Google Is Not a Pipe

In this short article, author Ben Sperry (Truth On The Market) discusses Ohio Attorney General Dave Yost’s effort to classify Google Search as a common carrier under Ohio law, a move that would restrict Google from prioritizing its own products in search results. After losing at the trial level, Yost has appealed to the Fifth District Court of Appeals of Ohio, supported by bipartisan populist arguments that treat search as a neutral transmission service.

Sperry summarizes the lower court’s findings that Google Search does not “transport” information like an internet service provider, but instead generates tailored answers to user queries, and does not hold itself out as serving the public indifferently. Because the court concluded that Google is not a common carrier, it did not reach the First Amendment issues, though Sperry and his colleagues at the International Center for Law & Economics argue in an amicus brief that the common-carrier and First Amendment analyses substantially overlap.

Drawing on Supreme Court precedent, the article explains that services exercising editorial discretion by selecting, organizing, and curating content are engaged in protected expressive activity, not neutral carriage. Sperry notes that the record in Ohio v. Google shows Google Search creates a unique, curated product for each query, and that forcing alternative rankings would amount to compelled speech subject to strict scrutiny under the First Amendment…

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