Google commissioned Eugene Volokh of UCLA to write a paper, together with Donald Falk of Mayer Brown LLP, in support of Google's position that the results produced by the algorithms in its search engine are protected by the freedom of speech rights in the First Amendment to the U.S. Constitution. The motivation of Google in commissioning this paper was to resist a possible anti-trust complaint against it for abusing its dominant market position in the search engine business, and for allegedly producing skewed search results that are non-objective and biased towards its advertisers and also companies in which Google has a business interest.
Volokh's arguments are rather conventional and unsurprising, e.g. the aggregation of links to material authored by others, including the determination of the order in which they are presented, is protected as speech, citing travel guides, newspapers' judgments as to which columnists to carry etc. Volokh also has to deal with the issue that the ordering of the aggregated material in Google's case is determined by a computer algorithm, which introduces an element of unpredictability and randomness, as well as a lack of control by the designers of the algorithm over their alleged "speech", and the element of interactivity by the alleged "listener", i.e. the individual who crafts a query that he or she enters into the search engine. Volokh responds to these arguments, which tend to point to the search being something other than speech or expression by Google, again using rather conventional arguments, e.g. that the creators of the algorithm exercise editorial choices when they design the program and that the US Supreme Court has upheld the freedom of speech rights of designers of interactive video games. Volokh also notes at p. 11 that the protection to be given to speech increases in proportion to its value to listeners, and that the automation process associated with the algorithm increases the value of the results to the "listeners". However, later on in the paper at p. 19 when dealing with the possibility that Google users will find the search results to be "unreliably skewed" (as opposed to reliably skewed?), Volokh seems to retreat from the ensuing possibility that this may mean that the results should not be protected as speech, and instead reverts to a market-based analysis which indicates that users can easily switch to another search engine, such as Microsoft's Bing.
The first notable reaction to Volokh's paper was from Tim Wu, a law prof at Columbia, who published an op-ed in the New York Times, entitled "Free Speech for Computers?" Wu's brief article simply states that the entity doing the "speaking" is the computer running Google's algorithm and computers and other non-human, automated entities do not have constitutional rights. Wu uses the analogy of Dr. Frankenstein's monster, which does not have voting rights even though he has been created by the Doctor, who does possess such rights. (Yes, there was a fledgling democratic process in Central Europe in the early 19th century when Mary Shelley wrote her story.)
Volokh responded on his blog to Wu's brief piece, repeating some of his initial conventional arguments and also rather frivolously attacking Wu's Frankenstein metaphor by pointing out that it is possible to have speech rights but not voting rights, e.g. corporations, felons etc. This doesn't prove anything except that Wu made a flawed choice in selecting voting rights to illustrate his colorful metaphor. Volokh instead prefers the metaphor of an artist creating an interactive animatronic sculpture, the utterances of which should be constitutionally protected as speech, just as if the artist had said them directly.
Other scholars have joined in the fray, such as Frank Pasquale of Marquette University, who speculates that Volokh's argument may lead to Second Amendment protection (right to bear arms) being given to creators, programmers and users of automated armed robots and drones designed to protect private property. Pasquale has a good point in that the element of unpredictability and randomness associated with automation should distance the output sufficiently from the human sphere, where responsibility operates in tandem with rights. Search results, while determined by an algorithm originally designed by a programmer making certain choices, are also ultimately random and unpredictable since they are dependent on the constantly changing incoming links, including user hacks such as "Google-bombing" which temporarily produced amusing results when President George W. Bush's name was entered.
The debate thus far has tended to become polarized into two camps, i.e. Google's search engine as harmless animatronic sculpture which is an extension of the speech rights of its programmers versus Google's search engine as an unpredictable, dangerous Frankenstein monster which is separate and distinct from its human creators. However, what seems to be missing from the debate currently is the notion that Google is essentially a form of virtual world, in which conduct and expression have become intertwined and indistinguishable. For example, if I create an avatar in Second Life, and I click a button which sends my avatar skating down a frozen river in the winter, I am at the same time both conducting a virtual action and expressing my fondess for outdoor winter sports (especially if this is done in the summer when it is not physically possible to perform such an activity in the real world). Pasquale alludes to this in his blog post in the context of LRADs, which are crowd control devices which use ultra-loud volume to make announcements to disperse, thus simultaneously inflicting pain (conducting an action) and conveying a message (speech). Clearly, the collapsing of conduct into speech rights would significantly expand the rights of corporations under the First Amendment. Google's search results demonstrate a similar sort of merger of conduct and speech in that they represent a unique hybrid of speech by a programmer, the actions of the program running on the Google servers, and the speech by the user in the form of search inquiries. However, this merger need not represent the dystopian vision of Robocop, but rather the more benign notion of Google as a virtual world inhabited by its hundreds of millions of users. This raises the possibility that Google, as the provider of approximately 66% of online search results in the U.S. and almost 50% globally, has stepped into the shoes of the state (as being equivalent to a company town as I suggested in a 2004 paper discussing virtual worlds). Therefore, rather than the focus being on Google's rights under the Constitution, it should be on Google itself being accountable for ensuring that those rights are provided to its users. Ideally, this should include the right of users to receive the necessary objectively presented, unbiased and unskewed information to act as informed citizens in exercising their democratic franchise, which is expressly part of constitutions such as Germany's, as well as the laws of many other countries where Google operates.
As James Madison stated in a letter to William Barry in 1822:
A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.