A new advocacy paper by a prominent First Amendment scholar argues that Google is a publisher, and as such, its search results are free to favor some sites and block others, as a matter of editorial choice.

Steven Shaw reports on ZDNet that University of California professor Eugene Volokh has published a white paper (commissioned by Google) that argues that Google’s search results are protected as free speech — put simply, that Google acts in the same way as a newspaper, prioritizing news or search results, in order to communicate with its readers. Says Shaw,

“Since actual people at Google manipulate the results — exactly how and how much Google won’t say — the content is editorial in nature and is therefore as protected by the First Amendment as the front page of the Wall Street Journal.”

Further, Volokh argues in the paper that,

“Google, Microsoft’s Bing, and Yahoo! Search exercise editorial judgment about what constitutes useful information and convey that information—which is to say, they speak—to their users. In this respect, they are analogous to newspapers and book publishers that convey a wide range of information from news stories and selected columns by outside contributors to stock listings, movie listings, bestseller lists, and restaurant guides. And all of these speakers are shielded by the First Amendment, which blocks the government from dictating what is presented by the speakers or the manner in which it is presented.”

Such choice can be seen on the Google News page, where some news reports are featured in bigger type at the top of the page, essentially, “above the fold.”

Shaw and Noam Cohen in The New York Times speculate that Google is emphasizing its First Amendment bona fides in an effort to ward off charges of anti-competitiveness from the government and other companies. Google is currently facing no such lawsuit, but has often been accused of producing results that promote their own products and services.

Although Volokh’s arguments are clear and convincing, the paper also gives Google somewhat of an identity crisis: is Google a simple internet intermediary or a real live publisher?

To be protected by Safe Harbor laws, and free from copyright and libel suits, it often works best for Google to be a mere communicator of information, and not responsible for the information people put online.

Another issue arising from Google’s split personality is net neutrality.  As Cohen argues,

“The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.

 Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality”.”

Google-as-publisher might simply be a symptom of the evolving nature of digital communication.  Although, you might ask, do we want Google in the First Amendment paddling pool?

In my opinion, for the moment, yes. As long as Google is clear about when results are favored, the service they provide is simply better than the others and I’ll keep using it.  People do use Google to find information, whether news or sports statistics, and that information should be free from interference.

Still, perhaps Volokh’s paper is best seen as a shot across the bow from Google at a trigger-happy DOJ.