Created by ChatGPT Jan. 2026

Censorship efforts tend to come in fads. Censors get fired up about a new censorship theory and try it out, but the experiment tends to not satisfy them (either because it’s struck down or doesn’t scratch their censorship itch enough) and they move onto the next censorship fad. Rinse and repeat.

Around 2020, a censorship fad was to impose common carriage obligations to restrict the editorial decision-making of Internet publishers. This fad triggered a lot of pointless conversations about 19th century technologies, such as railroads. The legal underpinnings of the fad were always obviously mockable, and most censors have already moved onto to newer censorship theories.

We’re still dealing with the detritus of the 2020ish common carriage fetishization. As one example, Ohio AG Yost sued Google claiming that Google search was a common carrier. This was always a stupid partisan lawsuit-stunt. Yet, even in the MAGA nirvana of Ohio, the lawsuit got no traction in court. Today, the Ohio appeals court unhesitatingly rejected the common carriage argument.

The court starts by observing that the legislature hasn’t spoken on this topic: “The General Assembly has not extended common carrier or public utility obligations to search engines or similar application-layer services.” Instead, the court says, there’s no carrying and no commoning taking place here.

There is No Carrying

“Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage.”

The court distinguishes search engines from telephones:

The State’s analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user’s own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State’s complaint centers on the return leg – the SRP Google delivers back to the user.

That return data is not the user’s property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google’s own expressive product, not the user’s or any third party’s property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper’s or speaker’s existing goods or message and deliver them substantially as received. Google does neither on the return leg.

There is No Commoning

The “common” part refers to the nondiscrimination obligations. The court is like, what are we even talking about…?

Even assuming for the sake of argument that Google’s Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General’s concern lies primarily with outputs – the ranking, presentation, and curation of search results.

At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable. Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional “rate” for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.

Thus, even if one were to accept the State’s position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments.

But Google is Big!

The court says: “There is no question that Google Search exerts enormous influence over the flow of information [but] it does not dispense with the common carrier doctrine’s two core requirements for judicial intervention.”

The court then extensively chastizes AG Yost for trying to legislate through litigation and reminds him of the proper role of judges. For example, it says “This Court will not accomplish by judicial fiat what the legislature has not chosen to do.” The court adds some mild benchslaps like:

It appears that the Attorney General singled out Google because of its monopoly-like status in this field. But ubiquity and market share do not justify novel judicial intervention here.

Federal preemption

“treating search engines as common carriers under state law would raise serious questions of conflict with federal communications policy.”

First Amendment

“The undisputed facts and the State’s legal arguments make clear that the core concern underlying this litigation is the regulation of Google’s editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.”

The court should have stopped talking there, but it didn’t:

We do not discount the legitimate policy concerns that animate the State’s position. Google’s dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. [cite to Final Report: The Weaponization of the Federal Government, and that so gets a hard eyeroll from me.] These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.

But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google’s search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech. [cite to Moody and Miami Herald v. Tornillo]

Conclusion

The court concludes:

Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google’s search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch.

* * *

Among the many ways this opinion feels dated, there is a lot less emotional investment in Google’s blue organic links now that Google is highlighting AI overviews on its search results pages. Maybe we’ll get a round 2 of litigation claiming that the AI outputs should be treated like common carriers.

I don’t see how anyone who once jumped on the “Internet publishers are common carriers” bandwagon can read this opinion and not feel terrible about that position. This opinion is a thorough and persuasive rejection of the arguments.

Note that the court’s emphatic deference to the legislatures raises its own set of questions. We have seen many states enact terrible censorial legislation, including common carriage-like obligations in the Florida and Texas social media censorship laws. So I could easily see the Ohio legislature reading this opinion and responding “censorship challenge accepted!” Yet, the court opinion simultaneously makes it clear that the legislature doesn’t really have this authority. As the court also says, “Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it.” So for all of the opinion’s unnecessary digressions about legislative power, the opinion itself signals a huge flashing stoplight to legislatures considering whether they should jump on the fizzled common carriage fad.

Personnel note 1: This opinion was authored by Presiding Judge Andrew J. King, whose official bio says that “His prior public service includes serving as an…Attorney General for Dave Yost.” The opinion’s critiques of AG Yost’s censorial overreaches must sting a little harder when the author worked in his office.

Bloomberg Law also reports:

King is vying for the Republican nomination for one of two state Supreme Court seats up this year. A video he posted Monday on his campaign’s Facebook page described him as “the pro-Trump constitutional conservative”

AG Yost’s arguments couldn’t even sway a MAGA partisan seeking higher office. Sad!

Personnel note 2: Following an unsuccessful run for Ohio governor, Dave Yost recently stepped down as state AG. Per Wikipedia, he now has a leadership role in the “Alliance Defending Freedom, a conservative Christian legal advocacy group.” [And that differs from the Ohio AG’s office how…? <rimshot>] The press release. With the change in leadership in the Ohio AG’s office, will that affect the office’s willingness to keep litigating this case? My guess is this lawsuit was Yost’s idiosyncratic quest and not worth further AG office investments now that he’s gone.

Prior Blog Posts on Common Carriage

• Google Search Isn’t a Common Carrier–Richards v. Google
• Ninth Circuit Deletes RNC’s Lawsuit Over Gmail’s Spam Filter–RNC v. Google
• Google Search Isn’t a “Common Carrier” (DUH)–Ohio v. Google
• Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
• Statement on the Supreme Court’s Ruling in Moody v. NetChoice
• Section 230 Protects Gmail’s Spam Filter–RNC v. Google
• Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google
• Big Ruling for Free Speech: Most of Florida’s Social Media Censorship Law (SB 7072) Remains Enjoined–NetChoice v. Attorney General
• Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs
• Court Enjoins Texas’ Attempt to Censor Social Media, and the Opinion Is a Major Development in Internet Law–NetChoice v. Paxton
• Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook
• Texas Enacts Social Media Censorship Law to Benefit Anti-Vaxxers & Spammers
• 31 Bogus Passages from Florida’s Defense of Its Censorship Law–NetChoice v. Moody
• Florida Hits a New Censorial Low in Internet Regulation (Comments on SB 7072)
• Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump
• Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook
• Are Social Media Services “State Actors” or “Common Carriers”?

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