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Over the past few months, we at the International Center for Law & Economics (ICLE) have endeavored to bring the law & economics methodology to the forefront of several major public controversies surrounding online speech. To date, ICLE has engaged these issues by filing two amicus briefs before the U.S. Supreme Court, and another in Ohio state court.

The basic premise we have outlined is that online platforms ought to retain the right to engage in the marketplace of ideas by exercising editorial discretion, free from government interference. A free marketplace of ideas best serves both the users of these platforms, and society at-large.

Read the full piece here.

Ohio has made the news, but not for the success of Ohio State football or the induction of a new musical act into the Rock and Roll Hall of Fame. This time, it’s because of Ohio Attorney General Dave Yost’s quixotic effort to have Google’s search engine declared a common carrier.

Traditionally, a common carrier is a business that opens itself indiscriminately to public use. It is on this basis that Ohio, other states, and the federal government all have imposed nondiscrimination requirements on entities like railroads and telephone companies.

Read the full piece here.

 

INTEREST OF AMICUS CURIAE[1]

The International Center for Law & Economics (“ICLE”) is a nonprofit, nonpartisan global research and policy center aimed at building the intellectual foundations for sensible, economically sound policy.  ICLE promotes the use of law-and-economics methods and economic learning to inform policy debates.

ICLE has an interest in ensuring that First Amendment law promotes the public interest, the rule of law, and a rich marketplace of ideas.  To this end, ICLE’s scholars write extensively on social media regulation and free speech.  E.g., Int’l Ctr. for Law & Econ. Am. Br., Moody v. NetChoice, LLC, NetChoice, LLC v. Paxton, Nos. 22-277, 22-555 (Dec. 7, 2023); Ben Sperry, Knowledge and Decisions in the Information Age: The Law & Economics of Regulating Misinformation on Social-Media Platforms, 59 Gonzaga L. Rev. ___ (2024) (forthcoming); Geoffrey Manne, Ben Sperry & Kristian Stout, Who Moderates the Moderators?: A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet, 49 Rutgers Computer & Tech. L. J. 26 (2022); Internet Law Scholars Am. Br., Gonzalez v. Google LLC, 21-1333 (Jan. 19, 2023); Ben Sperry, An L&E Defense of the First Amendment’s Protection of Private Ordering, Truth on the Market (Apr. 23, 2021), https://bit.ly/49tZ7XD.

ICLE is concerned about government meddling in—and the resulting impoverishment of—the marketplace of ideas.  That meddling is on display in this case—and another case before the Court this Term.  See No. 22-842, Nat’l Rifle Ass’n of Am. v. Vullo (state official coerced insurance companies not to partner with gun-rights organization to cover losses from gun use).  But this case and Vullo merely illustrate a larger problem.  See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (sheriff campaigned to shut down Backpage.com by pressuring Visa and Mastercard to stop processing Backpage transactions); Heartbeat Int’l, Inc. Am. Br. at 4–10, Vullo, supra (collecting examples); Will Duffield, Jawboning Against Speech: How Government Bullying Shapes the Rules of Social Media, Cato Inst. (Sept. 12, 2022) (collecting examples), bit.ly/41NEhjb; Victor Nava, Amazon “censored” COVID-19 vaccine books after “feeling pressure” from Biden White House: docs, New York Post (Feb. 5, 2024), https://bit.ly/3Sq5152.  With this brief, ICLE urges the Court to enforce the Constitution to protect the marketplace of ideas from all such government intrusions.

SUMMARY OF ARGUMENT

The First Amendment protects a public marketplace of ideas free from government interference.

“The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” Sorrell v. IMS Health Inc., 564 U.S. 552, 577 (2011) (citation omitted).

“Our representative democracy only works if we protect the ‘marketplace of ideas.’  This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will.  That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”  Mahanoy Area Sch. Dist. v. B.L., 594 U.S. ___, 141 S. Ct. 2038, 2046 (2021).

Without a free marketplace of ideas, bad ideas persist and fester.  With a free marketplace of ideas, they get challenged and exposed.  When we think of the marketplace, we think of Justice Holmes dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919).  But the insight behind the concept dates back thousands of years, at least to the Hebrew Bible, and has been recognized by, among others, John Milton, the Founders, and John Stuart Mill.  The insight is that the solution for false speech is true speech.  The government may participate in the marketplace of ideas by speaking for itself.  But it ruins the marketplace by coercing speech.

This Court has long stressed the danger of restricting speech on public health, where information can save lives. Several respondents here are elite professors of medicine who dissented from the scientific judgments of government officials. The professors were just the kind of professionals whose views the public needed to make informed decisions.  Instead, the government pressured social media websites to suppress the professors’ views, which the government –at least at the time—saw as outside the mainstream.

Government intervention like this undermines the scientific enterprise.  The goal of science is not to follow the current consensus, but to challenge it with hard data.  For that challenge to happen, the government must not interfere with the open marketplace of ideas, where the current consensus can always yield to a new and better one.

As the “purchasers” in the marketplace of ideas, the people—including respondents here—were stripped of their First Amendment right to make informed decisions on crucial matters of public health. The right to speak includes a corresponding right to receive speech.  Based on the record here, respondent states can likely show that petitioners trampled on their right to receive information and ideas published by websites.  Similarly, respondent individuals will likely be able to show that they have been robbed of their right to hear other suppressed speakers. Today, the marketplace of ideas is stocked, in part, by social media companies exercising editorial discretion. What distinguishes one site from another is what it will, and will not, publish.  As commentators have noted, in the online world, content moderation is the product.  Social media companies are what economists call multi-sided platforms, which connect advertisers with users by curating third-party speech.  The better platforms become at curating speech, the more users engage, and the more valuable advertising becomes to advertisers and users alike.

At times, keeping users engaged requires removing harmful speech or even disruptive users.  But platforms must strike a balance in their content-moderation policies—allowing enough speech to attract users, but not so much speech that users are driven away.  Operating in the marketplace, social media companies are best placed to strike this balance.

Even if the online marketplace did not operate very efficiently (it does), it could not permissibly be controlled by the government.  The First Amendment forbids any abridgement of speech, including speech on the internet.  The way a website adjusts to the market shows what it thinks deserves “expression, consideration, and adherence,” or is “worthy of presentation” (phrases this Court has used to describe protected editorial discretion).  Pressuring social media companies to take down content changes the content of the platforms’ speech, intrudes on their editorial discretion, and violates the Constitution.

Given the record respondents have compiled, it is likely that they can show coercion by federal officials. The Fifth Circuit agreed, but its test for coercion fell short of the test applied in Bantam Books.  The focus of Bantam Books is not on the subjective understanding of the private actor, but on what the state actors objectively did—namely, was it reasonably understood as attempting to coerce private action?

Here it was.  Indeed, the allegations here include (a) many threats to have social media companies investigated, prosecuted, and regulated if they fail to remove disfavored speech, coupled with (b) extensive use of private meetings, emails, and digital portals to pressure social media companies to remove speech.  That was attempted coercion, and it was unlawful.

