Google’s latest claimed antitrust get-out-of-jail-free-card is that Google is effectively immune from antitrust prosecution because it has a constitutional free speech right to free speech to rank and present its search results any way it wants, per a new Google-sponsored white paper by UCLA Law Professor Eugene Volokh. This effort is much more of a political argument and PR wish than a legal or antitrust argument, because neither the right to free speech nor any other right in the Constitution’s Bill of Rights confers immunity from the rule of law foundation on which the rest of the U.S. Constitution rests. There are many reasons to be skeptical of Google’s blanket claims of antitrust immunity via its free speech rights.
First, anybody that considers the many forms of illegal speech that are unprotected by the First Amendment: perjury, libel, slander, misrepresentation, lying under oath, fraud, deceptive practices, falsifying documents, collusion, conspiracy, impersonating a police officer, stealing, vandalism, graffiti, inciting a riot, etc., will take Google’s imagined blanket immunity from antitrust laws on free speech grounds with a grain of salt. Google exaggerates its “free speech” rights to protection from antitrust, just like it exaggerates its “fair use” rights to take others’ property without permission.
Second, the U.S. Constitution is not operative in the 53% of Google’s business which it conducts outside of U.S. sovereignty. The European Union, South Korea, Argentina, India, and Brazil, which are all conducting antitrust investigations into Google’s dominance and alleged anti-competitive practices, are not bound by America’s freedom of speech protections.
Third, Professor Volokh’s free speech defense explicitly addressed only search results, and not the ads/sponsored listings that appear immediately above Google’s search results (and closely resemble search results), and the ads that appear to the right of the search page. “We focus in this submission on Google search results for which no payment is made to Google, because they have been made the subject of recent debates; we do not discuss, for instance, the ads that Google often displays at the top or right-hand side of the search results page.” This sweeping caveat makes much of the paper’s analysis moot because the antitrust charges against Google are substantially that Google has market power and strong financial incentives to abuse its market power to favor its own or affiliated content over competitors’ content in its search results and in its advertising practices.
Fourth, these many antitrust investigations and potential prosecutions around the world are fact-based determinations of whether Google has violated those jurisdictions’ competition laws. As much as Google would like to divert attention and focus from the alleged bad acts Google has been accused of, to focus attention on its claimed free speech rights to run its business without regard to others, the legal processes at work here will be driven by whether or not their laws have been broken, not by Google’s effective claim that they are above the law generally, and above antitrust law specifically. In other words, Google can run from the facts and the process, but it can’t hide from the consequences of breaking the law.
Fifth, it is ironic that Google is spotlighting its First Amendment right to “edit” its search results speech, like a newspaper has freedom of speech and the press, because it is basically a defense against an antitrust remedy if Google is found guilty of antitrust violations. In making a big deal of its defense against a hypothetical antitrust remedy, before Google has been found guilty of anything, strongly suggests that Google either believes it is guilty, or that it will be found guilty of breaking antitrust law.
Finally, it is also ironic that Google is now claiming it should be considered like a newspaper for free speech purposes, given that it considered buying the New York Times, but decided against it because that would “would sabotage its identity as a neutral search engine,” according to Google author, Ken Auletta.
In sum, given the deep flaws in Google’s legal arguments claiming near blanket immunity from antitrust prosecution on free speech grounds, could this really be more of a political narrative and “Take Action” plan Google is attempting to establish? Could this effort to politically link antitrust as a threat to free expression really be a “dog whistle” pitch to its seven million Internet allies that joined Google to oppose pending anti-piracy legislation (SOPA/PIPA) on the ostensible charge that it was “Internet censorship” and a government attempt to “break the Internet?”
In helping lead the opposition to anti-piracy legislation on free speech grounds, Google co-founder Sergey Brin said on Google+ that: “the newest threat to free speech has come from none other but the United States… I am shocked that our lawmakers would contemplate such measures that would put us on a par with the most oppressive nations in the world [China and Iran].”
It is one thing for Google to orchestrate opposition to pending legislation, it is quite another to potentially or implicitly target global law enforcement in a similar manner, when it has already been found by the FCC to have impeded a Federal law enforcement investigation.