• by Wendy Davis , Staff Writer @wendyndavis, May 9, 2012

Search engines have a free-speech right to display whichever results they choose, in whichever order they choose, constitutional law scholar Eugene Volokh argues in a paper commissioned by Google and submitted to the Federal Trade Commission.

Volokh argues that Google has the same free-speech rights as newspapers, encyclopedias or other publishers in deciding what content to feature -- even if the decisions are seen as unfair or harmful to other businesses. "For instance," he writes in the 27-page paper, "when many newspapers published TV listings, they were free to choose to do so without regard to whether this choice undermined the market for TV Guide. Likewise, search engines are free to include and highlight their own listings of (for example) local review pages even though Yelp might prefer that the search engines instead rank Yelp’s information higher."

The report -- which addresses organic listings, and not AdWords ads -- comes as the Federal Trade Commission is investigating Google for potential antitrust violations. While the investigation isn't yet public, some observers believe that the FTC is particularly concerned about whether Google is favoring its own content at the expense of material created by other publishers.

The FTC isn't the only one probing Google. A Senate panel last year also held a hearing addressing Google and antitrust issues. One of the witnesses, Yelp CEO Jeremy Stoppelman, took aim at Google for including Yelp reviews in Google's local search product without a license. "Google forces review Web sites to provide their content for free to benefit Google's own competing product -- not consumers," Stoppleman said in his written testimony. "Google then gives its own product preferential treatment in Google search results."

Stoppleman also said at that hearing that he didn't think he would launch Yelp today. "Honestly, I'd find something else to do," he said in response to a lawmaker's question. "When we started there was a level playing field."

Of course, at this point, it's still unknown whether the FTC will charge Google with antitrust violations. For now, however, Volokh's paper sets out an array of arguments for why antitrust charges against Google based on its search results could conflict with free-speech principles.

The paper includes references to cases dealing with potential conflicts between free-speech principles and laws mandating "fairness." One that he highlights is a 1974 Supreme Court decision overturning a Florida law that required newspapers to allow political candidates to respond to criticism by the paper. The court wrote in that case that questions about what to print, as well as what not to print, were protected by free-speech principles.

But Seton Hall law professor Frank Pasquale (who has suggested that search engines should be more transparent about the factors that go into the decisions about rankings) says a 1951 Supreme Court decision about a monopolistic newspaper might be more problematic for Google. In that case, the Supreme Court ruled that the Lorain Journal of Ohio violated antitrust law by refusing to accept ads from companies who also advertised with a local radio station.

At the time, the Journal was the only daily paper in town; it reached virtually every household in Lorain. For those reasons, the Journal was "an indispensable medium of advertising for many Lorain concerns," the Supreme Court wrote in an order holding that the Journal's ad policies violated antitrust law.

Of course, that case dealt with ads, and Volokh's paper doesn't address AdWords. Still, the decision could be used to show that free-speech principles don't always protect publishers' decisions about when to reject material.