The remedy for unlawful coercion is an injunction against, or in some cases, damages from, government actors.  The court below focused the injunction on federal officials.  That was correct.  The marketplace of ideas—now freed from impermissible government intervention by the injunction—leaves its participants free to exercise their editorial discretion as they see fit.  The judgment should be affirmed.

ARGUMENT

I.       The First Amendment protects the marketplace of ideas from government meddling.

A.     A marketplace offering only government-approved ideas is no marketplace, logically and as historically understood.

The First Amendment protects an open marketplace of ideas.  “By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.”  303 Creative LLC v. Elenis, 600 U.S. 570, 143 S. Ct. 2298, 2311 (2023).  “‘[I]f there is any fixed star in our constitutional constellation,’ it is the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’”  Id. (quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) and McCullen v. Coakley, 573 U.S. 464, 476 (2014)).

“[U]ninhibited” means uninhibited. “[T]he First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided,’ and likely to cause ‘anguish’ or ‘incalculable grief.’” 303 Creative, 143 S. Ct. at 2312 (quoting Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995) and Snyder v. Phelps, 562 U.S. 443, 456 (2011)).  “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”  Sorrell, 564 U.S. at 577 (citation omitted).  Without zealous protection, unpopular speech may be “chill[ed],” “would-be speakers [may] remain silent,” and “society will lose their contributions to the ‘marketplace of ideas.’”  United States v. Hansen, 599 U.S. 762, 143 S. Ct. 1932, 1939–40 (2023) (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)).  Nor do speakers “shed their First Amendment protections by employing the corporate form to disseminate their speech.”  303 Creative, 143 S. Ct. at 2316.

When the marketplace of ideas is impoverished, it is not only “society” that loses (Hansen, 143 S. Ct. at 1939–40); it is democracy itself.  “Our representative democracy only works if we protect the ‘marketplace of ideas.’  This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will.  That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”  Mahanoy Area Sch. Dist., 141 S. Ct. at 2046.  “A democratic people must be able to freely generate, debate, and discuss * * * ideas, hopes, and experiences.  They must then be able to transmit their resulting views and conclusions to their elected representatives[.]  Those representatives can respond by turning the people’s ideas into policies.  The First Amendment, by protecting the marketplace and the transmission of ideas, thereby helps to protect the basic workings of democracy itself.  City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 142 S. Ct. 1464, 1476–77 (2022) (Breyer, concurring) (internal citations and quotation marks omitted).  In short, “[t]he First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  Meyer v. Grant, 486 U.S. 414, 421 (1988) (internal citation and quotation marks omitted).

Without a free marketplace of ideas, bad ideas flourish, unchallenged by competition. “[T]ime has upset many fighting faiths”; and “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]  That at any rate is the theory of our Constitution.”  Abrams, 250 U.S. at 630 (Holmes, J., dissenting).  With a free marketplace, however, people enjoy the liberty to be wrong—even as their mistaken ideas tend to get exposed.  For this reason, after the divisive presidential election of 1800, winner Thomas Jefferson urged toleration of dissenters.  Even those in favor of changing our form of government, he urged, should be left “undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”  First Inaugural Address (Mar. 4, 1801), https://bit.ly/42tAxUt.

Of course, neither Holmes nor Jefferson was the first to recognize that the best ideas emerge from the crucible of competition.  Thousands of years before the American republic, the Hebrew Bible observed that  “[t]he one who states his case first seems right, until the other comes and examines him.”  Prov. 18:17.   Much later, John Milton and John Stuart Mill would sound similar themes.  “Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’”  N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 n.19 (1964) (quoting Mill, On Liberty 15 (1947) and citing Milton, Areopagitica, Prose Works, Vol. II 561 (1959)).

In sum, “[t]he remedy for speech that is false is speech that is true.  This is the ordinary course in a free society.  The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”  United States v. Alvarez, 567 U.S. 709, 727–28 (2012) (plurality).  “And suppression of speech by the government can make exposure of falsity more difficult, not less so.  Society has the right * * * to engage in open, dynamic, rational discourse.  These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.”  Id. at 728.  “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”  Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Of course, the government itself may participate in the marketplace of ideas. Government agencies concerned about health or election misinformation may use social media platforms to broadcast their message.  Those agencies may even amplify and target their counter-speech through advertising campaigns tailored to those most likely to share or receive misinformation—including by creating their own apps or social media websites.

All these steps would combat alleged online misinformation in a way that promotes the marketplace of ideas rather than restricting it.  What is more, presidents may always directly use the bully pulpit to advocate their views.  Pet. Br. 24–25 (listing examples of presidential statements criticizing protected speech).  What the government may not do, as petitioners necessarily concede, is “use its authority to suppress contrary views.”  Id. at 23.  As the record shows, that is exactly what happened in this case.

Finally, protecting the marketplace of ideas from government interference of course does not guarantee that the best ideas win. To the contrary, the marketplace will still see a “good deal of market failure”—if success is measured by the truth winning out. Ronald Coase, The Market for Goods and the Market for Ideas, 64 Am. Econ. Rev. 384, 385 (1974).  But “that different costs and benefits must be balanced does not in itself imply who must balance them,” much less how the balance should be struck.  Thomas Sowell, Knowledge and Decisions 240 (1996).

In the First Amendment, the Founders struck the balance in favor of liberty.  However flawed an open marketplace of ideas may be, they decided, it is better than censorship.  “The liberal defense of free speech is not based on any claim that the market for ideas somehow eliminates error or erases human folly.  It is based on a comparative institutional analysis in which most state interventions make a bad situation worse.”  Roger Koppl, Expert Failure 217 (2018).

B.     As this Court instructs, it is especially crucial that the marketplace of ideas be uninhibited on matters of public health.

It is precisely this judgment of the Founders—that state interventions in the marketplace of ideas “make a bad situation worse” (Koppl, supra, at 217) —that petitioners here ignored.  White House officials pressured websites to take down “[c]laims that have been ‘debunked’ by public health authorities.”  J.A. 98.  So-called misinformation was itself dubbed an “urgent public health crisis.”  J.A. 113.  Indeed, said the Surgeon General, “misinformation poses an imminent threat to the nation’s health and takes away the freedom to make informed decisions.”  J.A. 125 (emphasis added).  These assertions are dead wrong—backwards even.  Public health is the last area in which the government should be deciding “which ideas should prevail.”  Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2375 (2018) (“NIFLA”).  “[T]his Court has stressed the danger of content-based regulations ‘in the fields of medicine and public health, where information can save lives.’”  Ibid. (quoting Sorrell, 564 U.S. at 566 (striking down statute restricting publication of pharmacy records)).

