Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, this Google decision is here. court.co.delaware.oh.us/eservices/sear…

21 pages, so let's do a quick read

https://twitter.com/AkivaMCohen/status/1529535223435862016

First of all, this just denial of a motion to dismiss. It's not a final ruling. Second, here's the Court's discussion of Ohio common-carrier law. (You can see immediately why this might apply to Google but definitely not to social media)

Ah. Yeah, this is a pure "on a motion to dismiss, the Court can't consider reality, just what was alleged in the complaint" type of ruling.

To recap, the question for a court on a motion to dismiss is "if what the complaint alleges is true, would the plaintiff be entitled to relief", and so the court answering that question can't consider anything outside of (or not referred to in) the complaint.

Google apparently responded to the complaint by arguing that elsewhere it specifically explains that it doesn't "indiscriminately search and return results" but instead applies judgment, which, if true (and it is true) would seem to be a complete defense. But ...

It's not one the court can consider at this stage of the proceedings.

And there's good reason for that. At the motion to dismiss stage, the plaintiff hasn't gotten to take discovery. So the court isn't just going to take the defendant's word for it when they say

Same goes for whether Google is "carrying" anything at all; the Judge basically just goes "look, I'm not deciding that on this record"

Google also makes an argument that it can't be a common carrier because users don't pay it, so it's not "for hire"; we've seen this in other contexts and the law is pretty clear that indirect financial benefit (like "we gather and sell your data" or "someone else pays") is enough

Based on that, the court allows the state's "common carrier" claims to proceed to discovery.

Nothing particularly earth-shaking here

But that's not the end of the opinion. The state of Ohio ALSO tried to argue that Google should be treated as a public utility.

I'm doing a live read and all I know is the motion to dismiss was granted in part and denied in part, but I don't think this ends well for Ohio

And no. It doesn't

Gonna skip over some of the background caselaw but the court's like "come on, guys, nobody has a right to an internet search provider, this is silly"

Google also asserted a First Amendment defense, but the court isn't going to dismiss on that because: 1) A declaration that Google is a common carrier under the standard common carrier rules wouldn't be a 1A violation, & 2) whether the injunction requested would violate the 1A is

a fact question the court can't answer on a motion to dismiss. What are the 1A rights of a common carrier? What's the state interest? What's the burden? That all needs to wait for a later stage of the proceedings

That said, the court slips into the rules that will impact the merits and, as far as I can tell, gets them wrong for all the reasons the 11th Circuit just laid out

I mean, the Supreme Court *overturned* that "right of reply" statute in Miami Herald. What are you doing?

This distinction is very clearly untrue, as laid out by the 11th circuit. No reader was going to be confused by the "right of reply" in the newspaper. And the reference to Mergens is mindless; in the freedom of religion context, perceived endorsement *is the violation*

That is NOT the concern in compelled speech cases. Even if the statute says I can include a "this is forced by the government and I disagree with it" disclaimer, the state of NY cannot compel me to speak a message I don't want to.

Bottom line: the decision is 100% right on public utility, right, I think, on leaving common carrier to fact litigation, and scarily wrong on the 1A - but it's also only a county level state trial court, so that's not entirely unexpected, even for a judge who clerked in SD OH

The end