Are Search Engine Results Protected Speech?

The seemingly ubiquitous presence of search-engine results within the milieu of Internet browsing has begun to implicate legal questions, including constitutional ones. With respect to search-engine results, whether they constitute protected speech under the First Amendment has become the foremost area of debate, both within courts and the legal academia. This question implicates axiomatic questions about the Free Speech Clause. Can “bits” of information generated by an algorithm ' an algorithm reflective of the subjective judgments of its designers ' constitute speech warranting the highest level of First Amendment protection? Is a search engine and the results it produces a “publisher” or “speaker” of content, and thus entitled to this protection, or is a search engine a mere “conduit” or “facilitator” of the speech of others, a role inapplicable to heightened free speech protections?

This article discusses these questions as well as the relevant cases on point, including a recent decision in the Southern District of New York holding that a search engine had the right to exclude certain types of content from its search results, two other decisions holding that search-engine results are protected speech, and the thought-provoking debate among legal academics on the topic.