Everyone with a pulse is well aware of the Google Empire's dominance over the World Wide Web. The company is well known for its insistence on secrecy, and for protecting its algorithm as if it were the Holy Grail. This is news to no one, except for the folks on the New York Times editorial board. Much like Rip Van Winkle, they suddenly woke up sometime yesterday only to discover that Google is for all intents and purposes a fully-fledged monopoly! The Horror! In the midst of their stupor, they concocted a feeble plea for government intervention, although they never bothered to expound on their musings that maybe Google should explain themselves to someone, or perchance yet another government commission could oversee the company's complex formulas.

The Times' criticism seems timely enough, as Google is facing numerous ongoing legal battles in Europe, of an antitrust nature. Not that its fairing much better at home, where its being probed by the United States government once again, this time over its recent acquisition of a travel software company. Now the Times staff admits that this move is merely a keyword into looming concerns about its unchecked power over the search engine market. Its reservations seem to revolve around shady business practices that essentially utilize censorship to benefit Google affiliates; these sinister ploys unquestionably destroy independent companies on a daily basis.

Writer Danny Sullivan, of searchengineland.com, correctly identifies this argument as one invoking First Amendment concerns, but his analysis fails to recognize fundamental flaws with this line of reasoning. He cites two cases in order to make his point: Kinderstart v Google (2007) and SearchKing v Google (2003). Both cases were dismissed, although neither establishes a meaningful precedent because they never made it to the Supreme Court. The judge's opinion in Kinderstart is worth quoting a length because it explains a few tidbits Sullivan and the Times editors should probably commit to memory:

"KinderStart alleges that Google has violated its rights under the Free Speech Clause of

the First Amendment to the United States Constitution. See U.S. Const. amend. I. (providing that

"Congress shall make no law . . . abridging the freedom of speech."). Demonstration of state

action is "a necessary threshold" that a plaintiff must cross before a Court can consider whether a

plaintiff's First Amendment rights have been infringed. George v. Furlough, 91 F.3d 1227, 1230

(9th Cir. 1996). In the case of private-party defendants, a plaintiff must show that "the private

parties' infringement somehow constitutes state action." Id. at 1229 (citing Dworkin v. Hustler

Magazine, 867 F.2d 1188, 1200 (9th Cir. 1989)). The Supreme Court has articulated four

different approaches by which to identify state action in different contexts: (1) public function;

(2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus. George

v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230-32 (citing Lugar v. Edmondson Oil Co., 457

U.S. 922, 939 (1982)). The Ninth Circuit also has applied the "symbiotic relationship" test to

identify state action. See, e.g., Brunette v. Humane Society of Ventura County, 294 F.3d 1205,

1213 (9th Cir. 2002) (citing Burton v. Wilmington, 365 U.S. 715 (1961)). "Satisfaction of any

one test is sufficient to find state action, so long as no countervailing factor exists." Kirtley v.

Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citations omitted).

KinderStart argues that First Amendment protections apply in the instant action because (1) there is a close nexus between or entwinement of Google and state agencies; (2) a symbiotic

relationship exists between Google and state agencies; and (3) Google's search engine is a public

forum.15 For the reasons discussed below, the Court concludes that KinderStart has not

sufficiently alleged state action under any of these theories.16"

Hence, plaintiffs cannot claim First Amendment violations from nongovernmental entities unless their actions meet all four of the parts of the Court's criteria. In other words, this case does not prove that search engine results constitute protected speech under the First Amendment. In fact, this case is entirely irrelevant to the discussion; in SearchKingGoogle invoked the First Amendment as a last ditch effort to save itself from potential ruin, and some judge in Oklahoma actually bought into it. Naturally, Google has no obligations of impartiality, especially in an instance without a contractual agreement, which is why the kind of claim lacks legal merit.

But to blindly accept the notion that Google's deliberate manipulation of its algorithm qualifies as constitutionally protected "opinion" is a bit of a stretch. Sullivan goes out of his way to downplay the monopolistic nature of Google's stranglehold on the industy. The internets are all aflutter about Google supposedly losing ground to Yahoo and Bing, but these figures don't tell the whole story. These stories cite that Google only represents approximately 62% of the market, which is pretty hard to believe. Ask yourself this question: do you know anyone who doesn't use Google more or less exclusively?

I didn't think so.