• by Wendy Davis  @wendyndavis, October 5, 2021

Google is pressing an Ohio judge to throw out a lawsuit by Attorney General Dave Yost, who is attempting to subject the company to common carrier rules that would regulate search results.

In papers filed late last week, Google argues that search results pages -- including the order in which results are displayed -- are protected by free speech principles.

“The relief Ohio seeks -- government regulation of Google's own speech in responding to user queries -- is plainly barred by the First Amendment,” the company writes in papers filed with Delaware County Common Pleas Court Judge James Schuck.

Google's newest papers come in dispute dating to June, when Ohio Attorney General Dave Yost claimed in a lawsuit that Google dominates the online search market, and should therefore be considered a common carrier under Ohio law.

Yost argued that Google violated Ohio's common-carrier obligations by giving preferential treatment to its own products in the search results.

“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 in his complaint. “It does not allow competitors to have similar access, thereby violating its duties as a common carrier.”

In August, Google urged Schuck to dismiss the lawsuit. Among other arguments, the company said even if Yost's allegations were proven true -- including that Google dominates the market -- those allegations wouldn't show that the company meets Ohio's definition of common carrier.

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

Last month, Yost officially asked Schuck to reject Google's request to dismiss the case. Yost offered several reasons, including that Google's arguments are premature because they focus on the merits of the lawsuit.

“Google, of course, has every right to make these merits arguments, but not yet,” Yost's office wrote.

He added that his office is entitled to obtain evidence from Google, in order to gain “a better understanding of how Google Search works, what Google carries, how it carries it, the composition of Search Engine Results Pages, and how Google manipulates the Results Pages to benefit Google's other business lines.”

Google counters in its newest motion that it's entitled to immediate dismissal of the case because Yost hasn't shown “a cognizable claim that Google is a common carrier or public utility.”

The company adds that there are no prior cases in Ohio suggesting that courts can regulate private companies by deeming them public utilities.

“Such regulation first must be established by the legislature,” Google writes. “Because the legislature has not imposed such regulation on the operation of Google Search and because Ohio law does not afford a private right of action to have a court create such regulations, Ohio's complaint is an 'invalid' attempt to have this court legislate from the bench.”