Google: protected by the First Amendment?

Attention, legal weasels: A fascinating chapter in the legal battles over Google is unfolding.

As you may have read in previous stories, the company SearchKing sued Google a while back, claiming that Google’s tweaking of its PageRank technology screwed with SearchKing’s business. SearchKing is a purveyor of “link farms”; for a fee, the company will organize a whole pile of links to your site from different locations, in an attempt to artificially increase the “popularity” of your site in Google’s PageRank system and drive it higher in seach results. Google found out about this and, one day, tweaked its algorithms to cut SearchKing out of the loop. Also, SearchKing suddenly found that its own PageRank quotient remained low, no matter how many people linked to it. So SearchKing sued Google — claiming that Google did not have the right to change its algorithms specifically to hurt SearchKing.

But here’s where it gets interesting. Google recently filed its official reply to SearchKing’s allegations — and claims that its search results should be protected as free speech.

Here’s a fabulous analysis of this from the LawMeme blog:

Google has one very powerful argument here. Google claims that PageRank is commercial speech, protected by the First Amendment. SearchKing is alleging “tortious interference with contractual relations,” but according to the precedent Google cites the First Amendment provides an absolute defense when the “interference” consists of speech that is “evaluative opinion[]” …

Google claims that its assessments of the “value” of a web page are very much like a credit agency’s assessments of the creditworthiness of a bond issuer. Both collect objective data, but then sift that data through subjectively-determined and secret formuale in order to come up with a ranking they present to the outside world. Like bond ratings, PageRanks are opinions. They’re professional opinions, but they remain opinions. As Google states in a beautiful footnote:

The PageRank values assigned by Google are not susceptible to being proved true or false by objective evidence. How could SearchKing ever “prove” that its ranking should “truly” be a 4 or a 6 or a 8? Certainly, Search King is not suggesting that each one of the billions of web pages ranked by Google are subject to another “truer” evaluation? If it believes so, it is certainly free to develop its own search services using the criteria it deems most appropriate.

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I'm Clive Thompson, the author of Smarter Than You Think: How Technology is Changing Our Minds for the Better (Penguin Press). You can order the book now at Amazon, Barnes and Noble, Powells, Indiebound, or through your local bookstore! I'm also a contributing writer for the New York Times Magazine and a columnist for Wired magazine. Email is here or ping me via the antiquated form of AOL IM (pomeranian99).

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