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Are Search Engine Results Protected Speech?

By Richard Raysman and Peter Brown
June 02, 2014

Search-engine results have become the lodestar of the Web for most users. Essentially any sort of knowledge, entertainment or other information is accessible via search-engine results. Whether the user constructs a narrowly-tailored query designed to exclude inapplicable results, or a broad search designed as an introduction to a given topic, the algorithmic apparatus fueling search engines will usually produce pertinent information. As a matter of fact, this article on search results was in part fueled by using results acquired from a search engine.

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?

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