ICLE Amicus to Ohio 5th District Court of Appeals in Ohio v Google
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
The Court of Common Pleas for Delaware County correctly ruled on summary judgment that Google was not a common carrier. Order at 15. The court found it especially important that Google does not transport property for others, as internet service providers (ISPs) are the ones that transport requested data, not Google. Id. at 12 (“It is undisputed that, without an ISP, Google Search could not deliver any search results in response to a user’s inquiry.”). The court also found that Google offers individualized results in response to search queries. Id. at 14 (“Google does not hold itself out as carrying indifferently. Rather, Google proclaims it differentiates in what it delivers—search results.”). Because the court found Google was not a common carrier, it did not consider the First Amendment question. See id. at 15.
Ohio, like other jurisdictions, has found that common carriage applies when an entity holds itself out to serve the public by carrying persons or property indifferently. See Columbus Cincinnati Trucking Co. v. Pub. Utilities Comm’n, 141 Ohio St. 228, 231-32 (1943) (“A common carrier is one who holds himself out to the public as engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally . . . [and] he undertakes to carry for all people indifferently”). Google simply does not carry information in an undifferentiated way comparable to a railroad carrying passengers or freight. It creates an expressive product (a search result) that explicitly differentiates and prioritizes answers to queries by providing individualized responses based upon location, search history, and other factors.
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 Dec. 16, 2025), 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.
The incredible deal that Google offers its users is possible because Google is what economists call a multisided platform—and it is this very fact which fundamentally undermines Ohio’s position. 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 at 3 (“Google intentionally structures its Results Pages to prioritize Google products over organic search results.”). In its complaint, Ohio seeks a declaration that Google is a common carrier subject to a nondiscrimination requirement that would prevent Google from prioritizing its own products in search results. The Court of Common Pleas below correctly found Google is not a common carrier.
Both the common carriage and First Amendment analysis of Google’s search product turn on this fundamental question: is it “customized or tailored speech” or is it an “ordinary commercial good”? 303 Creative LLC v. Elenis, 600 U.S. 570, 593 (2023) (internal quotations omitted); see also Moody v. NetChoice, 603 U.S. 707, 725-26 (distinguishing between “[c]urating a feed and transmitting direct messages,” stating “one creates an expressive product and the other does not”); FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (defining the common carrier question in the communications context as whether the industry “communicate[s] or transmit[s]” information of “their [users’] own design and choosing”). Google’s search results are plainly customized and tailored speech, an expressive product, and not simply communicating or transmitting information of their users’ own design and choosing. Therefore, it is not a common carrier as to search, precisely because it is engaging in First Amendment-protected activity. Cf. Jian Zhang v. Baidu.com, 10 F. Supp. 3d 433 (S.D. N.Y. Mar. 28, 2014); 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); Search King Inc. v. Google Technology, Inc., 2003 WL 21464568, at *4 (WD. Okla. May 27, 2003); 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.”).
Accordingly, this court should affirm the Court of Common Pleas because both the law of common carriage and the First Amendment demand such a result.
Argument
I. The First Amendment Protects Expressive Products from Common Carrier Obligations
Ohio law makes clear that common carriage turns on whether an entity (1) carries persons or property, and (2) holds itsef out to serve the public indifferently. See Columbus Cincinnati Trucking Co. v. Pub. Utilities Comm’n, 141 Ohio St. 228, 231-32 (1943) (“A common carrier is one who holds himself out to the public as engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally . . . [and] he undertakes to carry for all people indifferently.”). These elements reflect a traditional transportation paradigm in which the carrier offers uniform service that does not create a differentiated product and merely moves goods or persons from point to point.
Google’s services fail each prong. First, Google does not “carry” persons or property at all: ISPs transport the bits, while Google generates an informational product of its own. Cf. Republican Nat’l Comm. v. Google, Inc., 2023 WL 5487311, at *9 (E.D. Cal. Aug. 24, 2023) (“Unlike a traditional mail service, email services, like Google’s Gmail, do not ‘carry’ messages; they receive and store messages, and make them available for retrieval by the user after the message has been shuttled through the email protocol.”). Second, Google does not hold itself out to serve the public indifferently; it expressly promises differentiated, personalized, and ranked answers tailored to each user. Because Google’s service does not satisfy even the threshold elements of Ohio’s common-carrier test, it cannot be considered a common carrier under Ohio law, independent of any First Amendment considerations.
By contrast, common carriage is easy enough to picture when it comes to the railroad or a pipeline: a train or pipeline system promises to carry persons or commodities from point A to point B. Sure enough, most of Ohio’s major common carrier cases deal with these situations. See, e.g., Kinder Morgan Cochin LLC v. Simonson, 66 N.E. 1176 (Ohio Ct. App. 5th Dist. Ashland County 2016); Girard v. Youngstown Belt Ry. Co., 134 Ohio St. 3d 79, 89 (2012); Loveless v. Ry. Switching Serv., Inc. 106 App. 3d 46, 51 (1995).
