Mainstream search engines derive their principal source of revenue from advertising. [1] Pay Per Click Advertising (hereinafter “Paid Placement”) is one of the most widely utilized advertising practices, offering content providers the opportunity to create short textual advertisements hyperlinked to their website. [2] Providers bid on keywords associated with their advertisement, [3] and when a user incorporates these keywords into his or her query, the provider’s textual advertisement will appear along with the engine’s organic results. [4] Generally speaking, mainstream search engines segregate these results, and refer to them as “Sponsored Links,” “Sponsored Matches,” or “Sponsored Results” [5] (hereinafter collectively referred to as “Sponsored Results”). These results most often appear in a separate column or are arranged directly above the search engine’s organic results. [6]

Despite Paid Placement’s utility from a marketing perspective, the practice has been sharply criticized. [7] Some authors argue that a search engine’s failure to clearly segregate Sponsored Results leads many users to believe they are delivered based on relevancy alone. [8] These authors argue that this misconception can only be corrected by incorporating uniform regulations for presenting Sponsored Results. [9]

Although these regulations are well-intentioned, requiring a normative framework for arranging Sponsored Results may come at a price. The right to freedom of speech necessarily includes the right not to speak. [10] Imposing a regulatory framework for presenting Sponsored Results would be akin to forcing a search engine to speak. [11] Whether this amounts to a First Amendment violation raises two questions: First, does the act of providing search results constitute a protected form of expression? Second, if so, what level of protection should this expression be accorded? [12]

This Note examines the constitutionality of regulating Paid Placement under the First Amendment’s freedom of speech guarantee. Part I of this Note provides an overview of how mainstream search engines operate and describes the controversy surrounding Paid Placement. Part II argues that the act of providing search results constitutes an expressive activity that falls within the ambit of the First Amendment. Part III examines whether regulating Paid Placement warrants exacting review; or, in the alternative, the commercial speech doctrine’s more deferential brand of scrutiny. Part IV argues that even if Paid Placement constitutes commercial speech, imposing a uniform set of regulations in this context does not materially advance the governmental interest in promoting informed online decision-making. Finally, Part V provides suggestions on structuring regulations in the event governmental intervention becomes a reality….

 

Peter T. Tschanz*