The new Google-commissioned paper, written by well-known UCLA law professor Eugene Volokh and attorney Donald Falk, argues that such regulations would be preempted by the First Amendment. Google's search engine, they write, "uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers' judgments about what material users are likely to find responsive to these queries."
This strikes me as a conceptually significant argument. I'm somewhat disappointed that Google is arguing that its software constitutes speech by software engineers (instead of by Google itself as an artificial entity), but I'll be satisfied with baby steps.
But more importantly, the argument that search is a matter of subjective judgment (as opposed to a piece of intellectual property, for instance) seems relevant for understanding software more generally. I don't know what implications this has, but they seem to be very wide-reaching.
Ars Technica originally shared this post:
A prominent First Amendment scholar has co-authored a white paper arguing that search engines enjoy the same high level of First Amendment protections as traditional media outlets. Google commissioned…