Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google

This is a crazy case. Ohio AG Yost claims that Google’s search engine is a common carrier and a public utility. Nominally, his goal is to redress Google self-preferencing, but that’s a transparently pretextual excuse to censor search results and wow #MAGA voters. It’s all fun and games until the rule of law gets broken, and this opinion takes us down a scary path by rejecting Google’s motion to dismiss the common carrier claim.

Common Carrier

The court enumerates the statutory requirements to qualify as a common carrier. The court says:

there must be a “public profession or holding out to serve the public.” In that regard, the State has alleged that Google’s stated mission is to “organize the world’s information and make it universally accessible and usable.” A reasonable factfinder could conclude this unsolicited admission by Google, if true, satisfies such a standard.

(Yes, the whole opinion is like this–the judge credulously accepting arguments that even a 1L wouldn’t make).

First, Google’s motto is puffery. It doesn’t promise anything. It’s certainly not an “admission” about serving the public. Second, Google doesn’t seek to organize ALL of the world’s information; it only organizes the information that meets its editorial standards. Thus, Google is not “holding out” its search engine to “serve the public,” because Google never promises to index all of the public’s information. Nevertheless, the court says Google cannot explain its editorial policies on a motion to dismiss. A less credulous judge would have nevertheless scrutinized the AG’s assertions more carefully.

The opinion then discusses how Google’s search engine can be a “common carrier” when it doesn’t “carry” anything. The judge, stroking his chin philosophically, says that’s an interesting question:

Herein lies the difficulty in applying 18th century common law to 21st century technology and commerce. In the internet age, information is often as valuable as goods. From telegraph, land-line telephones, cable television, and cellular telephones, the law of what is transported and how it is transported has developed over time. The State has alleged that Google carries information. For purposes of the present posture, the State’s allegations are sufficient.

No, this is not some never-previously-considered epistemological question about Internet exceptionalism. If you’re going to say that search engines–using robot-driven indexing and algorithmic sorting–are the equivalent of 19th century railroads or water pipes, you need to be able to explain, clearly and decisively, exactly what is being “carried,” by whom, how, and why. AG Yost says Google is carrying something, and this credulous judge says “good enough!” Unbelievable.

Google also argued that it’s not being hired or paid by searchers. The court finds a way around this too:

The State has alleged that in lieu of charging a fee directly to its users, Google collects each user’s data, which is then monetized by selling targeted ad space to its advertisers. An inference may fairly be drawn from the allegation that when a user enters a query on Google Search, it is entering into some sort of understanding or agreement-express or implied-with Google whereby in return for entering a search query, which undoubtedly has some value to Google, the user is providing his location, search, and other data pursuant to a terms-of-service document. The parties discuss at length how Google Search works-what is being carried, who is sending it, how the algorithm works, and other like issues. How Google Search functions and the structure and operations of its business are evidentiary issues that could have a strong bearing on the question of whether Google Search is a common carrier.

To me, this re-raises the questions I asked about “carrying.” Search engines are two-sided markets, mediating between searchers and publishers. In terms of the common carriage doctrine, is Google serving searchers, indexed publishers, both, or neither? By sidestepping that key question, it’s not clear which “public” the court thinks Google is “serving.”

The court concludes:

The question remains then whether Google’s search function, as a private business, affects the public concern to such an extent that it should be declared a common carrier. The Court believes, at this stage of the proceeding, that the State should have the ability to take discovery, develop its case, and present evidence to support its claim.

Ohio’s economy thanks the judge for its legal industry’s economic windfall. #MOGA.

Public Utility

The court dismisses the claim that Google is a public utility. The court says: “Ohio law expressly excludes providers of information services, like Google, from regulation by the Public Utilities Commission of Ohio (PUCO). While an entity may be a public utility outside of PUCO regulation, the State has not cited to any other potential source of law by which Ohio regulates Google.”

