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Google, through its popular search listings, has the power to promote or bury speech. And, Google stresses that its arrangement of search results are not based on accuracy or completeness, but based on its own editorial judgment. A recent decision, at the behest of abortion-rights groups, to exclude from its search engine advertisements for crisis pregnancy centers is a testament to this power.

Bowing to pressure from abortion-rights groups, Google is removing advertisements from its site for “crisis pregnancy centers” that discourage people from having abortions.

NARAL Pro-Choice America had pushed for Google to take down the ads, arguing they violated the Web giant’s advertising policy.

“Anyone looking for abortion services should be able to depend on their search engine to provide them with accurate resources,” NARAL President Ilyse Hogue said in a statement. “Anything less is aiding and abetting ideologically driven groups with a calculated campaign to lie to and shame women making one of the most important decisions of our lives.”

Abortion-rights groups say that the crisis centers, which advertise free counseling, operate under innocuous names in order to convince women not to have an abortion.

According to NARAL, people using Google to search for “abortion clinics” got ads advertising the crisis centers about 79 percent of the time.

“Google’s leadership in removing the majority of these ads is a victory for truth in advertising and for the women who have been targeted by a deliberate misinformation campaign by crisis pregnancy centers,” Hogue said.

“The action taken by Google to address this pressing problem raises the bar for other search engines to monitor and enforce their own advertising policies.”

Think about this for a moment, regardless of your views on abortion of crisis pregnancy centers. NARAL and other groups pressured Google to disappear their opponents from the internet down the memory hole. And Google complied.

Now, you may say that the advertisements are different from search results. You are absolutely right. But what we don’t know is what goes on in Google’s black search box. They sure as hell won’t tell us. And there’s reason to think similar political decisions will not enter the algorithms, at some juncture. Pro-abortion groups are bumped up, and pro-life groups are bumped down. And we will never know why that information is missing.

For more thoughts, see generally my essay, What Happens if Data is Speech?

Consider this dynamic charitably. If Google’s algorithms choose not to include a person or piece of information in its search results—even due to legitimate page-rank concerns, such as RapGenius—in the world of tomor- row, the person in many respects will be invisible. Now, consider this dy- namic less charitably. Google profits from endorsing certain partners.37 Those in Google’s good graces can rest assured that they will remain with- in the core of Google’s all-seeing search robots. Everyone else may fade outside Google’s algorithmic penumbras. Without Google’s binary bless- ing, information may exist on the Internet, but will invariably be demoted into obscurity.

Tonight at 6:30, Justice Stevens will continue his show at the National Constitution Center in Philadelphia. It is totally sold out, but was available online. The price of admission was, for members, $20 and 1 book, and for non-members, $25 and 1 book. I don’t know if there is also a one drink minimum. You can stream the event online here.

In the flurry of activity when Schuette was decided last week, I started, but did not finish a series of posts about the case. Now I’m stuck with half-finished posts that highlight various interesting aspects of oral arguments, that I don’t have time to complete. So please indulge me with some incomplete analyses. At the least, you can use these excerpts for related research.

One issue in particular that stuck out in Schuette was how Justice Kennedy connected federalism and liberty, citing Bond v. United States. Though, as I’ve noted before, Kennedy promotes federalism so long as it is liberty enhancing. The good ‘ole one-way ratchet would not permit the states to eliminate protection for gays (Romer) or ban sodomy (Lawrence). But eliminating affirmative action–something that is barely constitutional, and is on borrowed time, would in AMK’s mind promote liberty. Therefore, this blend of “substantive federalism” reconciles Schuette and Lawrence.

What this says about same-sex marriage is to be determined. My guess is that conferrring rights of marriage on same-sex couples is a form of liberty-enhancing dignity the Constitution must protect.

By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their demo- cratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.

 

ABA Journal has the report:

LegalZoom, the purveyor of online interactive self-help legal documents, announced in a press release this week that the South Carolina Supreme Court has approved the company’s business practices, which have been challenged in a number of state courts as unauthorized practice of law.

According to a report (PDF) by the state supreme court’s referee handling the case, LegalZoom was offering interactive self-help documents that were like ones already offered by various state and local agencies. Though the company basically was found to be operating properly under South Carolina law, it agreed to pay the plaintiff’s lawyers $500,000 in settling the matter. …

Interestingly, the Court stressed that LegalZoom provides no “judgment or discretion” and blindly fills in the forms:

The underlying report and recommendations for the agreement and order noted that, according to an affidavit by one South Carolina attorney, of 20 practice areas encompassed by LegalZoom’s document service, for 19 of them the same basic services “are available online to South Carolina citizens (and the public at large) via other self-help portals at websites maintained by various South Carolina governmental agencies.”

