Yes, because Google commissioned the paper, presumably to help ward off calls for government regulation of its search results. And as such, Google itself can do with the results whatever it wants. If others want to do something to the results, they’re violating the First Amendment
The new Google-commissioned paper, written by well-known UCLA law professor Eugene Volokh and attorney Donald Falk, argues that such regulations would be preempted by the First Amendment. Google’s search engine, they write, “uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers’ judgments about what material users are likely to find responsive to these queries.”
The authors argue that this selection process is no different, constitutionally speaking, from a newspaper editor selecting wire stories to run, a guidebook deciding which attractions to feature, or a parade organizer choosing which floats to include. The courts have ruled that all of these editorial processes are fully protected by the First Amendment.
Moreover, the paper argues, the courts have held that First Amendment rights generally trump antitrust law—something of increasing concern to a dominant company like Google. “Antitrust law cannot be used to require a speaker to include certain material in its speech product,” Volokh and Falk write. They point to a 1945 case in which the courts found the Associated Press had violated antitrust laws, but stressed that its ruling did not “compel AP or its members to permit publication of anything which their ‘reason’ tells them should not be published.” Newspaper editors have the right to decide which stories should be included in their newspapers and which ones make the front page.
This suggests that Google has similarly wide discretion to decide which links and other content will appear, and in which order, in response to any given search query.
Isn’t a newspaper also publishing original stories, opinions and reviews when compared to a “crawl all, copy all” search engine?
More:
http://arstechnica.com/tech-policy/2012/05/scholar-regulating-google-results-would-violate-first-amendment/
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