Several respondents here are professors of medicine at elite institutions who disagreed with the scientific judgments of government officials.  In other words, they were just the kind of professionals whose views the public needed “to make informed decisions.” J.A. 125.  Instead, the government pressured social media websites to suppress these professionals’ views, which the government at the time viewed as outside the mainstream.

“As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas[.]’”  NIFLA, 138 S. Ct. at 2374 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).  “Take medicine, for example.  Doctors help patients make deeply personal decisions, and their candor is crucial.”  NIFLA, 138 S. Ct. at 2374.  Yet “[t]hroughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities”:

For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients.  In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS. – Ibid. (quoting Thomas Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201–202 (1994) (footnotes omitted)).

None of this government interference makes sense if the goal is to discover the truth.  And that is the goal of the scientific enterprise:  to discover the truth by testing hypotheses.  The goal is not to follow the current consensus.  “The notion that scientists should agree with a consensus is contrary to how science advances—scientists challenge each other, ask difficult questions and explore paths untaken.  Expectations of conformance to a consensus undercuts scientific inquiry.  It also lends itself to the weaponization of consensus to delegitimize or deplatform inconvenient views, particularly in highly politicized settings.”  Roger Pielke, Jr., The Weaponization of “Scientific Consensus,” American Enterprise Institute (Feb. 5, 2024), https://bit.ly/3OBH3Tj.

We saw just this politicization during the recent pandemic.  “Reputable scientists and physicians have questioned—and in many cases debunked—the ‘official’ narratives on lockdowns, school closures, border testing, vaccine mandates, endless boosters, bivalent COVID shots, epidemic forecasting, natural immunity, vaccine-induced myocarditis, and more.  * * *  But it’s become untenable for those in charge to defend many of their initial positions.”  Matt Strauss, Marta Shaw, J. Edward Les & Pooya Kazemi, COVID dissent wasn’t always misinformation, but it was censored anyway, National Post (Mar. 1, 2023), https://bit.ly/3SQZ6Yb.  Yet that did not stop many of those in charge, in the meantime, from using government power effectively to censor dissenters.  That is what happened in this case.  As one liberal member of Congress said of the “lab leak” theory of COVID’s origin—itself a key exhibit in the shifting of accepted thinking about COVID—“If you take partisan politics and you mix that with science * * *, it’s a toxic combination.”  Sheryl Gay Stolberg & Benjamin Mueller, Lab Leak or Not? How Politics Shaped the Battle Over Covid’s Origin, New York Times (Mar. 19, 2023) (quoting U.S. Rep. Anna Eshoo).

In sum, “[p]rofessionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields.  Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.  ‘[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,’ and the people lose when the government is the one deciding which ideas should prevail.”  NIFLA, 138 S. Ct. at 2374–75 (quoting Abrams, 250 U.S. at 630 (Holmes, J., dissenting)).  The people lost here.

C.     A marketplace offering only government-approved ideas violates the rights of speakers and listeners, the overlooked “purchasers” in the marketplace.

The people’s loss is constitutionally cognizable.  As the “purchasers” in the marketplace of ideas, the people—including respondents here—were robbed of their First Amendment right to make informed decisions.  After all, the right to speak includes a “reciprocal” right to receive speech.  Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976); see First Amend. and Internet Law Scholars Am. Br., Moody v. NetChoice LLC, NetChoice LLC v. Paxton, Nos. 22-277, 22-555, at 4–5 (Dec. 6, 2023) (collecting authorities).  “To suppress free speech is a double wrong.  It violates the rights of the hearer as well as those of the speaker.  It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”  Frederick Douglass, Address: A Plea for Free Speech in Boston (1860), in Great Speeches by Frederick Douglass 48, 50 (2013) (quoted in First Amend. and Internet Law Scholars Am. Br, supra, at 4–5).

Stated differently, “[t]he First Amendment protects ‘speech’ and not just speakers.”  Eugene Volokh, Mark Lemley & Peter Henderson, Freedom of Speech and AI Output, 3 J. Free Speech L. 653, 656 (2023).  As a result, “th[is] Court has long recognized First Amendment rights ‘to hear’ and ‘to receive information and ideas.’”  Id. at 657 & n.11 (citing, among other cases, Kleindienst v. Mandel, 408 U.S. 753, 762–763 (1972) (“In a variety of contexts this Court has referred to a First Amendment right to receive information and ideas”) (internal quotation marks omitted); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”); Thomas v. Collins, 323 U.S. 516, 534 (1945) (“That there was restriction upon Thomas’ right to speak and the rights of the workers to hear what he had to say, there can be no doubt.”)).

Based on the record respondents have built, Missouri and Louisiana can likely show that petitioners have trampled on their right to “hear” and to “receive information and ideas” published by websites.  Volokh, supra, at 656–657; Resp. Br. 25–27.  And by the same token, respondent individuals will likely be able to show that they have been robbed of their right to hear other suppressed speakers, “whom [respondents] follow, engage with, and re-post on social media.”  Resp. Br. 22.  The judgment should be affirmed.

II.    Websites stock the online marketplace of ideas by exercising editorial discretion.

By effectively forcing websites to take down certain content, the government here “alte[red] the content of [the websites’] speech.”  NIFLA, 138 S. Ct. at 2371 (internal citation omitted).  Such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”  Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).  “This stringent standard reflects the fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  NIFLA, 138 S. Ct. at 2371 (internal citation and quotation marks omitted).  Nor is government control necessary in the competitive marketplace of ideas stocked by social media companies.

What distinguishes one site from another is what it publishes and refuses to publish. “[C]ontent moderation is the product.” Thomas Germain, Actually, Everyone Loves Censorship. Even You., GIZMODO (Feb. 22, 2023) (emphasis added), http://bit.ly/3Rge8pI.  As private participants in the marketplace of ideas, social media firms set their own editorial policies and choose which ideas to publish.  “The Free Speech Clause does not prohibit private abridgment of speech.”  Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (emphasis in original).  Even as they openly publish the speech of others, social media platforms do not “lose the ability to exercise what they deem to be appropriate editorial discretion,” because then they would “face the unappetizing choice of allowing all comers or closing the platform altogether.”  Id. at 1931.  In turn, users participate in the marketplace of ideas by choosing which social media website best meets their needs, including through its respective moderation policies.

Social media firms are what economists call “matchmakers” or “multi-sided” platforms.  David Evans & Richard Schmalensee, Matchmakers: The New Economics of Multisided Platforms 10 (2016).  “[M]atchmakers’ raw materials are the different groups of customers that they help bring together.  And part of the stuff they sell to members of each group is access to members of the other groups.  All of them operate physical or virtual places where members of these different groups get together.  For this reason, they are often called multisided platforms.”  Ibid.  Social media firms bring together advertisers and users—including both speakers and listeners—by curating third-party speech.  Curating speech well keeps users engaged so advertisers can reach them.

