• by Wendy Davis  @wendyndavis, August 16, 2021

Striking back against Ohio Attorney General Dave Yost, Google says its search engine is not a “public utility” comparable to electricity or gas, and that attempts to regulate search as a utility service would violate the First Amendment.

“Like its numerous competitors, Google exercises editorial discretion in Google Search to provide users with information that Google believes will be responsive to the user's query,” the company writes in papers filed Friday with Delaware County, Ohio Common Pleas Court Judge James Schuck. “That service is not one that has ever been deemed the type of 'essential service' that Ohio or anyone else has regulated as a public utility.”

Google's papers come in response to a lawsuit brought on June by Yost, a Republican, who alleged that Google dominates the online search market, and should therefore be considered a common carrier under Ohio law.

Yost added in his complaint that Google violated its duties as a common carrier by giving preferential treatment to its own products.

“Google often presents Google products in enhanced ways in the search results that are designed to capture more clicks, including by integrating other Google business lines -- such as specialized searches -- into the results page,” he alleged. “It does not allow competitors to have similar access, thereby violating its duties as a common carrier.”

Google counters in its bid for dismissal that even if Yost's allegations were proven true -- including that Google dominates the market -- they wouldn't show that the company meets Ohio's definition of common carrier.

“Ohio's request has no more validity under the law than a request to declare Fox News, the New York Times, or Walmart a 'public utility' because most people in a particular town prefer to get their news or groceries from them instead of someone else,” the company writes.

Google elaborates that search engines aren't the type of “essential service” that's subject to common carrier regulation in Ohio, arguing that search engines aren't comparable to electricity, gas, telephone service or other traditional utilities.

“To claim, as Ohio does, that Google Search is a 'public utility' is to declare it a business that Ohio could acquire, construct, own or operate,” Google writes. “But that is absurd. The state could not possibly undertake such a burden for countless reasons, not the least of which is that it has no business dictating the online information it wants people to see.”

The company also argues that regulating search results would violate the First Amendment, which prohibits the government from interfering in private companies' editorial decisions.

“In short, Google has autonomy over the content of its own speech: when users submit their queries to Google Search, they seek Google's editorial judgment as to what information is the most useful and how to display that information in the most useful manner,” the company writes. “When Google uses its editorial judgment to respond to a user's query by displaying information it has collected and organized itself and not displaying information compiled by some third party, that response is speech protected by the First Amendment.”

Santa Clara University law professor Eric Goldman previously told MediaPost Google could raise a First Amendment defense to Yost's lawsuit.

Goldman added that Google -- like other newspapers and other web publishers -- has a constitutional right to exercise editorial control over the material it displays online.

“The imposition of common-carrier delegation would conflict with the First Amendment,” he said.