The state of Ohio has sued Google on the theory that Google Search is a “common carrier” for the purposes of Ohio common law. If successful, the lawsuit could prevent Google from moderating the results that appear in Google Search and from tailoring those results to individual users based on their likely relevance. Google has asked a trial court in Ohio to dismiss the lawsuit on several grounds. And Cato has now filed an amicus brief supporting that motion to dismiss, explaining that forcing Google Search to operate as a common carrier would violate Google’s First Amendment rights (with thanks to our Ohio local counsel David Lockshaw).

In our brief, we explain that Ohio’s legal theory rests on the discredited view that the government has an obligation to guarantee equal rights of access to private publications. This theory was championed by progressive commentators in the 1960s and 1970s, but now it is ironically conservative states like Ohio that are leading the charge. As our brief explains, such efforts violate the First Amendment because they interfere with a private platform’s rights of editorial control. The Supreme Court has held that a newspaper has a right to choose what op-eds it prints and a parade has a right to choose which floats it hosts. A private website like Google has just the same right to choose what does and does not appear on every Google Search results webpage.

Our brief further explains that Google Search cannot be a “common carrier” under any traditional meaning of that term. Google Search is inherently customized, and core to its functionality is the tailoring of results to individual users. Unlike a telegram service merely carrying messages point to point, Google Search crafts a unique page for each user with every new search. That editorial control makes Google Search unlike any service that has ever previously been treated like a common carrier.

Ohio’s lawsuit is misguided, and the result Ohio asks for would be incompatible with the First Amendment. Before the case goes to trial, the Ohio trial court should dismiss the lawsuit and affirm Google’s First Amendment right to control what appears on its private website.