Florida court: Google permitted to delist sites regarded as spam under First Amendment

Under US law it’s well established that the First Amendment of the US Constitution gives search engines near-total discretion over the content on their pages and ranking algorithms. However, a court in Florida previously allowed a case against Google to survive a motion to dismiss (plaintiff’s links were removed as “pure spam” in violation of Google’s quality guidelines).

The case, e-ventures Worldwide, LLC vs. Google, survived Google’s procedural motion. Among other factual claims, the complaint against Google alleged a kind of conspiracy that the search engine sought to use delisting as a tool to force plaintiff to buy AdWords.

Google was sued under various federal and Florida state statutes, basically for unfair competition. The failure to grant Google’s motion to dismiss was legally in error. However, the Florida court has now granted Google’s motion for summary judgment, effectively ending the litigation in Google’s favor.

Eric Goldman quoted the court’s ruling and rationale, which reaffirmed and relied upon earlier law asserting that the First Amendment protects search engine results as speech:

But there is a more fundamental reason why the First Amendment bars e-ventures’ claims. Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

It’s strange that the court waited until after the discovery phase was over to come to this position, which is a matter of law — rather than a factual question. Nonetheless, it’s a recognition of search-results-as-speech principle first announced in 2003 in Search King v. Google:

Therefore, the Court finds that under Oklahoma law, protected speech-in this case, PageRanks-cannot give rise to a claim for tortious interference with contractual relations because it cannot be considered wrongful, even if the speech is motivated by hatred or ill will.

While e-ventures could appeal it doesn’t really have a chance to win there either. The law says that Google can present its search results in any manner it wants — a rule that does not equally exist in Europe.

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