The Attorney General Challenging Google’s Monopolistic Censorship Explains His Case

The Attorney General Challenging Google’s Monopolistic Censorship Explains His Case

'We are not trying to regulate Google. We are trying to get recognition that they have a higher duty to the public, and that’s the extent of our lawsuit.'
Paulina Enck
By

Ohio Attorney General Dave Yost believes Google is a monopoly that should be treated accordingly. Earlier this month, he filed a lawsuit to have Google declared a common carrier (or public utility) under state law.

Yost and I spoke about the lawsuit and the monopolistic role of Big Tech, particularly Google, in American life. Here’s what we discussed, in an interview edited for clarity.

Could you explain what the tipping point was that made you and the state of Ohio realize Google needed to be dealt with, due to their monopolistic power?

It’s the fact that Google dominates search. They far exceed the threshold of thinking about it in terms of common carrier/public utility. For example, on mobile platforms, they pay Apple handsomely to be the default search engine on their phones. This disadvantages anyone in the marketplace that would like to be able to have the same kind of consideration that Google gives its own products in search results.

Due to Big Tech’s outsized role and active censorship, many hope this case could shift the tides and hold Google to a higher standard. To what extent is the First Amendment involved in this case?

The First Amendment applies to the government, not private industry. Because the government has a monopoly on the use of force and coercive power, we don’t want them drawing the line of what’s permissible and impermissible. That diminishes freedom.

When you get a company as big as Google — and Google is bigger than many governments around the world — they are large enough in terms of power to rival the United States government. And they can do things the United States government could never do: promote or demote search results based on content. That’s philosophical. That’s not what this lawsuit is directly about.

This lawsuit is saying, “OK Google, because of what you do, how you do it, how dominant you are in the marketplace, you now have — under Ohio law  — a heightened duty to treat everybody without bias.”

It’s possible if they are a public utility (or common carrier), with that heightened duty to the public, they may have a duty not to jigger with the algorithm based on the content of the search results. But that’s not subject to the lawsuit. We’re simply seeking a declaration that under Ohio law, they now sit under the definition of a common carrier or public utility.

There are a lot of major tech companies that seem to have monopolistic control over their market segments, namely Facebook and Amazon. Why did you choose to focus on Google?

My name is David, and I don’t mind fighting Goliath, but I’d just as soon not fight an army of Goliaths.

Why did we pick Google? Because everyone uses search, all the time, every day, for everything. It is the single most dominant tech platform in our lives. If Google is legally a common carrier/public utility, then others might be — but if Google is not, then none of them are.

Some detractors have alleged this lawsuit is state interference with a private company. Since Google’s primary function, and the focus of the lawsuit, is information, others have raised free speech concerns. What is your response?

We are not trying to regulate Google. We are trying to get recognition that they have a higher duty to the public, and that’s the extent of our lawsuit. How they respond to that legal duty is up to them.

We are not seeking monetary damages. We are not trying to break them up. We are not trying to play “Mother may I,” or enforce get-permission-from-the-government kind of regulation. This is a very limited and kind of elegant legal question, because it doesn’t bring in a lot of the other questions that might be involved with the government telling Google how to do its business. We say, “Google, here’s the duty you owe to society. Live up to it.”

Free speech is something we’ll end up talking about in this litigation or litigation that springs from this lawsuit. Google is still free to say anything they want. We’re not seeking to compel them to say something they don’t want. All we’re saying is in the utility part — the Google search — you’ve got to take your thumb off the scale. You’re not allowed to edit and get rid of stuff you don’t like, because you have this heightened duty.

Do you believe this lawsuit could have an impact on the role of Big Tech in society?

Well, not if we don’t win. If we don’t win the declaratory judgment, it will have no impact whatsoever. I suspect that everybody will be watching this litigation really closely.

To better understand the role of big tech and politics in this lawsuit, I also spoke with Kara Frederick, a research fellow in the Center for Technology Policy at The Heritage Foundation.

Can you speak to the ideological censorship in which these gigantic tech companies have been engaging?

The traditional gatekeepers of information — not just tech companies, but prestige media, the academy, entertainment, other big corporations  — really do appear enthralled to one particular ideology. There is viewpoint discrimination, not just on Big Tech’s part, but through the organs of the culture.

We saw this very clearly this past election season, with what Twitter and Facebook did to suppress the flow of information when it came to the New York Post reporting on the Hunter Biden laptop story. You’ll remember in January, when Democrat politicians said, “Donald Trump is a danger. He should be off these platforms,” 17 platforms in the next two weeks had kicked him or banned him or suspended him from their services. There’s a public pressure element, as well as a government one, to viewpoint censorship.

Democrats are calling for more. They don’t think tech companies are doing enough to stem the flow of information from people who go against the mainstream leftist ideology. As these tech companies continue to actively insert themselves between the user and content in increasingly political ways that are starting to have political effects, everybody should be worried.

Do you believe companies like Google are monopolies, or have a monopoly on the flow of information?

In terms of having a more nebulous monopoly on the flow of information, these platforms — by their size, their scale, their reach, and their ability to control information — really hinder the growth of viable alternatives.

You can’t really go wrong when you cite Clarence Thomas, and in his Biden v. Knight First Amendment Institute concurrence in April, he basically said there have to be genuine comparable competitors and alternatives. He goes on to say when you assess a company’s substantial market power, what matters is whether the alternatives are viable. For many of today’s digital platforms, nothing is.

Along with more traditional ideological censorship, Google is able to augment liberal speech while suppressing conservative content. A quick search on any political subject shows liberal papers will appear before conservative ones. YouTube has also been incredibly tough with its content. Could you speak to Google’s particular brand of censorship?

To preface this, as conservatives, we believe in a free market and free enterprise. But I think it’s worth noting Google controls 90 percent of all general search engine queries right now.

Google and Apple together control close to 100 percent of the global market share from mobile operating systems. That’s a prodigious amount of power. When you start to abuse that power — downranking search returns and whatnot — everybody should be concerned.

They have their community guidelines, but these are based on sometimes nebulous and overly broad conceptions of harm and hate. They have purposefully opaque rules, inconsistent application, and a lack of transparency and genuine recourse when these rules are supposedly violated.

Americans have to start clamoring for clarity, putting pressure on these companies. In 2019, Mark Zuckerberg got up on the Georgetown stage and said ‘We want to stand up for freedom of expression.’ He had this refrain, that more speech is the best antidote to bad speech.

Google’s “Don’t be evil” motto was very consistent along these lines. People need to start calling out when these companies don’t advocate the values they profess to stand for. Notice — Google doesn’t say “Don’t be evil” anymore.

Paulina Enck is a writer who recently graduated from Georgetown University’s School of Foreign Service with a degree in Global Business. Follow her on Twitter at @itspaulinaenck

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