A LITTLE TOO EARLY TO CELEBRATE OHIO’S “WIN” OVER GOOGLE

The Ohio Attorney General’s office is sending out press releases about a recent “victory” in his suit, pending in the Common Pleas Court for Delaware County, Ohio, wherein he has alleged that Google is a “common carrier” subject to regulation as a public utility.  There are a few reasons why it may be a little early to be spiking the football.

For starters, the court decided on the basis of a motion to dismiss, that Google is not a public utility.  So the State already lost one part of his suit.  In addition, the effect of the ruling on Google’s status as a common carrier is simply that the case can proceed to discovery.  The court says in its decision “[i]It is presently unknown what exactly the attendant duties on Google Search might be if it is declared to be a common carrier.”  The State won the coin flip, but the outcome of the game is yet to be decided.  Again, it’s a little early to be celebrating.

And it’s a real question whether the State will ultimately prevail on the merits.  Here’s a compelling article by Eric Goldman that pokes some large holes in the theory underlying the case.  Indeed, to the extent the case concerns what Google can and can’t prioritize on its search results, it is wading into some choppy First Amendment water.  There is considerable precedent for the notion that The First Amendment protects a publisher’s right to exercise editorial discretion.  And it’s hard to see how the court can impose any remedy without making content based rulings on Google’s speech.

If the State has purchased champagne to celebrate here, it probably better keep those bottles on ice.