Section 230 makes a surprise appearance: “The fact that Google falls within Section 230 of the Telecommunications Act of 1996, does not suggest Google is a public utility under Ohio law. That provision merely provides Google with immunity in certain specific instances. It does not concern regulation of public utilities.” Another failed #MAGA attempt to weaponize and wreak havoc on Section 230.

The court also explains how search engines cater to higher parts of Maslow’s hierarchy than typical utility services like water or electricity:

the public has no legal right to demand Google’s search engine….The lack of regulation means that Google is free to stop providing its search platform whenever it chooses. It could choose to focus on other parts of its company, or-as unlikely as it may seem-go out of business entirely. Google needn’t give notice or reason before doing so….While Google Search is inarguably convenient and often used, it does not provide a fundamental life-essential service that the public has a right to demand and receive. Google Search barely existed two decades ago.

even though Google Search has a 90 percent market share according to the State’s Complaint, were Google Search to cease operating, Google’s competitors, like Bing, Ask, and Duck Go [sic], would undoubtedly fill the void left by Google’s departure. The minimal inconvenience of leaving users to type the web address of a different search engine into their search bars is not equivalent to the significant harm faced by the public if the local water company shuts down its pipes or the local electric company powers down the grid.

SHOUTOUT TO THE ASK SEARCH ENGINE! Note to the judge: Ask stopped maintaining its own search index in 2010. Following that, Google powered Ask’s search results and may still do so. Seeing the Ask.com shoutout proves the judge’s cutting-edge understanding of the search engine market.

The First Amendment

The court then addresses the First Amendment defenses to the common carrier claim. To be clear, AG Yost is seeking common carriage status because he wants to control how search engines publish content, which violates the First Amendment. Numerous opinions–all ignored by the court–have said the First Amendment protects the editorial discretion of search engines, including Search King, Inc. v. Google Technology, Inc., 2003 WL 21464568 (W.D. Okla. 2003); Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007); Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014); Google, Inc. v. Hood, 96 F. Supp. 3d 584 (S.D. Miss. 2015) (vacated on other grounds); e-ventures Worldwide v. Google, Inc., 2017 WL 2210029 (M.D. Fla. 2017); see also Eugene Volokh & Donald M. Falk, First Amendment Protection For Search Engine Search Results, April 20, 2012. Instead of engaging with two decades of precedent, the judge proceeds as if he’s the first court to consider this question.

The court starts out with this truism:

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. After all, that mere designation does not inhibit speech. It is the burdens and obligations accompanying that designation that implicate the First Amendment

OK, I guess. But what’s the point of the common carriage designation if not to enable censorship of search engines? The court isn’t sure: “It is presently unknown what exactly the attendant duties on Google Search might be if it is declared to be a common carrier.” A non-credulous judge would surely require the state to answer definitively this essential question (what legal consequences attach to common carrier status?) before ordering discovery.

Citing Turner, the court says that “a positive injunction directed toward Google Search’s duties” triggers intermediate scrutiny. Ugh. I’m always irritated when Turner is invoked as the applicable precedent for Internet content publication because it requires a warped legal analysis to get there. First, Turner is a cable TV case, and the cable industry has a vastly different industry architecture than, say, search engines. Second, if we’re talking cable, then let’s also talk about Halleck, which the court doesn’t do. Third, the Turner case predated the Reno v. ACLU opinion, which said that the Internet does not get the reduced First Amendment scrutiny that applies to telephones or broadcasters (and, by implication, cable). Fourth, consistent with Reno, the two decades of precedent applying the First Amendment specifically to search engines applied strict scrutiny. So the court reaches intermediate scrutiny only by dubiously cherry-picking precedent and ignoring a big stack of precedent pointing towards strict scrutiny.

Based on the improperly reduced standard of scrutiny, the court says:

The United States Supreme Court has repeatedly held that fostering competition in the marketplace is an important interest of the state. It is possible that discovery will show that the burdens accompanying common-carrier status, while inhibiting free speech, further that important governmental interest.