At times, keeping users engaged requires removing harmful speech, or even removing users who break the rules.  See David Evans, Governing Bad Behavior by Users of Multi-Sided Platforms, 27 Berkeley Tech. L.J. 1201, 1215 (2012).  But a social media company cannot go too far in restricting speech that users value.  Otherwise, users will visit the platform less or even abandon it for other companies in the “attention market”—which includes not only other platforms, but newspapers, magazines, television, games, and apps.  Facing the prospect of fewer engaged users, advertisers will expect lower returns and invest less in the platform.  Eventually, if too many customers flee, the social media company will fail.

Social media companies must also consider brand-conscious advertisers who may not want to be associated with perceived misinformation or other harmful speech.  To take just one example, advertisers reportedly left X after that company loosened its moderation practices.  Ryan Mac, Brooks Barnes & Tiffany Hsu, Advertisers Flee X as Outcry Over Musk’s Endorsement of Antisemitic Post Grows, N.Y. Times (Nov. 17, 2023).  In other words, platforms must strike a balance in their content-moderation policies.  This balance includes creating rules discouraging misinformation if such speech drives away users or advertisers.  As active participants in the marketplace, social media firms are best positioned to discover the best way to serve their users.  See Int’l Ctr. for Law & Economics Am. Br. at 6–11, Moody v. NetChoice LLC, NetChoice LLC v. Paxton, Nos. 22-277, 22-555 (Dec. 7, 2023).  As competition plays out, though, consumers can deliver surprises—and platforms must adjust.  This is the marketplace of ideas in action.

All these product changes happen without government intervention, which, again, would be forbidden in any event. After all, the First Amendment forbids any “abridg[ement]” of speech, no matter where that speech is “publish[ed]” or “disseminat[ed]”—including the online marketplace of ideas. Reno v. ACLU, 521 U.S. 844, 853 (1997); 303 Creative, 600 U.S. at 594.  The way a social media company adjusts to the market shows what it deems “deserving of expression, consideration, and adherence,” or “worthy of presentation.”  Turner, 512 U.S. at 641; Hurley, 515 U.S. at 575.  By forcing platforms to take down content, government coercion “alte[red] the content of [the platforms’] speech.”  NIFLA, 138 S. Ct. at 2371 (internal citation omitted).

When a company “exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity.”  Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1997).  “[E]ditorial control” encompasses the “choice of material,” “decisions made as to limitations on the size and content,” and “treatment of public issues[.]”  Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).  Any governmental “compulsion to publish that which reason tells them should not be published”—or vice versa—“is unconstitutional.”  Id. at 256 (internal citation and quotation marks omitted).

III. The online marketplace of ideas was impoverished by federal coercion here, and the Court should affirm the injunction insofar as it binds federal officials.

Although social media companies are private actors with a right to editorial discretion, the facts adduced so far in this case, if ultimately established, show coercion by federal officials, and not the exercise of discretion by websites. Relying on an extensive record, “the district court concluded that the officials, via both private and public channels, asked the platforms to remove content, pressed them to change their moderation policies, and threatened them—directly and indirectly—with legal consequences if they did not comply. And it worked—that ‘unrelenting pressure’ forced the platforms to act and take down users’ content.”  J.A. 16–17.

The Fifth Circuit agreed, holding that federal officials likely “ran afoul of the First Amendment by coercing and significantly encouraging social-media platforms to censor disfavored [speech], including by threats of adverse government action like antitrust enforcement and legal reforms.”  J.A. 32 (internal citations and quotation marks omitted).  In reaching this conclusion, the Fifth Circuit adopted a four-part test, ostensibly derived from Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), to tell when government actions aimed at private parties become coercive: “(1) the speaker’s word choice and tone; (2) “?whether the speech was perceived as a threat?”; (3) “?the existence of regulatory authority?”; and, “perhaps most importantly, (4) whether the speech refers to adverse consequences.”  J.A. 42 (internal citations and quotation marks omitted)

But the Fifth Circuit’s test falls short of the test applied in Bantam Books.  The focus of Bantam Books is not on the subjective understanding of the private actor, but on what the state actors objectively did—namely, was it reasonably understood as attempting to coerce private action.  The Bantam Books test is about the efforts of the state actor to suppress speech, not whether the private actor is in some hyper-literal sense “free” to ignore the state actor.  Surreptitious pressure in the form alleged by respondents is just as much an intervention into the marketplace of ideas as overt censorship.

Consider what happened in Bantam Books.  A legislatively created commission notified book publishers that certain books and magazines were objectionable for sale or distribution.  The commission had no power to sanction publishers or distributors, and there were no bans or seizures of books.  372 U.S. at 66–67.  In fact, the book distributors were technically “free” to ignore the commission’s notices.  Id. at 68 (“It is true * * * that [the distributor] was ‘free’ to ignore the Commission’s notices, in the sense that his refusal to ‘cooperate’ would have violated no law.”).  Nonetheless, this Court held, “the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.”  Id. at 67.  Particularly important was that the notices could be seen as a threat of prosecution.  See id. at 68–69 (“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around[.]  The Commission’s notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications[.]  It would be naive to credit the State’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation.”).

Ignoring this lesson of Bantam Books, petitioners focus on the subjective response of social media companies rather than the objective actions of the government.  Petitioners emphasize that media companies did not always censor speech to the degree that federal officials asked.  Br. 39.  But under Bantam Books, that is not the question.  The question is whether the government’s communications could reasonably be seen as a threat.  372 U.S. at 68–69.

They could.  Indeed, the allegations here include (a) many threats to have social media firms investigated, prosecuted, and regulated if they failed to remove disfavored speech, coupled with (b) extensive use of private meetings, emails, and digital portals to pressure firms to remove speech.  Resp. Br. 2–16.  As a result of this pressure, social media firms removed speech against their policies and changed their policies.  Ibid.  Much as in Bantam Books, government pressure suppressed lawful speech.

All this government coercion is a first-order infringement of speech and an impermissible intervention into the marketplace of ideas.  It also destroys the business model of social media websites.  As multisided platforms, these companies must carefully balance users, advertisers, and speech.  Government intervention disrupts this careful balance.  Again, the value proposition of social media websites is that they—as actors in the market—are best situated to curate forums attractive to their users.  Destroying these privately curated forums will chill speech for all Americans.  The Court should find that respondents are likely to succeed on the merits of their First Amendment claim.

As noted, the government is free to use the bully pulpit to persuade—and even to argue publicly that certain content on social media platforms is misinformation that should be demoted or removed. Pet. Brief 23–25 (listing examples of presidential statements criticizing protected speech).  But this does not mean the First Amendment allows coercing private actors into shutting down speech, which is what is shown by the facts adduced here.

The remedy for unlawful government coercion is an injunction against, or in specific cases, damages from, government actors. Here, the District Court and Fifth Circuit rightly focused the injunction against federal officials.  That was correct.  The marketplace of ideas, now freed from impermissible government intervention, leaves its participants free to exercise their editorial discretion as they see fit.  There is no need to enjoin private actors; and, indeed, doing so would undermine the same freedom of expression that enjoining coercive government actors protects.  On remand, the injunction should continue to make clear that social media companies may continue to engage in the marketplace of ideas by exercising editorial discretion.  But the government may not press its thumb on the scale by compelling them to censor.

