On Thursday, the Federal Trade Commission announced that, after its inquiry of almost two-years, it is ending its antitrust investigation into Google.  It finds that Google has not violated antitrust laws in its ordering of search results. 

Google began its search service with its original “ten blue links” organic search results.  Since that time, Google has evolved by leaps and bounds, including in the services it provides and the way it orders its search results.  Nowadays, a Google search may lead to the display of a “universal search” box showing Google’s own services in addition to those familiar “blue links.” Complainants alleged that Google altered its search algorithms to favor its own services and demote services that competed with Google’s, thereby engaging in “search bias.”  After extensive review of evidence, including empirical analyses, white papers from industry participants, and more, the Commission found that “Google adopted the design changes  . . . to improve the quality of its search results and that any negative impact on actual or potential competitors was incidental to that purpose.”  As the F.T.C. is concerned with consumer protection, they could not find that consumers—viewed as those conducting the searches—were disadvantaged by these practices. 

On Saturday, The New York Times published an op-ed article, “Is Google Like Gas or Like Steel?,” explaining how the F.T.C. decision favors freedom of the press and free speech generally.  It supports one of the arguments that had been made in furtherance of Google’s position, that Google’s decisions on how to display its search results are constitutionally protected speech.  The argument analogizes Google’s search-display function to the function of a newspaper editor in choosing which articles to include and where to display them. 

The article distinguishes the F.T.C.’s investigation of Google from the often-compared antitrust investigation of Microsoft in the 1990s.  It makes the case that Google is more akin to the media giant the Associated Press than to Microsoft or a public utility, and references Associated Press v. United States, 326 U.S. 1 (1945).  As was found with respect to the A.P. in that case, Google cannot be regulated exactly like a public utility because of the element of the public interest in the delivery of information to the public.  The article concludes, “[t]his makes regulation of the media difficult.  But regulating speech should not be easy, like regulating a public utility, but hard, as the F.T.C. has correctly found.”

The article was co-authored by Baker Hostetler of counsel Bruce D. Brown.