Only the document service’s Pet Protection Agreement is not.

The report determined that LegalZoom’s self-help documents do not provide legal advice, and the company does not provide legal assistance to its customers in creating the document, and thus do not engage in the unauthorized practice of law.

“LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer,” Newman wrote in the report, adding that its “does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”

Here is the South Carolina Supreme Court’s report:

3 Geeks and a Law has more:

This morning, LegalZoom launched a press release that announced that the South Carolina Supreme Court approved of their business model and that its services of providing legal forms for individual citizens to use is not the unorthorized practice of law. The original lawsuit of T. Travis Medlock v. LegalZoom, Inc. brought the action requesting declaratory relief, injunctive relief and disgorgement of revenues, among other measures. This isn’t the only UPL action that LegalZoom is facing, according to their SEC Filing, they are fighting UPL claims in Alabama, Ohio, Arkansas, Missouri, and North Carolina.

The Supreme Court’s Affirmative Action cases (Bakke, Fisher, Grutter/Gratz) were all brought against public institutions, each bound by the Equal Protection Clause of the 14th Amendment. But may private colleges also be prohibited in their use of racial preferences? The answer is not a clear no.

Recall that in Bakke, Justice Stevens, joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist, avoided the constitutional issue. They found that the University of California’s quota system violated Title VI of the Civil Rights Act of 1964, which applies to all institutions of higher education that receives federal money (virtually all of them).

42 U.S.C. 2000d provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Justice Powell in Bakke described Title VI “ like that of the Equal Protection Clause, is majestic in its sweep.”

Does a system of racial preferences, like that used in Gratz, violate Title VI?  Is Title VI be coterminous with the Equal Protection Clause? Thus, would an Affirmative Action policy that runs afoul of Gratz run afoul of Title VI?

Justice O’Connor’s opinion in Grutter says yes. At the very end, she drops in the Title VI analysis.

    In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause).

Contrariwise, Chief Justice Rehnquist’s opinion in Gratz finds the same:

 We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.22 We further find that the admissions policy also violates Title VI and 42 U.S.C. § 1981.23

Rehnquist makes the point quite clear in this footnote that the Court’s affirmative action jurisprudence would apply to private colleges.

23.  We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001);United States v. Fordice, 505 U.S. 717, 732, n. 7 (1992); Alexanderv. Choate, 469 U.S. 287, 293 (1985). Likewise, with respect to §1981, we have explained that the provision was “meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.”McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295—296 (1976). Furthermore, we have explained that a contract for educational services is a “contract” for purposes of §1981. SeeRunyon v. McCrary, 427 U.S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of theFourteenth Amendment will also violate §1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—390 (1982).

Note that a number of private universities filed briefs in Grutter/Gratz, recognizing this fact. For example, the brief filed by Larry Tribe on behalf of Harvard University, and other elite private colleges, addresses this concern:

Because Title VI of the Civil Rights Act of 1964 forbids institutions that receive federal funds from engaging in racial “discrimination,” the ability of private colleges and universities to exercise their institutional competence could well be dramatically compromised by any new limits this Court might place on state university admissions criteria or procedures. Accordingly, amici urge this Court to interpret the Constitution and federal statutes to leave amici and other selective educational institutions with latitude to take race and ethnicity into account as positive factors in their individualized admissions processes.

It seems that federal government has taken the position that affirmative action policies are consistent with Title VI–even those above and beyond Grutter.

(i) Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.

This does not seem consistent with the Supreme Court’s precedents, as this rationale is not limited to the compelling state interest of “diversity,” but instead is aimed at making educational programs “more widely available to certain demographics.”

I’ve heard that there has been a longstanding debate simmering in right-wing circles about whether to bring an affirmative action challenge against a private university.

For those playing at home, as we speak, Ed Blum (who brought Fisher, Shelby County, and other cases) is recruiting plaintiffs at Harvard University to challenge their affirmative action system, presumably under Title VI.

So is my friend Mike Sacks right about Schuette?

The travesty, instead, is the Roberts Court’s inevitable march toward its virtual eradication of affirmative action in the 42 states it remains permitted.

Stay tuned.

More from David Bernstein and Ramesh Ponnuru.