Courts have held 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. (Cites to PruneYard, FAIR, Red Lion, & more)

Wow, that’s a LOT of deference to the state’s arguments. Given that search is a two-sided market, I’m still not sure which “marketplace” that Ohio is trying to foster “competition” in (and common carriage is usually a counterproductive way to increase competition). Also, remember that AG Yost said the harms were Google self-preferencing, and that’s diffrent than “hosting” third-party speech. Preferencing is about promotion, not hosting, which PruneYard and FAIR didn’t address. PruneYard doesn’t tell the shopping centers where they have to locate the protesters, and FAIR doesn’t require law schools to give equal prominence to the disfavored recruiters when telling students which employers are coming to OCIs.

The court does acknowledge some adverse precedent:

the compelled speech in [Hurley, PG&E, Tornillo] was struck down not because of compelled hosting but instead because the host’s message was impacted by the speech it was forced to accommodate, which compelled an association that caused public confusion between the speaker’s message and the host’s message

This is an always-wrong #MAGA talking point. For example, the problem with the must-carry obligation in Tornillo was that it overrode the newspaper’s decisions about what content it wanted to publish, not that readers thought the newspaper was endorsing the unwanted content. Based on this incorrect assumption about the harm of common carriage applied to publishers, the court makes unsupported empirical claims:

There is minimal concern that Google Search’s users will believe that Google Search’s results constitute Google’s own speech. 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. If the State obtains the relief it seeks in this case – an order that Google not self-preference-then any such concern of forced association would be all the more attenuated because the public would know that Google was being forced to host that video.

The assertion that censorship will be OK because the people will know that the government forced the censorship smacks of authoritarianism. People in heavily censored countries know the government is lying to them, but they acquiesce because they can’t do anything about it. I hope this isn’t a model we’re trying to emulate.

Standing alone, the court’s openness to the common carriage paradigm looks troubling. However, in light of the 11th Circuit’s ruling in NetChoice v. Attorney General (which came out the day before), this opinion looks embarrassing. The NetChoice opinion also addressed the common carriage question, but it did so 1000x more persuasively. The NetChoice opinion persuasively explained why Hurley, PG&E, and Tornillo are the right precedents and PruneYard and FAIR are not. (No one considers Red Lion a credible citation any more, even though modern “conservatives” have shockingly embraced the fairness doctrine). The NetChoice opinion persuasively explained why content moderation decisions (which I think are functionally equivalent to search ranking indexing, ranking, and presentation decisions) are expressive and thus get First Amendment protection irrespective of whether readers/consumers attribute the third-party content to the publisher. As the NetChoice opinion said, “private actors have a First Amendment right to be ‘unfair’—which is to say, a right to have and express their own points of view” through their editorial decisions. The NetChoice opinion persuasively explained that “there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field,” so anti-preferencing rules can’t survive intermediate scrutiny–or even rational basis review. And the NetChoice opinion persuasively explained why the common carrier paradigm doesn’t fit Internet publication of third-party content. This line is illustrative: “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

Of course an Ohio state court isn’t required to follow an 11th Circuit ruling. But putting the two opinions side-by-side makes this opinion look terrible.

Implications

I’m not sure if this opinion is immediately appealable, but whenever it is appealed, I don’t think the decision will survive an independent review by three judges. Alternatively, in further proceedings at the district court, Google should be able to refute AG Yost’s arguments and prevail on summary judgment (albeit at the cost of a few million dollars for discovery, but hey, Google can afford it, amirite?). Given the inevitable denouement of this case, I don’t view it as a watershed ruling on common carriage or a precedent-setter. Instead, I view it as a tragic example of how #MAGA litigation threatens to undermine the rule of law.

Case citation: Ohio ex rel Yost v. Google LLC, Case No. 21-CV-H-06-0274 (Ohio Ct. Common Pleas May 24, 2022)