Professor Eugene Volokh, the Advocate

May 21st, 2012

The Times has a lengthy piece on Eugene Volokh, who was recently commissioned by Google to write a white paper that argues that search results are protected speech.

When Eugene first linked to the paper a few weeks ago, I was curious about it. This isn’t a Fallon-problem, where a scholar writes a brief in some litigation. This is simply a piece of advocacy in the public arena (not too different from Randy Barnett, et al, Heritage white paper about ACA). Eugene simply wrote:

Google commissioned me to write this White Paper (“First Amendment Protection for Search Engine Search Results“), so I thought I’d pass it along. I wrote the paper as an advocate, and not as a disinterested academic, but I hope some of our readers might find it interesting nonetheless

Comments were closed on the post.

And this disclaimer:

This White Paper was commissioned by Google, but the views within it should not necessarily be ascribed to Google.

Not really sure what that means.

Now the Times has picked it up.

But when the issue is anticompetitive behavior — a charge made by rivals and some businesses — Google has lately been emphasizing that it sees itself as a publisher, and it is appealing for different kinds of protections, in the realm of free speech.

How Google has decided to say this is almost as interesting as what is being said. The company hired Eugene Volokh, an influential conservative blogger and a professor at the University of California, Los Angeles, to write a paper last month. In it, he argues that Google search results are protected speech.

Mr. Volokh freely acknowledges that the paper, posted on his blog and shared widely on the Internet, is not academic scholarship but a piece of advocacy, written in his capacity as an academic affiliate at a Los Angeles law firm, Mayer Brown. It is something that would typically be prepared if Google were facing a trial on these issues.

There is no such court case at the moment that Mr. Volokh is pointing toward with his paper, but Google has become a target over how it runs its search engine. Competitors and some companies say Google’s search algorithms favor services owned by Google, a charge Google denies, but one that has drawn the attention of regulators in Europe and the United States.

If Mr. Schmidt was the good cop, telling the Congress, in effect, “we get it,” when it comes to monopolistic behavior, Mr. Volokh is the bad cop: the message of his paper is that Google is a publisher and can favor its own material or even block another’s. If you don’t like it, tough luck. Try telling a newspaper what it should be printing.

So how did this commissioned paper come about?

Asked for comment, Google wrote in an e-mail that it had commissioned the paper as a way to lend support to two lower court rulings, from 2003 and 2007, that gave Google’s search results First Amendment protections. “Given that federal courts rejected on First Amendment grounds several lawsuits by Web sites over search rankings, we thought these issues were worth exploring by a noted First Amendment scholar,” said Adam Kovacevich, a spokesman on policy issues for Google in Washington.

The paper has managed to get a lot of attention, in part because Mr. Volokh was able to promote it on the Volokh Conspiracy, his popular group blog on legal issues. But the paper also makes great fodder for online discussions because of Mr. Volokh’s style of staking out his position in direct language (with barely any footnotes).

No quotations from Eugene. I wonder if the Times talked to him and he declined? If that was the case, they would’ve said Eugene declined comment. So maybe he talked to them and didn’t like what he had to say. They did print Google’s statement.

I love the caption below Eugene’s photo:

Eugene Volokh, a professor at the University of California, Los Angeles, is an influential blogger.

Not Eugene Volokh, the influential blogger, is a prof at UCLA. The main subject of the sentence is that he’s a blogger. That he has an endowed chair at UCLA is extraneous.

Frank Bowman at CoOps writes:

 But Professor Volokh’s role does raise some questions with me. To what extent should we as professors sell our academic reputations to act as advocates? As the Times article notes, Eugene candidly avows that his paper is a work of advocacy in his capacity as lawyer and not a work of scholarship in his capacity as professor. And I sometimes represent clients in federal criminal matters or provide adversarial arguments to counsel on questions of federal sentencing law myself. So I don’t question the propriety of Eugene’s conduct here. But I have an ill-formed intuition that this sort of thing can be a problem.

Paul Horwtiz is likely cooking up a devilish post on point here, to which Orin Kerr will swoop in to defend Eugene. Randy Barnett will take some hits in the process.

I wonder if Eugene had written his views on the topic of First Amendment protection for search results, without Google’s commission, would it have been any different? If there would be no difference, why did he have to do it on Google’s dime, (other than to get Google’s dime?) If his view would have been different without writing it on Google’s dime, how so? And at that point, it starts to trouble me a bit more.