Twitter recently filed an arrogant lawsuit against Texas Attorney General Ken Paxton, claiming to be a publisher making editorial decisions, as if Twitter’s 70 million US users submitted to Twitter’s policy on all topics discussed on twitter. Before this lawsuit, Twitter had called itself a communication utility or channel. This article does not discuss the legal fallacies and factual errors in the complaint. However, one thing that caught my attention is that Twitter cited the influential case Zhang v. Baidu (Federal District Court for SDNY, 2014), in which the court ruled in favor of Baidu. This decision brings us to a stealthy PR campaign, which Google ran in 2011-2014.
This campaign was designed to convince judges and attorneys that Google’s search engine is not a communication or computational service, as it was presented to users, but a non-commercial speech, protected under the First Amendment. As part of this campaign, Google funded respected academics in order to publish scholarly literature supporting Google’s position. Surprisingly, even experienced judges missed Google’s involvement, and mistook this advocacy for bona fide legal scholarly work.
Courts made decisions based on the Google-funded advocacy, mistaking it for bona fide academic work. For example, in the Zhang v. Baidu court noted that “The question of whether search-engine results constitute speech protected by the First Amendment has been the subject of vigorous academic debate. … By contrast, it has garnered relatively little attention from courts.” The decision was largely based on Volokh & Falk, Google First Amendment Protection for Search Engine Search Results, which was cited 12 times, despite the conspicuous disclaimer in the paper that it had been commissioned by Google!
Needless to say, not all Google-funded papers carried a disclaimer. For example, another cited work was What Happens if Data Is Speech? (2014) by Prof. Blackman, an Adjunct Scholar at the CATO Institute, which received funding from Google at that time. This connection was not disclosed in the paper, although there are grounds to believe that Google’s funding was specifically directed toward this advocacy.
Google’s payouts to influence academia garnered attention in the past. Google’s insidious shadow lobbying: How the Internet giant is bankrolling friendly academics—and skirting federal investigations (Salon 2015) deserves reading in whole. Among its points:
“While under investigation in 2011, Google made major contributions to influential academics, documents reveal”
“A professor at George Mason and author of many pro-Google studies, Joshua Wright, even later became an FTC Commissioner.”
“Google’s actions between 2011 and 2013 show how they dodge legal bullets: by molding elite opinion, using the support of experts and academics as a firewall against criticism. ”
“But the academic funding machine may be even more insidious [than open lobbying], a stealth form of lobbying wrapped in the guise of “independent” research.”
“The $25,000 donation went to ‘support the Attorneys General Education Program’”
Of course, a web search can be expressive speech, protected by the First Amendment. However, the publisher of an editorially curated web search should make this clear to the users and accept the responsibility of a publisher for editorial decisions. Otherwise, the whole thing falls under Section 230, which explicitly states that the provider shall not “be treated as the publisher or speaker,” and thus falls outside of First Amendment protections. Of course, such an editorial search engine service would not have many users, and would never become market dominant. Google search is a service, much like an automobile diagnostic service, not First Amendment speech.