Sen. J.D. Vance (R-OH) filed a brief in favor of Ohio Attorney General Dave Yost’s case against Google, arguing the big tech platform should be regulated like a common carrier, Breitbart News has learned exclusively.
Vance’s brief in the case encourages the court of common pleas to give the case a full hearing and explains the legal rationale for Ohio’s case.
The Ohio populist’s brief is in support of Yost’s motion for summary judgment and to oppose Google’s motion to dismiss the case.
In his brief, Vance calls out Google’s “hypocrisy,” as the big tech platform claims in varying legal cases that it is sometimes a “neutral platform” and other cases it is not a utility because Google search result webpages are “Google’s own creation or selection.” He wrote:
Whether this is true or not—and it is not—Google is playing fast and loose with the facts. Google has claimed the exact opposite about its search service in other cases and before other courts. When seeking to limit its liability for user content under Section 230 of the Communications Act, it has asserted that its search services are “neutral tools,” Google Rep. Mem., 2017 WL 3188006, Gonzalez v. Google, 282 F.Supp.3d 1150 (N.D. Cal. 2017), that are solely “information provided by another.” Google Br., 2018 WL 3496264, at *3, Marshall’s Locksmith Service, Inc.v. Google, 925 F.3d 1263 (D.C.Cir. 2019).
Indeed, this hypocrisy has led at least one federal judge to conclude it is “a fair point” that Google is judicially estopped from claiming that “the blind operation of ‘neutral tools’” [in its algorithms and other sorting techniques] is actually “editorial discretion.” NetChoice v. Paxton, 49 F.4th 439, 467–68 (5th Cir. 2022), cert. granted in part, 144 S. Ct. 477 (2023). In short, Google cannot claim that there are no factual questions about whether its services are susceptible to common carrier regulation suitable for resolution at this stage of litigation—because at the very least, this Court must determine which version of the facts about search engines Google actually asserts. [Emphasis added]
Amicus Brief by Breitbart News on Scribd
Vance argues that Google operates in many ways like a common carrier, saying “its functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
This follows a May 2022 ruling that Yost’s lawsuit against Google, which labels the tech giant a common carrier subject to special regulations and litigation, can proceed.
Vance and the Claremont Institute filed in September 2021 an amicus brief in support of this case against Google.
Common carriers are strictly regulated about who they can deny service to. Common carriers include utilities and telecommunications companies.
“Courts have held that infringing on a private actor’s speech by requiring that actor to host another person’s speech does not always violate the First Amendment,” wrote Ohio County Court Judge James P. Schuck wrote in his ruling. “There are several examples in which private companies involved in mass communications were prohibited from censorship.”
Professor Adam Candeub, who led the Trump administration’s efforts to curb tech censorship, told Breitbart News at the time that this was a welcome ruling.
“The court recognized that the First Amendment does not prevent reasonable anti-discrimination requirements on companies that hold themselves out as transmitters of speech,” Candeub explained.
The case is State of Ohio v. Google in the Delaware County Court of Common Pleas, No. 21 CV H 06 0274
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.
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