with that :-)

better

the ferrari is better because I get a lot more lifts from the nice men at the RAC, thus saving on petrol and getting a better view of the lovely countryside. Oh, and I also always have time for a picnic beside the motorway....

would we feel the same if

would we feel the same if the search engine had a monetary incentive to exclude some advertiser. If they owned stock in Ferrari, would you agree they have the right to refuse ads from maserati? Or to charge more for the same positions they would charge others for?

If they decided to get into the travel business and took your money for an ad but your ads always came AFTER their ads or their ads were in the organic results while yours somehow never seemed to meet the quality standards needed to get in the same relative position. Would that be a problem or would we still feel they had the right to do anything they want.

I still say as I have always said, yes, any website, (not just search engines), has the right to display content they way they choose UNLESS they use their power and influence to restrict fair trade or to libel or cast unproven aspersions for the purpose of personal profit. When you possess a resource that becomes a place the public comes to rely on for fair and unbiased information and the intent is to use that resource to limit the reach of competitors for personal gain, then you are limiting the options of the consumer and that is restraint of trade and that is illegal in the US.

At the very least it seems the language we are using could include conflict of interest. Does that matter?

Takes a lot more to be restraint of trade

"When you possess a resource that becomes a place the public comes to rely on for fair and unbiased information and the intent is to use that resource to limit the reach of competitors for personal gain, then you are limiting the options of the consumer and that is restraint of trade and that is illegal in the US."

I don't think you accurately state the law in the US. It's perfectly legal to exclude competitors from your property, virtual or not. Rather obviously, Walmart or Costco has every right to put me out on the sidewalk if I roll my pushcart into their store and start trying to sell my goods right in front of their cash registers, even though kicking me out will limit the options of consumers. Just as obviously, no one expects the Ferrari dealer to allow the Maserati dealer to leave promo materials for Maserati in the Ferrari showroom. although, again, that limits the relevant information available to consumers. In the virtual world, if Ask.com decided tomorrow to eliminate from their search results all references to Yahoo or Google properties, it would be perfectly legal. They have no legal responsibility to feature their competitors in their search results, and can exclude them even if the intent is to limit the reach of their competitors. The theory, and the reality, is that the market can respond to such actions, as people could start going elsewhere to get reliable and unbiased search results.

When you have monopoly power, it gets more complicated, but even then it's not a gimme. Excluding competitors, and trying to drive competitors right of business and into bankruptcy, is a basic feature of capitalism; it's the exceptional case where actions to defeat competitors become illegal.

but no one (at least here)

but no one (at least here) said this is about Google taking money and not acting fairly. Did they take money? I thought they refused it.

Of course it would be different IF they were using

Quote:
their power and influence to restrict fair trade or to libel or cast unproven aspersions for the purpose of personal profit

but it would also be different if they were using naked dancing showgirls to bribe the US to make the 'Plex an independent territory. Just because we can conceive of the plot doesn't mean that its a justified accusation :)

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