02:26 AM

2.28.07 Judge: Google is a media company, legally speaking

A federal judge has dismissed a case against Google that challenged the search engine's right to refuse advertising. In his ruling (PDF), the judge handed Google, Yahoo and Microsoft a big fat juicy win, saying that search engines can refuse advertising for any reason - and they don't have to say why.

The plaintiff, Christopher Langdon, was suing Google, Yahoo, Microsoft, Time Warner and AOL for refusal to run his ads. The complaint focused mainly on Google and its refusal to specify the reason for the rejection.

In essence, the judge answered the topic that's been tearing up these pages this week: Is Google a media company? Simply, yes. Search engines are constitutionally similar to newspapers, the decision says and they have the same limited First Amendment rights as newspapers to accept or reject advertising.

Eric Goldman has an excellent review of the decision. He highlights the main points.

  • Search engines have a First Amendment right to reject ads as part of their protected right to speak or not (see Miami Herald v. Tornillo). This opinion is consistent with the uncited Search King ruling, although that case framed Google's Page Rank as protected opinion.

  • Search engine decisions to reject ads is protected by [the Communications Decency Act] as a legitimate decision to filter "otherwise objectionable" content. The court concludes that "Section 230 provides Google, Yahoo, and Microsoft immunity for their editorial decisions regarding screening and deletion from their network." I'm expecting the KinderStart judge to protect Google's ranking choices under 230(c)(2) as well. (In case you're wondering, we're still waiting for the KinderStart ruling that was promised by the end of 2006.)

  • Search engines aren't state actors and are not bound by the First Amendment, so they do not deprive advertisers (such as Langdon) of First Amendment rights by rejecting their advertising. This opinion is consistent with at least a dozen other cases holding that private IAPs and websites aren't state actors.

In finding for Google, the court said that the First Amendment protects not only the right to speak but the right not to speak and cited three newspaper cases that protect a publisher's right to refuse advertising. Indeed, search engines are in an even stronger position than publications, because while newspapers face liability claims for what they publish (such as libel claims), "online service providers" to not. That's because of the Communications Decency Act, which explicitly "forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions." (Ben Ezra, Weinstein Inc. v AOL, 206 F.3d. 980.)

In the future, search engines need not worry about giving explanations to every advertiser it rejects. The ruling makes clear they can now reject without explanation.

This will save Google time and frustration--they can just invoke that standard sign over the cash register: We reserve the right to refuse service to anyone," says Dana Todd, president of the Search Engine Marketing Professional Organization and co-founder of SiteLab, a search engine marketing agency.

So the bottom line, says media and tech attorney Jon Hart, according to Forbes:

Next time, the defendant will pull up a copy of this opinion. Google is not the public square, it is a media company."