Law professor Eugene Volokh wrote a paper describing why he believes that search engines have a constitutional right to speak to their users without government intervention. Although the 27 page paper was commissioned by Google, Professor Volokh (UCLA Law School) made the following conclusions about the leading search engines:
Google, Microsoft’s Bing, and Yahoo! Search exercise editorial judgment about what constitutes useful information and convey that information—which is to say, they speak—to their users. In this respect, they are analogous to newspapers and book publishers that convey a wide range of information from news stories and selected columns by outside contributors to stock listings, movie listings, bestseller lists, and restaurant guides. And all of 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.
The New York Times reported that Google hired Professor Volokh to help validate Google’s immunity from antitrust claims which are front page news in the US and EU. As a matter of fact, the EU recently demanded that Google change its search engine practices or suffer antitrust fines. My good friend Erika Morphy wrote an interesting article for eCommerce Times on the EU claims entitled "Is Google Stuck in EU Antitrust Locomotive’s Headlight? "
If the Google can sustain its claim that as a publisher relying on free speech and that Google has the right to produce whatever search results it chooses, then perhaps Google can avoid antitrust charges.
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