CONCLUSION

The judgment should be affirmed.

[1] No party or counsel for a party authored this brief in whole or in part.  No one other than amicus or its counsel made a monetary contribution to fund preparation or submission of this brief.

Abstract

Standard accounts of why we have administrative agencies do little to account for those agencies’ ability to generate new information that can inform the regulatory process. Even expertise-based understandings of the administrative state limit the role of agencies to gathering information; and prevailing understandings of the administrative state view agencies as engaged in a policy-development exercise checked by theories of political accountability. This is unfortunate, because, for the same reasons that Congress turns to agencies to regulate in complex policy domains, agencies are typically in the best position to generate and make productive use of information that can inform the regulatory process and help Congress to accomplish its intended legislative goals.

This article offers a new account of how we can—and should—think about agencies’ use of information in the regulatory process: regulation as a discovery process. Drawing from economic understandings of how information is produced and used in both regulation and markets, it argues that using the regulatory process to generate information and ensuring that that information is both captured and productively used to improve regulations should be a priority for administrative law. In so doing, it contributes to a growing literature that argues for more experimentation in regulation and offers an account of the administrative state that is divergent from the interest group and presidential administrative models. Specific applications of these ideas are considered. These include how viewing regulation as a discovery process can resolve tensions in the Major Questions Doctrine and the use of an Executive Order to treat regulations as data-generating natural experiments.

Everyone knows Illinois is a blue state. The governor’s offce, the state House, the state Senate, the Chicago mayor’s office, the state Supreme Court, Cook County government and so on are all in the hands of Democrats. Of the 19 people who represent Illinois in Washington, 16 are Democrats.

Read the full piece here.

tl;dr

Background: Created by Congress in 1914, the Federal Trade Commission (FTC) has employed in-house administrative adjudications for more than a century. The agency’s constitutionality was challenged early in its existence, and upheld by the U.S. Supreme Court in its 1935 Humphrey’s Executor decision. Federal courts have, in the years since, been hesitant to invalidate an agency that has been functioning without issue for decades. 

But… Recent rulings in Seila (2020) and Axon (2023) have raised questions about the extent to which the Supreme Court would still recognize the agency’s legitimacy. In Seila, the Court held that Humphrey’s Executor applies only when an agency “do[es] not wield substantial executive powers.” In Axon, it held that federal courts can entertain constitutional challenges even while an administrative adjudication is pending. 

Such rulings have paved the way for challenges to the FTC’s constitutionality. Most notably, Meta filed a challenge in November 2023 after the FTC sought to use administrative adjudication to modify a 2020 consent decree. Amgen brought a similar challenge in response to merger proceedings, as did Walmart during anti-fraud proceedings. Six primary arguments have been raised against the FTC’s constitutionality.

KEY TAKEAWAYS

FTC COMMISSIONERS ARE INSULATED FROM PRESIDENTIAL REMOVAL

By statute, the president of the United States may remove commissioners of the FTC only “for inefficiency, neglect of duty, or malfeasance in office.” Humphrey’s Executor upheld this process, because the FTC was not deemed to exercise executive power. 

But the FTC has changed dramatically over the past century. In the 1970s, Congress broadened its authority to pursue injunctive relief in federal court and to seek civil penalties, which would typically be considered executive functions. The agency now functions primarily as an enforcer of laws, and much more rarely exercises its quasi-judicial and quasi-legislative powers.

In short, there is a question whether the FTC, in its current form and operations, violates the constitutional separation of powers.

THE FTC IS BOTH PROSECUTOR AND JUDGE

The FTC’s administrative-adjudication process has also raised constitutional questions. FTC staff may, following a preliminary screening, be authorized to investigate a potential violation of the law. That investigation, in turn, can lead commissioners to vote on whether to issue a complaint.

If it is not settled, the complaint is heard by an administrative law judge (ALJ) who, under recently revised agency process, issues a “recommended decision” to the commission. Previously, the ALJ would issue an “initial decision” that would stand unless the FTC or defendant sought review. 

The FTC then decides whether to accept, revise, or wholly replace the recommended decision with one of its own.  Serving as both a prosecutor and judge may violate the Fifth Amendment’s Due Process Clause.

IMPROPER DELEGATION OF LEGISLATIVE POWER

Congress enabled the FTC to decide whether to pursue adjudication in federal courts or within its own administrative process. But under the Constitution’s nondelegation doctrine, when Congress delegates any of its legislative powers, it must provide an “intelligible principle” for an agency to use that power. Some of the recent challenges argue there is no such principle governing which avenue the FTC pursues, rendering the delegation of powers unconstitutional. 

PRIVATE RIGHTS MUST BE ADJUDICATED IN ARTICLE III COURTS 

Among the broad powers conferred to the federal courts under Article III, Section 2 of the Constitution is exclusive jurisdiction to adjudicate private rights. But the FTC has been granted authority to hold administrative adjudications that can result in the deprivation of private rights (e.g., deprivation of property). Such proceedings may be unconstitutional. 

CIVIL PENALTIES WITHOUT A JURY TRIAL

The Seventh Amendment secures the right to jury trial whenever civil penalties exceed $20. This typically applies to deprivation of property rights, as well. But the FTC’s administrative adjudication does not provide for a jury trial. 

DISPARATE MERGER-REVIEW PROCESSES

Under the Hart-Scott-Rodino Act, mergers exceeding certain thresholds must be notified to both the U.S. Justice Department (DOJ) and the FTC. The agencies then follow a so-called “clearance” process to determine which will review the transaction. But the process is largely arbitrary, with some matters allocated based on one agency having more relevant experience, and some on a taking-turns basis.

Unlike the FTC, the DOJ can only challenge transactions before Article III courts, rather than in-house administrative proceedings. These alternative procedures have meaningful procedural and substantive differences. If that leads to disparate treatment, it may violate both the Fifth Amendment’s Equal Protection and Due Process clauses.

For more on this issue, see Daniel Gilman’s Law360 piece “Why Challenges To FTC Authority Are Needed.”

Interest of Amicus[1]

The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy center aimed at building the intellectual foundations for sensible, economically grounded policy. ICLE promotes the use of law and economics methodologies and economic learning to inform policy debates and has longstanding expertise evaluating law and policy.

ICLE has an interest in ensuring that First Amendment law promotes the public interest by remaining grounded in sensible rules informed by sound economic analysis. ICLE scholars have written extensively in the areas of free speech, telecommunications, antitrust, and competition policy. This includes white papers, law journal articles, and amicus briefs touching on issues related to the First Amendment and common carriage regulation, and competition policy issues related to alleged self-preferencing by Google in its search results.

