FTC v. Google Antitrust Suit Brewing. Get Ready For Volokh’s Search-Results-Are-Protected-Speech Argument To Pop Up

October 15th, 2012

There are reports that the FTC is considering bringing an antitrust suit against Google based on charges that it manipulates its search results:

The government’s escalating pursuit of Google is the most far-reaching antitrust investigation of a corporation since the landmark federal case against Microsoft in the late 1990s. The agency’s central focus is whether Google manipulates search results to favor its own products, and makes it harder for competitors and their products to appear prominently on a results page.

The staff recommendation is in a detailed draft memo of more than 100 pages that is being shared with the five F.T.C. commissioners, said two people briefed on the inquiry.

Several months ago, Google commissioned Eugene Volokh to write a paper contending that search results were protected speech under the First Amendment. At the time, the Times alluded to the possibility that this First Amendment argument could be used as a defense to a potential antitrust claim.

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.

I noted that Eugene was note quoted in the May 2012 article in the Times, nor was he quoted in this weeks article.

Needless to say, Eugene’s paper will likely be turned into a brief in the very near future. I wonder what role the pre-emptive paper plays when litigation is looming on the horizon.

Update: Eugene links to another Google-commissioned articleby Robert Bork (!) and Gregory Sidak, to be published in the Journal of Competition Law & Economics. The authors indicate in a footnote that “Google  commissioned this report, but the views expressed are solely our own.” Google is really hitting the ground running, lining up some serious academic firepower–Volokh for First Amendment defenses, and Bork and Sidak for Antitrust Defenses.

I am not familiar with other companies paying academics to write papers in anticipation of litigation like this. I know groups like Mercatus and IHS are harshly criticized for funding scholarship, as these groups are funded by corporate interests. But here, a company with a specific interest in the outcome of soon-to-be-pending litigation is paying for scholarship that will help their cases.

Robert Bork is quite old, so I am amazed he was able to contribute to this detailed 25-page paper. Here is the abstract:

Antitrust agencies in the United States and the European Union began investigating Google’s
search practices in 2010. Google’s critics have consisted mainly of its competitors, particularly
Microsoft, Yelp, TripAdvisor, and other search engines. They have alleged that Google is making it
more difficult for them to compete by including specialized search results in general search pages
and limiting access to search inputs, including “scale,” Google content, and the Android platform.
Those claims contradict real-world experiences in search. They demonstrate competitors’ efforts to
compete not by investing in efficiency, quality, or innovation, but by using antitrust law to punish
the successful competitor. The Chicago School of law and economics teaches—and the Supreme
Court has long affirmed—that antitrust law exists to protect consumers, not competitors. Penalizing
Google’s practices as anticompetitive would violate that principle, reduce dynamic competition in
search, and harm the consumers that the antitrust laws are intended to protect.