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Terrific analysis, Paul, as always. The only quibble I'd have is buying into the interpretations that Google has put around the few district court cases that Google tends to cite. If you read them, you'll be surprised. In Langdon v. Google, a Delaware trial court case from 2007, a pro se plaintiff filed suit against all search engines, claiming that they violated *his* constitutional rights. The court found that Google isn't a state actor -- hardly surprising, and hardly a ringing endorsement of Google's First Amendment rights. In Kinderstart v. Google, another 2007 Delaware trial court decision, a vertical search engine claimed that Google monopolized the market for search and penalized it because it was a competitor. The court granted Google’s motion to dismiss because Kinderstart couldn’t plead specific facts to support its case, not because Google had an absolute First Amendment right to engage in those behaviors. Again, the court didn’t even address Google’s First Amendment claim. The 2003 Oklahoma trial court decision in Search King v. Google did address the issue. That court accepted Google’s argument that its “objective” algorithm, as it was applied ten years ago, constituted protected opinion because it did not include provably false factual connotations. That’s not an “absolute” protection of speech, but quite consistent with the general commercial speech test -- and I suspect Google’s algorithm might have changed a bit over the years. (Back in 2002, the leading search search engine was Alta Vista -- remember them?). More in my paper here:
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Jun 25, 2012