Introduction

Google’s mission is to “organize the world’s information and make it universally accessible and useful.” See Our Approach to Search, Google (last accessed Jan. 18, 2024), https://www.google.com/search/howsearchworks/our-approach/. Google does this at zero price, otherwise known as free, to its users. This generates billions of dollars of consumer surplus per year for U.S. consumers. See Avinash Collis, Consumer Welfare in the Digital Economy, in The Global Antitrust Instit. Report on the Digital Economy (2020), available at https://gaidigitalreport.com/2020/08/25/digital-platforms-and-consumer-surplus/.

This incredible deal for users is possible because Google is what economists call a multisided platform. See David S. Evans & Richard Schmalensee, Matchmakers: The New Economics of Multisided Platforms 10 (2016) (“Many of the biggest companies in the world, including… Google… are matchmakers… [M]atchmakers’ raw materials are the different groups of customers that they help bring together. And part of the stuff they sell to members of each group is access to members of the other groups. All of them operate physical or virtual places where members of these different groups get together. For this reason, they are often called multisided platforms.”). On one side of the platform, Google provides answers to queries of users. On the other side of the platform, advertisers, pay for access to Google’s users, and, by extension, subsidize the user-side consumption of Google’s free services.

In order to maximize the value of its platform, Google must curate the answers it provides in its search results to the benefit of its users, or it risks losing those users to other search engines. This includes both other general search engines and specialized search engines that focus on one segment of online content (like Yelp or Etsy or Amazon). Losing users would mean the platform becomes less valuable to advertisers.

If users don’t find Google’s answers useful, including answers that may preference other Google products, then they can easily leave and use alternative methods of search. Thus, there are real limitations on how much Google can self-preference before the incentives that allowed it to build a successful platform unravel as users and therefore advertisers leave. In fact, it is highly likely that users of Google search want the integration of direct answers and Google products, and Google provides these results to the benefit of its users. See Geoffrey A. Manne, The Real Reason Foundem Foundered, at 16 (ICLE White Paper 2018), https://laweconcenter.org/wp-content/uploads/2018/05/manne-the_real_reaon_foundem_foundered_2018-05-02-1.pdf (“[N]o one is better positioned than Google itself to ensure that its products are designed to benefit its users”).

Here, as has been alleged without much success in antitrust cases, see United States v. Google, LLC, 2023 WL 4999901, at *20-24 (D. D.C. Aug. 4, 2023) (granting summary judgment in favor of Google on antitrust claims of self-preferencing in search results), the alleged concern is that Google preferences itself at the expense of competitors, and to the detriment of its users. See Complaint (“Google intentionally structures its Results Pages to prioritize Google products over organic search results.”). Ohio asks the court to declare Google a common carrier and subject it to a nondiscrimination requirement that would prevent Google from prioritizing its own products in search results.

The problem, of course, is the First Amendment. Federal district courts have consistently found that the First Amendment protects how providers structure search results. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029 (M.D. Fla., Feb. 8, 2017); Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D. N.Y., Mar. 28, 2014); Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007); Search King, Inc. v. Google Tech., Inc., 2003 WL 21464568 (W.D. Okla., May 27, 2003).

While Ohio and their amici argue that Google should be considered a common carrier, and thus be subject to a lower standard of review for First Amendment purposes, there is no legal basis for such a conclusion.

First, common carriage is a poor fit for Google’s search product. Courts have rejected monopoly power or being “affected with a public interest” as the proper prerequisites for common carrier status. Ohio, like other jurisdictions, has found that the “fundamental test of common carriage is whether there is a public profession or holding out to serve the public.” Girard v. Youngstown Belt Ry. Co., 134 Ohio St. 3d 79, 89 (2012) (emphasis added). See also Loveless v. Ry. Switching Serv., Inc., 106 Ohio App. 3d 46, 51 (1995) (“The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently and hence is regarded in some respects as a public servant.”) (internal quotations omitted). Google simply does not carry information in an undifferentiated way comparable to a railroad carrying passengers or freight. It is rather a service that explicitly differentiates and prioritizes answers to queries by providing individualized responses based upon location, search history, and other factors.

Second, as mentioned above, Google’s search results are protected by the First Amendment, and simply “[l]abeling” Google “a common carrier… has no real First Amendment consequences.” Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 825 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part). As this court stated, it is the nondiscrimination requirement sought by Ohio that is subject to First Amendment scrutiny, not the common carriage label itself. See Motion to Dismiss Opinion at 16. And any purported nondiscrimination requirement should be subject to strict scrutiny, as such a requirement would constrain Google’s own speech in the form of its carefully tailored search results, and not simply the speech of others.

Argument

1. Common Carriage Is a Poor Fit as Applied to Google’s Search Product

There is a long history of common carriage regulation in this country. But there has not always been universal agreement on what constitutes the defining feature of a common carrier, with proposed justifications ranging from monopoly power (or natural monopoly) to being affected by the public interest. Over time, though, courts and commentators, including Ohio courts, have agreed that common carriage is primarily about holding oneself out to serve the public indiscriminately.

Simply put, Google Search does not hold itself out to, nor does it actually serve, the public indiscriminately by carrying information, either from users or from other digital service providers. It provides individualized and tailored answers to users’ queries, which may include Google products, direct answers, or general information its search crawlers have learned about other service providers on the Internet.

A. Common Carriage Is Not About Monopoly Power or the Public Interest, It’s About Holding Oneself Out to Serve the Public Indiscriminately

In its complaint, Ohio makes much of Google’s market share in search. See Complaint para. 19-32. Amici also argue that the “immense market dominance” of Google makes it a common carrier analogous to telegraphs or telephones. See Claremont Amicus at 6. Similarly, both Ohio and amici argue that Google’s search results are affected by a public interest. See Complaint at 40; Claremont Amicus at 3-4.

Whatever the market share of Google search, common law courts, including those of Ohio, do not find monopoly power to be a part of the definition of common carriage. For instance, the presence of competition for innkeepers did not mean they were not subject to requirements to serve. See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1319-20 (1996) (“On the monopoly rationale, it is important to note that none of the antebellum cases bases the duty to serve on the fact of monopoly. Indeed, the presence of competition was never a reason for denying the duty to serve in the antebellum era. In many towns, there were several innkeepers and cities like Boston had dozens of innkeepers. Yet, no lawyer, judge, or treatise writer ever suggested that innkeepers in cities like Boston should be exempt from the duty to serve the public.”). Nor does the presence of monopoly necessarily lead to common carriage treatment under the law. See Blake Reid, Uncommon Carriage, at 25, 76 Stan. L. Rev., forthcoming (2024) (“[F]irms holding effective monopolies or oligopolies in a wide range of sectors, including pharmacies and drug stores, managed healthcare providers, office supply stores, eyeglass sellers, airlines, alcohol distribution, and even candy are not widely regarded or legally treated as common carriers.”). Accordingly, Ohio does not define common carriage in relation to monopoly power. Cf. Kinder Morgan Cochin LLC v. Simonson, 66 N.E. 1176, 1182 (Ohio Ct. App. 5th Dist. Ashland County 2016) (failing to mention monopoly as part of the definition of common carrier).

