From State ex rel. Yost v. Google, LLC, decided Monday by the Ohio Court of Appeals (Judge Andrew J. King, joined by Judges Craig R. Baldwin and Robert G. Montgomery):
On June 8, 2021, the State filed a complaint against Google out of a concern that Google prioritized the information it provided that best boosted its bottom line instead of providing the most useful and relevant information to the public…. [It] sought a declaration that Google was a … common carrier under Ohio common law….
The court concluded:
Google Search is not a common carrier under Ohio common law. It fails under either prong of our traditional test. While the Attorney General points to facts such as monopoly power and suggests a more robust judicial intervention is required, we decline to depart from our precedent. Among other reasons, the apparent preemption and free speech issues, together with the expressive character of search outputs under the Munn framework, counsel against departing from our traditional two-prong test.
This conclusion is consistent with the historical limits of the common carrier doctrine, the practical mismatch between traditional rate regulation and modern platform economics, and the judiciary’s proper role in deferring complex policy choices involving speech and technology to the legislative branch….
The court began with a broad historical outline; an excerpt:
The common carrier doctrine is one of the oldest bodies of Anglo-American law. Its roots lie in medieval English “public callings” i.e., occupations whose very nature required service to all members of the public without discrimination. The first reported case involved a ferryman in 1348. By the seventeenth century, the obligation extended to innkeepers, farriers, and carriers….
In Munn v. Illinois (1876), the Supreme Court upheld an Illinois statute fixing maximum rates for grain storage in Chicago warehouses, holding that when private property is devoted to a use in which the public has an interest, the owner may be forced to submit to regulation. The Court rejected the argument that such regulation violated the Fourteenth Amendment’s Due Process Clause, affirming the state’s broad police power to regulate businesses “affected with a public interest.” … “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.” … “Common carriers exercise a sort of public office, and have duties to perform in which the public is interested.” …
The Court went on to conclude that since every bushel of grain “pays a toll” that is a common charge, then it ought to be subject to public regulation that only a reasonable toll is to be extracted. Although the legislature intervened rather than the judiciary, the Court found that to be without consequence; the doctrine applied the same….
Thus, after Munn, the doctrine had both established its constitutional blessing and had arguably expanded its reach, allowing for more legislative intervention. As this doctrine was applied in a myriad of contexts and to emerging technologies, the principle of non-discrimination emerged as a frequent judicial explanation for intervention; these courts usually held that common carriers must “serve the public without partiality and without unreasonable discrimination.” But it is fair to say that legislation intervention has become more common.
As new technologies and market conditions emerged, the doctrine adapted, primarily through legislative action. Railroads prompted the Interstate Commerce Act of 1887; telegraph and telephone companies were regulated under the Mann-Elkins Act of 1910 and the Communications Act of 1934 (Title II). Consumer protection concerns, particularly the need to curb monopoly power and combination that drove rates to excessive levels, supplied an important justification for rate regulation.
It then laid out and applied the Ohio law of common carriers:
Ohio’s common law definition of a common carrier is well-established. A common carrier is one who, as a regular business, undertakes for hire to transport persons or property from place to place and holds itself out to the public as ready and willing to serve all members of the public indifferently.
Two distinct elements must be satisfied: (1) the carrier element – actual transportation of the property (or persons) of others; and (2) the common element – holding out to serve the public indiscriminately….
[A.] Google Does Not “Transport” the Property of Others (The Carrier Prong)
Typically, when we are considering the carrier prong, we are asked to review the transportation of property or people. That is not the case here. As discussed in several of the cases cited above, a carrier handles the property akin to a bailment. It is simply moving it from one place to another. At its most general, the core concern of this prong is receiving the property of another and returning it unaltered after transporting it or transporting a person from one point to another.
Based on the facts before us, we conclude that Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage. The trial court correctly rejected the State’s attempt to treat underlying “information” as the transported property. See Richards v. Google LLC (W.D.Va. 2026); Zhang v. Baidu.Com Inc. (S.D.N.Y. 2014).
The State’s analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user’s own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State’s complaint centers on the return leg – the SRP Google delivers back to the user.
That return data is not the user’s property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google’s own expressive product, not the user’s or any third party’s property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper’s or speaker’s existing goods or message and deliver them substantially as received. Google does neither on the return leg. {Google fails the carrier prong on the undisputed facts.}
We acknowledge the test announced in Munn [as to legislative regulation] is plainly broader than how Ohio courts have looked at the question of judicially regulating a common carrier…. But here there is … [no] statute for us to consider …. Moreover, we observe that the Ninth Circuit questioned the application of the common carrier doctrine to Google Gmail, which appears to function more like a common carrier than Google’s search function….
[B.] Google Does Not Hold Itself Out to Serve the Public Indifferently (The Common Prong)
Perhaps the most defining characteristic of common carrier status, in all its forms, has been the obligation to serve the public without unjust discrimination, or stated in the affirmative: to provide the service on indifferent terms. Historically, the primary remedy associated with this obligation was judicial or regulatory oversight to ensure that rates were reasonable, properly differentiated according to cost and competitive conditions, and free from unjust or arbitrary discrimination. We turn now to that consideration.
Google’s pervasive presence in modern life is undeniable. For many Ohioans, Google Search is the de facto gateway to information. Even assuming for the sake of argument that Google’s Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General’s concern lies primarily with outputs – the ranking, presentation, and curation of search results.
At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable.
Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional “rate” for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.
Thus, even if one were to accept the State’s position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments. The trial court concluded correctly that Google does not hold itself out to serve the public indifferently in the sense required by the common carrier doctrine.
[C.] Ubiquity, Monopoly Power, and the “Affected with a Public Interest” Doctrine
The State argues that Google’s search engine has become so ubiquitous and central to modern life that its business is “affected with a public interest” in the sense articulated by Lord Chief Justice Hale and the Supreme Court in Munn. There is no question that Google Search exerts enormous influence over the flow of information. Consumer protection and monopoly concerns have historically justified regulation of true common carriers.
However, the “affected with a public interest” principle supplies a constitutional justification for legislation and regulation; it does not dispense with the common carrier doctrine’s two core requirements for judicial intervention….
The essence of the judiciary is to resolve disputes between the parties and not to engage in extensive, top-level policy making that the legislative branch is better equipped to handle…. [U]biquity and market share do not justify novel judicial intervention here. Munn supplied a constitutional justification for legislative intervention in a natural-monopoly setting; it did not authorize courts to judicially impose common carrier status on new technologies whose core function is editorial curation rather than neutral transport….
The court also suggested that any common carrier finding might be federally preempted, because “Congress and the FCC have long distinguished ‘information services’ (a category that includes search engines) from traditional telecommunications services subject to common carrier regulation.” And it noted that any common carrier conclusion might violate the First Amendment:
[T]he core concern underlying this litigation is the regulation of Google’s editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.
We do not discount the legitimate policy concerns that animate the State’s position. Google’s dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.
But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google’s search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech…
Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google’s search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch….
Michael R. Gladman, Justin E. Herdman, Molly M. Dengler, John E. Schmidtlein, Kenneth C. Smurzynski, and Gloria K. Maier represent Google.
Note that Don Falk and I argued in a 2012 paper commissioned by Google that Google indeed has a First Amendment right to pick and choose what goes in search results; that article was cited in Zhang v. Baidu.com, which the Ohio court cited in turn.
The post Google Isn't a Common Carrier, Ohio Court of Appeals Rules appeared first on Reason.com.
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