This morning, the top of the Drudge Report blared “DOMINATE: GOOGLE SEEKS TO OWN .MOM, .DAD, .KID .. MORE.” The headline is just the latest example of a recent “dominate” meme on Drudge that paints Google as a lawless and sinister surveillance power. While the site has also blasted other tech players (such as Facebook over its stock swoon and Apple over labor issues), Google appears to be a favorite target. In recent months, Drudge has hit the company with dozens of negative headlines like “Dominate: Google ‘doesn’t trust anyone’” and “Google grabs secrets of private lives.”

The attention could prove a headache for Google given the Drudge Report’s influence in shaping media and political narratives. The site gained fame 15 years ago year by reporting on the Monica Lewinsky scandal and has since become an internet fixture with its mix of headlines that range from cannibal crime to the Iranian military threat.  In a report last year by David Carr of the New York Times, Gabriel Snyder, a veteran of Gawker and the Atlantic, described Drudge as “the best wire editor on the planet.”

The Drudge Report’s significance lies in its ongoing ability to drive traffic. Mashable reported last year that the Drudge Report far outstripped Twitter, Facebook and reddit in leading readers to news sites. With an estimated 14 million visitors, it is also regularly listed as one of the top three most popular political sites.

It’s unclear if Drudge’s anti-Google animus is personal or political. Even though both sites opposed an unpopular anti-piracy bill called SOPA last January, Drudge is a longtime conservative partisan and may be slamming Google because of the company’s connections to the Obama administration. Drudge did not reply to an email request for comment.

That’s the conclusion of a prominent First Amendment scholar commissioned by Google to make the case that the government can’t tell search engines how to design their results.

A Free Speech Right?

According to the report authored by UCLA law professor Eugene Volokh: “Google, Microsoft’s Bing, Yahoo! Search and other search engine companies are rightly seen as media enterprises, much as the New York Times Company or CNN are media enterprises” and deserve the same protections. It adds that search engines have the same freedom to choose a set of links as do news aggregators like the Drudge Report or the Huffington Post.

Search engine results are a form of opinion, says the report, in which companies offer information they think is most relevant to users.

In practice, this would mean Google has the right to punt sites like Yelp, which has complained that Google is a monopolist, to the search equivalent of Siberia if it decided that was best for users (Yelp now comes up second in a search for “restaurant review”).

The US has a long history of companies claiming First Amendment protections. One example is a newspaper that was allowed to exclude certain advertisers even though it had a “substantial monopoly.”

The courts have also made a few exceptions to the free speech rule. One case involved a publisher that was sued for providing inaccurate flight maps. Another involved cable providers which, a court said, did not have a free speech right to exclude certain channels.

Volokh’s report says those free speech exceptions don’t apply to search engines because, unlike cable providers, it’s not just a pipe for information. It also echoes Google position that consumers can easily use a competing search engine.

In an interview, Volokh said Google’s situation is also similar to a 1980′s case in which an author launched a failed suit against the New York Times’ over the accuracy of the newspaper’s weekly best-seller list.

Google’s strategy shift

In response to an email query, a source at Google explained Volokh’s report by saying, “we thought these issues were worth exploring in more depth by a noted First Amendment scholar.”

There is another likely explanation for Google’s decision to release the report — to thwart the government from regulating its search results. Recall that the company is in the middle of an ongoing federal investigation into whether it’s using its dominance to choke competition. If Google refuses to settle the matter, the Justice Department may consider filing an anti-trust suit.

Google may have released the report, then, to try and persuade government lawyers that they would lose an anti-trust case on First Amendment grounds.

The report also marks a strategy shift for Google. In the past, the company has responded to anti-trust allegations by saying that it didn’t have a dominant market position and that, in any case, it didn’t discriminate in its results. Google only claimed free speech as a fallback argument.

Now, Google appears to have given up claiming that its results are always neutral and is instead betting the farm on the First Amendment argument.

Only in America?

Courts so far appear to support Google’s view that search rankings are simply another form of opinion that is protected by the First Amendment.

In 2003  an Oklahoma ad company accused Google of harming its business when it downgraded the company in search listings. A federal judge threw out the case on free speech grounds. At the same time, in 2007,  a California court said Google’s rankings were “private property” in response to a company that complained that a low ranking violated its free speech rights.

Overall, in the US, Google may have a strong case that its free speech rights override the federal government’s antitrust concerns about its search results.

This argument, however, is unlikely to fare as well in other countries that lack America’s robust free speech protections. In places like Europe and South Korea where Google is also under investigation, the company’s claim that its results are an “opinion” could put it in deeper trouble.

Eugene Volokh, the author of the new report titled “First Amendment Protection for Search Engine Results” is also the author of a popular law blog called the Volokh Conspiracy.

Volokh First Amendment Paper Copy

(Photo by Aaron Amat)

“In response to questions about the use of Associated Press content on the Drudge Retort web site, the AP was able to provide additional information to the operator of the site, Rogers Cadenhead, on Thursday. That information was aimed at enabling Mr. Cadenhead to bring the contributed content on his site into conformance with the policy he earlier set for his contributors. Both parties consider the matter closed.

“In addition, the AP has had a constructive exchange of views this week with a number of interested parties in the blogging community about the relationship between news providers and bloggers and that dialogue will continue. The resolution of this matter illustrates that the interests of bloggers can be served while still respecting the intellectual property rights of news providers.”