Floyd Abrams is the author of “The Soul of the First Amendment.”
President Trump’s chief economic adviser, Larry Kudlow, announced Tuesday that the administration is “taking a look” at regulating Google’s conduct, given Trump’s complaints earlier in the day that the company’s search results suppress conservative views. Kudlow’s statement raises First Amendment concerns of the highest magnitude.
According to the president’s predawn tweets, Google’s supposed bias is revealed by the too “prominent” role it affords to “Fake CNN” while shutting out “Republican/Conservative & Fair Media.” Responding to the criticism, Google said: “When users type queries into the Google Search bar, our goal is to make sure they receive the most relevant answers in a matter of seconds. Search is not used to set a political agenda and we don’t bias our results toward any political ideology.”
Google’s fairness is not only an apt topic for public debate but also an essential one. If it were true, as the president claims, that with biased search results the company is “hiding information and news that is good” about his administration, Google would deserve harsh criticism. And if, on the contrary, the president’s tweets were themselves not only unsubstantiated but simply a reflection of the fact that more critical than supportive articles appear in major media, so would he.
That sort of debate is healthy. What is potentially dangerous is the assertion in the president’s tweets that “This is a very serious situation-will be addressed!” and Kudlow’s intimation that a regulatory response was actually being considered. Of course, Trump and Kudlow may not mean it. Or they may mean it and will not pursue it further. But one cannot tell, and so when such statements are made, it is worth responding immediately: Any such government action would constitute a particularly egregious violation of the First Amendment.
Think of it. Shall we really allow the government, any government, to pass judgment as a matter of law on the choices made by Google and Facebook and the like in providing information to people who seek news about a public official? The very search results objected to by Trump were in response to the words “Trump News.” Is it conceivable that we would allow a Trump administration-appointed official body of some sort to decide whether the president was accurate in his complaints that “bad” news about his administration was being exaggerated while “Google & others are suppressing voices of Conservatives and hiding information and news that is good”? Or that “96% of results on ‘Trump News’ are from National Left-Wing Media”? More broadly, how could any such governmental action be consistent with the First Amendment, which was adopted as a protection against government itself?
There are, of necessity, some ambiguities in First Amendment law. Times change, and we cannot know what Madison, Jefferson and their colleagues would have made of cases involving bakers of wedding cakes who choose not to sell them to gay couples. What we do know is that, as Supreme Court Justice Robert H. Jackson put it in 1945, the core of the First Amendment is rooted in the view that “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” And that, as Justice William O. Douglas observed in 1973, “the struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people.”
So let the debate continue about what news is fake and what real, and about whose search engines provide the most reliable responses. But let’s leave any government regulation out of it.