Moreover, while older cases and commentators cite the “affected with a public interest” standard, courts have moved away from it because of its indeterminacy. See Biden v. Knight First Amendment Inst., 141 S. Ct. 1220, 1223 (2021) (Thomas, J., concurring) (this definition is “hardly helpful, for most things can be described as ‘of public interest.’”). See also Christopher S. Yoo, The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy, 1 J. of Free Speech L. 463, 468-69 (2021).

Instead, the definition of common carriage under Ohio law is defined as holding itself “out to the public as ready and willing to serve the public indifferently.” See Kinder Morgan Cochin, 66 N.E. at 1182; Girard v. Youngstown Belt Ry. Co., 134 Ohio St. 3d 79, 89 (2012); Loveless v. Ry. Switching Serv., Inc., 106 Ohio App. 3d 46, 51 (1995).

B. Google Does Not Offer an Undifferentiated Search Product to Its Users

With this definition in mind, Google is not a common carrier. Google does not offer an undifferentiated service to its users like a pipeline (like in Kinder Morgan Cochin) or railroad (like in Girard or Loveless), or even like a mall offering an escalator to customers (like in May Department Stores Co. v. McBride, 124 Ohio St. 264 (1931)). Nor does it offer to “communicate or transmit” information of “their own design and choosing” to users. See FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (defining common carrier services in the communications context). Instead, it offers a tailored search result to its users. See Complaint at paras. 17-18 (noting that search results depend on location); How Search work with your activity, Google (last accessed Jan. 18, 2024), https://support.google.com/websearch/answer/10909618 (“When you search on Google, your past searches and other info are sometimes incorporated to help us give you a more useful experience.”). This is not a common carrier in the communications context. See Midwest Video, 440 U.S. at 701 (“A common carrier does not make ‘individualized decisions, in particular cases, whether on what terms to deal.’”) (quoting Nat’l Ass’n of Reg. Util. Comm’rs v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976)).

For instance, if a user searches for restaurants, Google’s algorithm may not only take into consideration the location of the user, but also whether the user previously clicked on particular options when running a similar query, or even if the user visited a particular restaurant’s website. While the results are developed algorithmically, this is much more like answering a question than it is transporting a private communication between two individuals like a telephone or telegraph.

Importantly, users often receive a different result even for the same search. See Why your Google Search results might differ from other people, Google (last accessed Jan. 18, 2024), https://support.google.com/websearch/answer/12412910 (“You may get the same or similar results to someone else who searches on Google Search. But sometimes, Google may give you different results based on things like time, context, or personalized results.”). Google is clearly making “‘individualized’ content- and viewpoint-based decisions” when it comes to search results. Cf. Moody v. NetChoice, 34 F.4th 1196, 1220 (11th Cir. 2022) (quoting Midwest Video, 440 U.S. at 701).

While the court emphasized at the motion to dismiss stage that a reasonable factfinder could find Google offers to hold itself out to the public in its mission “to organize the world’s information and make it universally accessible and universal,” see MTD Opinion at 7, this does not “change [its] status to common carrier[]… unless [it] undertake[s] to carry for all people indifferently.” Loveless, 106 Ohio App. 3d at 52. As the above facts demonstrate, there is no basis for finding that Google search offers an undifferentiated product to its users. The court should find Google is not a common carrier under Ohio law.

II. Google’s Search Results Are Protected by the First Amendment from Common Carriage Nondiscrimination Requirements

Ohio ultimately seeks to restrict the ability of Google to favor its own products in its search results. But this runs into a real constitutional problem: search results are protected by the First Amendment.

Moreover, as this court has previously found, the First Amendment scrutinizes not the label of common carriage, but the burdens which come with it. Here, the nondiscrimination requirement Ohio asks for is what is at issue.

This nondiscrimination requirement is inconsistent with the First Amendment. While this court thought it should be subject to intermediate scrutiny, the First Amendment requires strict scrutiny when speech is compelled. The cases cited by the court are inapposite when a speaker is delivering its own message, i.e. search results, rather than simply hosting speech of others.

A. Federal District Court Cases Establish Google Search Results Are Protected by the First Amendment

While no appellate court has considered the issue, several federal district courts have recognized search engines have a First Amendment interest in their search results. Some decisions have framed the results themselves as speech. Others have considered the issue as one of editorial judgment. But under either approach, Google Search results are protected by the First Amendment.

For instance, in Jian Zhang v. Baidu.com, 10 F. Supp. 3d 433 (S.D. N.Y. Mar. 28, 2014), the court found that the application of a New York public accommodations law to a Chinese search engine that “censored” pro-democracy speech is inconsistent with the right to editorial discretion. The court found that “there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation.” Id. at 438.  The court noted that “the central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later).” Id.  Other courts have similarly found search engines have a right to editorial discretion over their results. See also e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *4 (M.D. Fla. Feb. 8, 2017); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007).

In this sense, Google’s search results are analogous to the decisions of what to print made by the newspaper in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), or the parade organizer in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995).

At least one court has found that search results themselves are protected opinions. In Search King Inc. v. Google Technology, Inc., 2003 WL 21464568, at *4 (WD. Okla. May 27, 2003), the court found that search results “are opinions—opinions of the significance of particular web sites as they correspond to a search query. Other search engines express different opinions, as each search engine’s method of determining relative significance is unique.”

Under this line of reasoning, Google’s responses to queries are opinions directing users to what it thinks is the best answer given all the information it has on the user, her behavior, and her preferences. This is in itself protected speech. Cf. Eugene Volokh & Donald M. Falk, Google: First Amendment Protection for Search Results, 8 J. L. Econ. & Pol’y 883, 884 (2012) (“[S]earch engines are speakers… they convey information that the search engine has itself prepared or compiled [and] they direct users to material created by others… Such reporting about others’ speech is itself constitutionally protected speech.”).

In sum, the First Amendment protects Google’s search results.

B. A Common Carriage Label Does Not Change First Amendment Analysis

Amici argued that because Google is a common carrier, the nondiscrimination requirement is merely an economic regulation that is not subject to heightened First Amendment scrutiny. See Claremont Amicus at 17. But the issue here is not simply the label of common carriage, it is the regulatory scheme sought by Ohio. Cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 825 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part) (“Labeling leased access a common carrier scheme has no real First Amendment consequences.”); MTD Opinion at 16 (“As for the State’s request for declaratory relief, merely declaring or designating Google Search to be a common carrier does not, of itself, violate the First Amendment or infringe on Google’s constitutional speech rights…. It is the burdens and obligations accompanying that designation that implicate the First Amendment.”).

In other words, when reviewing the nondiscrimination requirement sought by Ohio, the labeling of this as a common carriage obligation does not matter under the First Amendment.

