The owner of a website called CoastNews, S. Louis Martin, argued that Google was unfairly putting CoastNews too far down in search results, while Bing and Yahoo were turning up CoastNews in the number one spot. CoastNews claimed that violated antitrust laws. It also took issue with Google's refusal to deliver ads to its website after CoastNews posted photographs of a nudist colony in the Santa Cruz mountains.
Google then filed an anti-SLAPP motion against the plaintiff. Anti-SLAPP regulations in California allow courts to throw out lawsuits at an early stage if they're intended to stifle free speech rights. In this case, the judge agreed [PDF] that Google was permitted by the First Amendment to organize its search results as it saw fit.
“Defendant has met its burden of showing that the claims asserted against it arise from constitutionally protected activity,” the judge's order read.
More powerful companies have also taken issue with Google's ordering of search results to no avail. Back in 2011, a Senate antitrust subcommittee began an investigation of Google's search results under the premise that Google's size could lead to anticompetitive behavior. The FTC also launched an investigation into Google's practices, but the company came away unscathed after the 19-month-long ordeal.
In 2012, Google commissioned a white paper by prominent UCLA law professor Eugene Volokh and attorney Donald Falk in which the two concluded that Google's search engine is protected by the First Amendment because it "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."
Ars contacted Volokh regarding this recent ruling, and he said that if anything, the search engine's status as protected by the First Amendment is stronger today than it was before. This is especially true given a recent ruling in a case involving Chinese search engine Baidu, which was sued in America by pro-democracy activists for censoring political speech from US users. Nevertheless, the Manhattan US District judge in that case ruled that the search engine could organize its search results as it liked because it was protected by the First Amendment.
”Newspapers, guidebooks—and, for that matter, Ars Technica—have a First Amendment right to choose which stories are worth publishing, and which businesses are worth covering,” Volokh wrote to Ars in an e-mail. “Likewise, Google (a modern heir of the guidebook) can choose which pages to prominently display (and thus implicitly recommend as relevant and interesting) to readers and which pages aren’t worth displaying so prominently—or aren’t worth displaying at all.”