Google's search engine results are free speech and I don't care

Summary: Think the United States government has a chance in hell of beating Googles legal team? Think again.

Have you heard: the latest and greatest tech-law debate concerns whether Google search results are protected by the First Amendment to the US Constitution?

Of course, they are. Maybe if those results were just automatically generated page rankings they wouldnt be. But, since actual people at Google manipulate the results exactly how and how much Google wont say the content is editorial in nature and is therefore as protected by the First Amendment as the front page of the Wall Street Journal.

In case youre interested in the full battery of legal arguments, youre free to endure the recent white paper commissioned by Google on the subject. In 27 pages, the law professor Eugene Volokh, who is too smart to be writing commercial white papers, makes the case for search engine results as protected speech so convincingly that theres little point in trying to refute him. Yes, he was paid by Googles law firm to write it. Yes, the arguments are still decisive.

Why is the status of search-engine results important? Google is laying the legal foundations for an antitrust defense that probably wont matter. Free speech or no, the FTC is still going to try to break up monopolies, and when Google triumphs over the FTC it will be a victory of attrition not the Constitution.

Perhaps more realistically, when know-nothing legislators try to force Google to make its search results more fair, a First Amendment line of argument may come in handy. Later, the same arguments may undermine Google when it argues that its just delivering non-judgmental search results, but Im sure theyll try to maintain both positions.

In the end, though, I dont really care whether Google search results are protected speech or not, and I think the whole discussion is a waste of time. Heres why:

1. Google is the best search engine

Theres one reason and one reason only that Google is a verb: because Google is the best search engine. My friend Jeff is the only person I know who doesnt say hes going to Google something when he searches. He uses Bing as a verb. He actually says, in his Texas drawl, Im gonna Bing that! Jeff is not stupid, hes just mistaken and a little eccentric.

That of all the intelligent people I know only one of them prefers Bing to Google explains why Google has an 87.9% global search-engine market share and Bing has 4.2% with probably something like 4.1% of that number accounted for by people using Bing unintentionally because they use a browser with Bing as the default.

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Google's search engine results are free speech and I don't care