C. The Nondiscrimination Requirement Should be Subject to Strict Scrutiny

Ohio and amici have characterized the nondiscrimination requirement that comes with common carriage as a content-neutral requirement to host the speech of others. See MTD Opinion at 16; Claremont Amicus at 15, 17. This court agreed that this was possible at the motion to dismiss stage. But the remedy sought is not content-neutral, nor is it dealing purely with the speech of others. As a result, it should be subject to strict scrutiny.

This court found that a “restriction of this type must satisfy intermediate scrutiny” as a “content-neutral restriction on speech.” MTD Opinion at 16. The court compared the situation to Turner Broadcasting System Inc. v. FCC, 512 U.S. 622 (1994). But the nondiscrimination requirement is clearly content-based.

Ohio is asking this court to enjoin Google from prioritizing its own products in its search results. See Complaint at para. 77. The only way to know whether Google is doing that is to consider the content of its search results. See, e.g., Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”). The idea or message expressed here is that Google’s products would be a better answer to an inquiry than another. By definition, the nondiscrimination requirement is a content-based regulation of speech, and must therefore be subject to strict scrutiny.

Nor is this just an issue of the speech of others. This court stated that “infringing on a private actor’s speech by requiring that actor to host another person’s speech does not always violate the First Amendment.” MTD Opinion at 17. The court cited PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2007), and Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). But none of these cases deals with a situation analogous to applying nondiscrimination requirements to Google’s search results.

Here, as explained above, Google’s search results are themselves protected speech. Collectively, each search result is Google’s opinion of the best set of answers, in the optimal order, to questions provided by users to Google. Requiring Google to present different results, or results in a different order, or with different degrees of prioritization would impermissibly compel Google to speak, similar to requiring car owners to display license plates saying “Live Free or Die,” see Wooley v. Maynard, 430 U.S. 705 (1977), or forcing a student to stand for the Pledge of Allegiance, see West Virginia State Bd. of Educ. V. Barnette, 319 U.S. 624 (1943). It is, in short, impossible to require “Google [to] carr[y] all responsive search results on an equal basis,” Complaint at 5, without compelling it to speak in ways it does not choose to speak.

Even if Google’s interest in its search results is characterized as editorial discretion over others’ speech rather its own speech (a dubious distinction), this would still be distinguishable from the above cases. Google is clearly identified with its results by users, unlike the shopping center with its customers in PruneYard or the law schools with military recruiters in FAIR. See Complaint at paras. 48-50 (alleging that Google was built on expectations from users that the search algorithm was in some way neutral). This is especially the case when Google is, as alleged, prioritizing its own products in search results. See id. at paras. 64-70. Google clearly believes, and its users appear to agree, that these products are what its users want to see. See Complaint at 2 (“Google Search is perceived to deliver the best search results…”). Otherwise, those users could just use another service. Cf. Zhang, 10 F. Supp. 3d at 441 (a user dissatisfied with search results can just use another search engine).

Notably, this stands in contrast to the court’s characterization of the speech at issue. See MTD Opinion at 19-20 (“When a user searches a speech by former President Donald Trump on Google Search and that speech is retrieved by Google with a link to the speech on YouTube, no rational person would conclude that Google is associating with President Trump or endorsing what is seen in the video.”). It is not the content of the links that users associate with Google, but the search results themselves, which includes the order in which each link is presented, the presentation of certain prioritized results in a different format, and the exclusion or deprioritization of certain results Google thinks the user will not find relevant. A search engine is more than a “passive receptacle or conduit” for the speech of others; the “choice of material” and how it is presented in its search results “constitute the exercise of editorial control and judgment.” Tornillo, 418 U.S. at 258.

In sum, the reasons for subjecting must-carry provisions in Turner to intermediate scrutiny do not apply here. First, the nondiscrimination requirement sought by Ohio is not content-neutral; indeed, it is precisely Ohio’s dissatisfaction with the specific content Google provides that impels its proposed law. Cf. Turner, 512 U.S. at 653-55 (emphasizing the content-neutrality of the must-carry requirements). Second, Google must alter its message in its search results due to the regulation, as it is expressing a clear opinion that its own products are the best answer—an answer with which Google is identified and which distinguishes it from its search engine competitors. Cf. id. at 655-56 (finding the must-carry requirements would not force cable operators to alter their own messages or identify them with the speech they carry). Third, Google does not have the ability to prevent its users from accessing information, whether from other general search engines, specialized search engines, or just typing a website into the browser. Cf. Turner, 512 U.S. at 656 (“When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper control over most (if not all) of the television programming that is channeled into the subscriber’s home… A cable operator, unlike other speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.”). Absent these countervailing justifications for intermediate scrutiny in Turner, Ohio’s nondiscrimination requirement must be subject to strict scrutiny.

Finally, while it is true that economic regulation like antitrust law can be consistent with the First Amendment, see Claremont Amicus at 17 (citing Associated Press v. United States, 326 U.S. 1, 20), that does not mean every legal restriction on speech so characterized is constitutional. For instance, in Associated Press, the Supreme Court found the organization in violation of antitrust law, but in footnote 18 disclaimed the power to “compel AP or its members to permit publication of anything which their ‘reason’ tells them should not be published.” Associated Press, 316 U.S. at 20, n. 18. The Court echoed this in Tornillo to argue that the remedy sought by Florida’s right-to-reply law was unconstitutional government compulsion of speech that would violate the newspaper’s right to editorial discretion. See Tornillo, 418 U.S. at 254-58. Restricting Google’s right to editorial discretion over its search results is similarly unconstitutional.

Conclusion

Ohio’s attempted end-run of competition law and the First Amendment by declaring Google a common carrier must be rejected by this court. Google is not a common carrier. And the nondiscrimination requirement requested by Ohio is inconsistent with the First Amendment.

[1] Amicus state that no counsel for any party authored this brief in whole or in part, and that no entity or person other than amicus and its counsel made any monetary contribution toward the preparation and submission of this brief.

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality of the Federal Trade Commission’s (FTC) current structure. Other subjects tackled include South Korea’s law imposing internet costs on content providers, the Biden Federal Communications Commission’s first two months with a majority, the race to 5G, and the FTC’s last-ditch appeal to stop the Microsoft-Activision merger. Audio of the full episode is embedded below.

Through our excellent counsel at Yetter Coleman LLP, the International Center for Law & Economics (ICLE ) filed an amicus brief with the U.S. Supreme Court in the Moody v. NetChoice and NetChoice v. Paxton cases. In it, we argue that the First Amendment’s protection of the “marketplace of ideas” requires allowing private actors—like social-media companies—to set speech policies for their own private property. Social-media companies are best-placed to balance the speech interests of their users, a process that requires considering both the benefits and harms of various kinds of speech. Moreover, the First Amendment protects their ability to do so, free from government intrusion, even if the intrusion is justified by an attempt to identify social media as common carriers.

Read the full piece here.