Ohio Attorney General Dave Yost, with support from populists on both the political left and right, contends that Google Search is a common-carrier service under Ohio law and should therefore be restricted from prioritizing its own products and services in its search results. After losing at the lower-court level, Yost now brings his suit against Google LLC to the Fifth District Court of Appeals of Ohio.
The Delaware County Court of Common Pleas previously found at summary judgment that:
- Google Search itself does not transport information, it simply provides an answer to a query that is actually transported by internet service providers (ISPs); and
- Google does not hold itself out to serve the public indifferently in its search results, which are tailored answers for particular users.
Because the court found that Google Search was not a common carrier under Ohio law, it did not consider the First Amendment argument that Google was engaged in protected expressive activity in providing search results. But as my colleagues and I at the International Center for Law & Economics (ICLE) argue in an amicus brief to the Court of Appeals, in the communications context, there is substantial overlap in the tests for whether an entity is a common carrier and whether it is engaged in expressive activity protected by the First Amendment.
If an entity creates an “expressive product,” rather than simply transmitting the speech of others, then that entity is not only not a common carrier, but it is also protected by the First Amendment. As we put it in our brief:
Ohio’s common carriage requirements align with how federal courts distinguish between neutral transmission services, where common-carrier obligations may attach, and entities that create their own expressive or curated products, where such obligations are subject to heightened First Amendment scrutiny. In this regard, the Supreme Court employs substantially similar tests in the communications context: Is the service neutrally transmitting users’ chosen content, or selecting and organizing content through editorial discretion? If it is the latter, the service is creating its own expressive product and not merely carrying others’ speech.
For instance, the U.S. Supreme Court has defined a common carrier in the communications context as an entity that “makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design or choosing.” This means the entity does not “make individualized decisions, in particular cases, whether on what terms to deal.”
In other words, there is a difference between transmitting messages on behalf of consumers, as telecommunications providers do, and selecting content for transmission or publication, as a newspaper or the operator of a cable system might.
Similarly, the Court has found that the First Amendment protects an entity engaged in expressive activity, “including compiling and curating others’ speech.” In Moody v. NetChoice, the Court distinguished between “[c]urating a feed and transmitting direct messages,” stating that “one creates an expressive product and the other does not.” Similarly, in 303 Creative LLC v. Elenis, the Court distinguished between “customized and tailored speech” and an “ordinary commercial good.” And in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court distinguished between a situation where “a baker refused to design a special cake with words or images celebrating the marriage” and “a refusal to sell any cake at all.” In each case, the level of creativity is important to distinguish whether the government is regulating expressive activity or mere business conduct.
In the Ohio v. Google case, the lower court’s findings that Google Search is not a common carrier also clearly show that it is engaged in protected expressive activity. The Court of Common Pleas deemed it undisputed that:
Google Search creates its own product when it responds to a user’s inquiry… which is compiled anew by Google Search for each user from information Google has mined, organized, and developed.
In doing so, the court wrote, “Google exercises judgments about crawling, indexing, and ranking webpages” and “[w]hen a user makes a query, Google creates and returns a unique” result.
This record shows that Google is engaged in protected editorial decisions when it comes to search results, which means it creates its own expressive product. Ohio’s attempt to impose a different set of results would amount to compelled speech. As such, this would be a content-based restriction subject to strict scrutiny.
Nor could Ohio justify these common-carriage obligations on the grounds that they would constitute better search results, as the Supreme Court in Moody found that the “government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas…” This would be a clear First Amendment violation.
As we conclude in our brief:
Ohio’s attempted end-run of the First Amendment by declaring Google a common carrier must be rejected by this court. Google’s search results are an expressive product, and as such cannot be subject to common carriage requirements. The order of the Court of Common Pleas should be affirmed.
