Wow.
That specific paragraph is some pretty weak analysis. Elsewhere they
discussed the Communications Act of 1934 as an example of codification
of common carrier law. Clearly, that's about carriage of information and
not goods, so there's nothing new about the internet age in that respect.
I read through the opinion about whether the case survives Google's
motion to dismiss. The state won on whether the case can proceed in
which Google might be determined to be a common carrier but Google won
the dismissmal on whether it's a public utility.
I had no idea there were court cases in which offering an elevator or
escalator within a facility made the device a conveyance and the facility
operator a common carrier in operating that device within the meaning of
common carrier law.
If I was thinking about Google Search, I'd be thinking about it with
respect to whether a contract for carriage exists with respect to the
publisher of the Web page and not the user and whether that imposes a
duty of neutrality within its duty to serve the public indiscriminately.
Nothing in the opinion discusses the issues from that perspective.
State of Ohio made some lousy arguments that Google Search is a monopoly
and therefore a public utility. (Public utilities are a subset of common
carriers.) They couldn't cite any statute Google is regulated under and
Google is specifically excluded from Ohio's public utility law with
respect to being regulated by its public utilities commission. Absense
of such a law doesn't immediately exclude a business from being a public
utility but it is a major factor in making such an exclusion.
The opinion specifically states that being described in Section 230
(Telecom Act of 1996, federal law) isn't public utilities law with
respect to the state of Ohio.
Furthermore, the public has no legal right to demand Search of Google,
so it's not a public utility in that respect.
With respect to free speech, the common carrier designation in and of
itself isn't an infringement upon Google. It's the burdens upon Google
that accompany the designation.
Here, the opinion says that an intermediate scrutiny test must be
satisfied. I thought strict scrutiny applies. I don't get this. It says
that a law that compels specific speech is subject to strict scrutiny
but a law unrelated to the content of speech is subject to intermediate
scrutiny.
The speech issue is poorly treated by the opinion but then, the parties
have not developed a factual record which is why the opinion is not
developed at all in this respect. I'm really unhappy with the idea
that compelling Google, a speaker, to host another party's speech meets
the intermediate scrutiny test ignores the burden placed on Google that
the arrangement of the search results themselves are an application
of Google's editorial judgement and therefore publishing and Google
should win here on the basis of freedom of the press.