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Is Google Like Gas or Like Steel?

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By Bruce D. Brown and Alan B. Davidson

By Bruce D. Brown and Alan B. Davidson

After a two-year investigation, the Federal Trade Commission concluded this week that Google’s search practices did not violate antitrust law. Those who wanted to see an epic battle like the one the government fought with Microsoft in the 1990s were sorely disappointed. But the analogy to the browser war of the Web’s early days was never the right one. It failed to capture the dangers free speech would have faced if regulators had agreed with Google’s critics.

The theories that many critics advanced — that search must be “neutral” because it is akin to a public utility, or that computer-generated search results are not speech and therefore not protected under the First Amendment — would have undermined free press principles across the Internet. That the FTC decision permits Google to continue to use its judgment in analyzing search requests and presenting pertinent results is a victory for online expression and is consistent with First Amendment law since the 1940s.

Seven decades ago, a lawsuit against The Associated Press applied antitrust rules to the media and was resolved in a way that ultimately protected First Amendment interests. This case was always a better parallel than Microsoft to the FTC investigation of Google. Like Google today, The AP had extraordinary influence. Then as now there were questions about whether something more than common antitrust law should govern companies that play such an important role in the delivery of information to the public.

Back then, the Justice Department alleged that AP bylaws allowed its member papers to impede local competitors by denying them access to The AP’s expansive news network. A trial court agreed but applied a theory far broader than routine antitrust law. It held that news was not an “ordinary” product like “steel” governed solely by antitrust, but rather something more “vital” because it was “clothed with a public interest.”In other words, the trial court wanted to treat the mass media like a public utility, which carried considerable consequences. For example, while it would be illegal under antitrust law for a large steel company to conspire with competitors to fix prices, that company has no obligation to sell to every carmaker that wants steel. A public utility, on the other hand, has to serve everyone in the marketplace equally. Applying that standard to The A.P. would have opened the door to far broader regulation and could, in theory, have meant something as absurd as requiring newspapers to cover every press release or publish every letter to the editor.

When the case reached the Supreme Court in 1945, the modern understanding of the First Amendment, with its insistence on an independent news media, had yet to take shape. So it was with great significance that — even though The AP lost its appeal and had to allow more access to its services — the court steered entirely clear of the public-utility model. It looked instead to standard antitrust law in finding The AP’s conduct to be a classic restraint on trade.

The court went further in setting down a marker that to this day restrains government regulation of the media. Justice Hugo L. Black, who would become a leading champion of the First Amendment, wrote that nothing in the ruling could “compel AP or its members to permit publication of anything which their ‘reason’ tells them should not be published.”

This began a historic run in which the court transformed the media into an institution with the autonomy to serve as a check on government power. The First Amendment as we know it would look very different if public utility obligations had been forced onto the press that day.

If The AP was concerned about a regulator in every newsroom, Google was concerned about a regulator in every algorithm.

Advocates of aggressive action against Google saw the computer algorithms behind search as a utility that should be heavily regulated like the gas or electricity that flows into our homes. But search engines need to make choices about what results are most relevant to a query, just as a news editor must decide which stories deserve to be on the front page. Requiring “search neutrality” would have placed the government in the business of policing the speech of the Internet’s information providers. To quote Justice Black, it would have made search engines publish those results “which their ‘reason’ tells them should not be published.”

Others argued that the FTC did not need to be guided by First Amendment concerns at all because search results are created by computers, not by human beings. Yet computers “speak” in many ways today. Lawmakers could have used FTC precedent against Google to regulate the content of Amazon’s book recommendations, the locations on Bing’s maps, the news stories that trend on Facebook and Twitter, and many other online expressions of social and political importance.

The FTC resisted these harmful theories, and as a result speakers all over the Internet won. But that doesn’t mean Google is exempt from regulation. The First Amendment is not a grant of immunity for any business, and antitrust scrutiny does not end where editorial judgment begins. But the AP case shows that antitrust laws can be enforced while protecting the right of a free press to print what it chooses and nothing more.This makes regulation of the media difficult. But regulating speech should not be easy, like regulating a public utility, but hard, as the FTC has correctly found.

Bruce D. Brown is the executive director of the Reporters Committee for Freedom of the Press and a lecturer at the University of Virginia Law School. Alan B. Davidson is a visiting scholar at M.I.T.’s Technology and Policy Program and a former director of public policy for the Americas at Google.

A version of this op-ed was first published in The New York Times on Jan. 5, 2013.