But it is nonetheless noteworthy that 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 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.” Midwest Video, 440 U.S. at 701; see also Verizon v. FCC, 740 F.3d 623, 651 (D.C. Cir. 2014) (identifying “the basic characteristic” of common carriage is the “common law requirement of holding oneself out to serve the public indiscriminately”) (quoting Nat’l Ass’n of Regulatory Utility Comm’rs v. FCC, 525 F.2d 630, 642 (D.C. Cir. 1976)). It does not “make individualized decisions, in particular cases, whether and on what terms to deal.” Midwest Video, 440 U.S. at 701 (quoting Nat’l Ass’n of Regulatory Utility Comm’rs, 525 F.2d at 641). In other words, there is a difference between transmitting messages on behalf of consumers, like telecommunications providers, and selecting content for transmission or publication, like a cable operator or newspaper. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994); Miami Herald Pub. Co. v. Tornillo, 481 U.S. 241 (1974).
Similarly, under the First Amendment, the Supreme Court has held “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.” Moody, 603 U.S. at 731. In Moody, the Court distinguished between “[c]urating a feed and transmitting direct messages,” stating that “one creates an expressive product and the other does not.” Id. at 725-26. Similarly, in 303 Creative LLC v. Elenis, the Court distinguished between an “ordinary commercial good” and “customized and tailored speech.” 303 Creative, 600 U.S. at 593 (internal quotations omitted). The level of creativity is important to distinguishing the two. See also Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617, 624 (2018) (“If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.”).
In each of these cases, the Court was grappling with how to apply the law of common carriage (Moody), public accommodations (303 Creative), and antidiscrimination (Masterpiece Cakeshop) in the First Amendment context. Fundamentally, the Court had to determine whether the product or service involves creative expression or is basically a commodity. Is it a cake (or website) made special for a wedding? Or is it a pre-made cake off the shelf?
In this way, the tests for common carriage and First Amendment protection substantially overlap. If an entity creates an “expressive product” rather than simply transmits the speech of others, then that entity is not only not a common carrier but also protected by the First Amendment. Common carriers that engage in the “neutral transmission of others’ speech” can be subject to common carrier obligations “without raising any First Amendment questions.” US Telecom Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016). But if an entity does “exercise editorial discretion… it might then qualify as a First Amendment speaker.” Id. at 743. See also US Telecom Ass’n v. FCC, 855 F.3d 381, 389 (D.C. Cir. 2017) (Srinivasan, J., concurring in denial of en banc hearing) (“While the net neutrality rule applies to those ISPs that hold themselves out as neutral, indiscriminate conduits to internet content, the converse is also true: the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of ‘editorial intervention.’”).
Thus, while the Court of Common Pleas declined to reach the First Amendment question, it is apparent that the underlying logic of whether Google’s search product can be subject to common carrier obligations depends on whether Google is creating its own speech product. If Google’s search product is expressive, then it can’t be subject to common carriage requirements. Ohio cannot circumvent the First Amendment simply by re-labeling expressive, editorial activity as common carriage.
II. Google’s Search Results are a Protected Expressive Product
The Court of Common Pleas was correct: “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.” Order at 11. This is to say that Google produces a customized, ranked compilation of information, not a neutral transmission of user-selected content. This alone differentiates it from railroads and pipelines (and other carriers), as Google does not carry even similar answers to every user in response to a particular query. Id. at 11-12. The Court was also right to note that “Google exercise judgments about crawling, indexing, and ranking webpages” and “[w]hen a user makes a query, Google creates and returns a unique” result. Id. at 13. This means it does not offer an undifferentiated service to the public, but its own unique expressive product. Id. at 14 (“So even if Google were transporting a product of ‘information,’ that product would be one Google itself has designed.”).
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. See Order at 6 (“A variety of user-specific factors affect the content and presentation that Google chooses to include… including the user’s location, the time of day that user submits the query, the user’s immediate prior queries…”). 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.
The record shows that Google is clearly making editorial decisions when it comes to search results, meaning that it is creating its own expressive product. Moody, 603 U.S. at 731 (“Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the include items—is expressive activity of its own. And that activity results in a distinctive expressive product.”). It is no surprise that federal courts even before the Moody decision found search results are protected by the First Amendment. See, e.g., Jian Zhang v. Baidu.com, 10 F. Supp. 3d 433 (S.D. N.Y. Mar. 28, 2014); Worldwide, LLC v. Google, Inc., 2017 WL 2210029 (M.D. Fla. Feb. 8, 2017); Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007); Search King Inc. v. Google Technology, Inc., 2003 WL 21464568 (WD. Okla. May 27, 2003).
For instance, in Jian Zhang, 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.” 10 F. Supp. 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. See also Worldwide, LLC, 2017 WL 2210029, at *4; Langdon, 474 F. Supp. 2d at 629-30.
Another federal court found search results themselves are protected opinions. In Search King, 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.” 2003 WL 21464568, at *4. In other words, 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 protected First Amendment activity. 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, Google’s search results are protected by the First Amendment. Collectively, each search result is Google’s opinion of the best set of answers, curated 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. Cf. Moody, 603 U.S. at 731-732 (“When the government interferes with such editorial choices… it alters the compilation.”). The remedy sought by Ohio is a content-based restriction that should be subject to strict scrutiny, which it cannot survive.
Ohio cannot justify common carriage obligations on the ground that it would be a better search result. See id. at 732-33 (“[T]he government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas… in case after case, the Court has barred the government from forcing a private speaker to present views it wishes to spurn in order to rejigger the expressive realm.”). 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. This would clearly violate the First Amendment.
Conclusion
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.
[1] Amici state that no counsel for any party authored this brief in whole or in part, and that no entity or person other than amici and their counsel made any monetary contribution toward the preparation and submission of this brief. All parties consent to the filing of this brief.