FTC Commissioner Sees Through Google's First Amendment Defense

Recently, Google’s been peddling a theory that its biased search results are protected by the First Amendment. In April 2012, Google paid Eugene Volokh to write a paper to this effect. Volokh wrote that search engines like Google “exercise editorial judgment about what constitutes useful information and convey that information—which is to say, they speak—to their users…these speakers are shielded by the First Amendment, which blocks the government from dictating what is presented by the speakers or the manner in which it is presented.”

Unfortunately for Google, this First Amendment defense is nothing more than a convenient theory designed to hide the truth: Google biases its search results in favor of its own products in order to protect and extend its monopoly in search and search advertising.

It seems that FTC Commissioner Jon Leibowitz sees through Google’s defense too. In an interview with The Wall Street Journal’s Walt Mossberg, Leibowitz answered a question regarding Google’s First Amendment defense. He outlined two specific concerns:

• “If you engage in deceptive acts or practices, if you advertise deceptively, there is no First Amendment right to do that.”
• “If your behavior is that you exercised First Amendment rights in furtherance, as many allege Microsoft to have, as Microsoft was, I think, was found to have done by the DC circuit in the 1990s or the early aughts in furtherance of an antitrust violation or an unfair method of competition, then you are not protected there.”

Right now, law enforcement officials around the world are investigating whether “Google searches unfairly steer users to the company’s own growing network of services at the expense of rival providers” or if “Google displays links to its own vertical search services differently than it does for links to competitors” potentially resulting in “preferential treatment compared to those of competing services” which may harm competition. It’s hard to imagine that the framers of the Constitution intended for the First Amendment to be twisted to defend a company that limits competition and harms consumers.