Legal scholar warns antitrust suit against Google would stifle free speech

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The Federal Trade Commission (FTC) is currently investigating whether Google has run afoul of antitrust law by manipulating its search formula to ensure that its own services, such as YouTube, Google Maps and Google Plus, appear above those of its rivals.

Critics say Google's search engine is a portal to the Internet and the company should not be allowed to suppress access to its competitors. 

Whether Google actually boosts its own services is a complicated and disputed issue, but Volokh argued that search engines have a constitutional right to organize their results however they want.

He said the decision about where to place a search result is just like a newspaper editor's decision about whether a story should be on the front page.

He also compared search rankings to the decisions by news aggregators like the Drudge Report about which stories to link to and how to organize them.

"The judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable," Volokh wrote. "And all of these exercises of editorial judgment are fully protected by the First Amendment."

He argued that Google's decisions are constitutionally protected even though they are determined by a computer algorithm. He noted that the algorithm is designed by humans and that the criticism against Google is based on the theory that the company is making a decision about how to adjust its rankings.

Critics of Google claim the company is using its dominance in search to choke off competition for other Web services, such as maps, video or restaurant reviews.

They argue the First Amendment does not give Google the right to suppress competition. 

But in an interview with The Hill, Volokh noted that if consumers do not like Google's search rankings, they can easily use a competitor like Bing instead. 

He warned that if the FTC wins a lawsuit against Google, there could be "immediate consequences" that would undermine free speech rights.

"What can be said about Google can be said about newspapers, encyclopedias and a wide range of information sources," Volokh said. "I would be very worried if I were any other speaker on the Internet." 

He claimed that if the government can force Google to change its search rankings in the name of "fairness," then the government could require blogs and newspapers to only post balanced stories or to give all parties an opportunity to respond.

"You can't restrict speech just because it's unfair," he said.