By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.
I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference. My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission. Unlike many of my colleagues on the panel, I’m far from being an antitrust expert. My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment.
The question arises because of a novel proposition being advanced by Google. The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google. Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it. Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.
But wait – newspaper editors don’t receive absolute protection under the First Amendment. If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk? Why did I defend a deposition last week of a reporter attempting to keep his source confidential? Why have reporters gone to prison in the United States to protect sources? Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?
The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment. Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law. Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.
Of course, non-deceptive speech also may be regulated in many circumstances. The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech. The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice. This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.
Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.” But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world. No one is above the law – not even Google. Whether any of the allegations against Google can be proved, of course, remains to be seen. But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.
If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.
The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.
