A decade ago, when Google search was first accused of self-preferencing its own results, a colleague of mine created a meme with text over a photo of the Google homepage that read: “All Search Results Must Appear First.” Ten years later, it remains an absurd idea to stop the search giant from prioritizing its results. That, however, did not stop the State of Ohio from asking for just that in a suit filed earlier this week, seeking to regulate the company as if it were a common carrier. The civil complaint comes on the heels of prominent conservatives calling for common-carrier regulations for social-media platforms. Both proposals suffer from similar problems: private-property-rights violations, First Amendment constraints, and a real-world outcome that would leave consumers worse off.
In his filing, Ohio attorney general David Yost fretted about Google’s ability to favor search results that link to its other platforms, such as YouTube, Google Maps, or Google News. Yost writes that Google “has a duty not to artificially prioritize Google services and links higher than they would be displayed as a result of Google’s internet searches algorithms in which the algorithm is not programmed to prioritize Google’s own products and services.”
Contra Yost, Google has no such obligation. As the Ninth Circuit Court of Appeals has ruled, Google is not a public forum — it is a private company. As such, it has First Amendment rights to speak as it chooses — and search results, in addition to how they are displayed, qualify as protected speech.
As a practical matter, it may be impossible — or at least useless — for Google to produce perfectly neutral search results. Results without a bias toward what Google thinks users want to see would fundamentally reduce the quality of the search engine. Indeed, Google’s so-called bias is a feature for consumers, not a bug. Google’s current aim is to distinguish its results from those of competing search engines in order to attract eyeballs and, in turn, sell more ads. Its success doesn’t insulate it from competitors who would happily exploit the folly of Google preferencing its own results over what users are most interested in finding. To regulate away Google’s ability to create a competitive advantage is to fundamentally attack its business model.
Beyond significantly harming Google’s bottom line, common-carrier regulation would not even serve consumers. Users would not benefit from taking the world’s most popular search engine and turning it into an inferior product. It is Google’s job to balance retaining the maximum number of users with other considerations, including driving online traffic to its own services. Government regulations that prevent Google from finding that balance aren’t just putting a finger on the scale, they are essentially throwing the scale out the window. Nondiscriminatory restrictions on search results block the ability of Google to compete to delight consumers. In this sense, common-carrier regulations will harm, not serve, the public by delivering a degraded and inferior service.
It’s also difficult to see how this Ohio initiative could remain contained to Ohio. If Google search doesn’t rise to the level of interstate commerce, what does? One state’s heavy-handed regulatory scheme should not be forced on consumers of other states who have no democratic voice in electing the attorney general of Ohio or endorsing his policies. That circumstance is the dead opposite of healthy federalism.
Common-carrier regulations are traditionally reserved for industries that hold themselves out to the public to transport things indiscriminately (e.g., people in airplanes, freight over railroads, signals in telecommunications) in exchange for a fee. While there are no hard-and-fast rules for what qualifies as a common carrier, the history of the regulatory designation does not suggest it is a good fit for online search engines. After all, Google is not transporting anything — it’s returning search results and selling ads. Common-carrier rules also would not benefit consumers, which should be the aim of any regulatory policy. Better to keep the State of Ohio out of the online-search business.