Background
Ohio Attorney General Dave Yost sued Google in June 2021, alleging the company prioritized information to boost profits rather than providing the most useful and relevant results. The complaint sought a declaration that Google qualified as a public utility or common carrier under Ohio common law, entitling it to state regulation. After dismissal of the public utility claim and bifurcation of proceedings, both parties filed motions for summary judgment on the common carrier issue. The trial court granted Google’s motion and denied the State’s, finding Google failed two essential elements of common carrier status.
On appeal, Attorney General Yost argued that Google satisfies every element needed for common carrier classification, emphasizing that Google’s search service is the gateway to information for most Ohioans and that users deserve the protections afforded to common carrier customers. Google countered that its editorial curation of search results—not neutral transportation—distinguishes it from traditional carriers.
The Fifth District Court of Appeals reviewed the summary judgment de novo and affirmed, establishing that Ohio’s well-established common carrier test requires both (1) actual transportation of property or persons of others, and (2) holding out to serve the public indiscriminately.
The Court’s Holding
Google Search does not qualify as a common carrier under Ohio common law. The court held that Google fails on both prongs of the traditional test. First, Google does not transport the property of others. A user submits a query (their own words), and Google responds by consulting proprietary indices, applying ranking algorithms, making relevance judgments, filtering results, and assembling a new, curated Search Results Page. This is editorial curation and synthesis, not carriage. Traditional common carriers accept existing goods or messages from shippers and transmit them substantially unchanged; Google creates its own expressive product. The court rejected the State’s attempt to characterize underlying “information” as transported property, finding that interpretation inconsistent with how Ohio courts have understood the carrier prong.
Second, Google does not hold itself out to serve the public indifferently. The court noted that traditional common carrier regulation focuses on whether rates are just, reasonable, and nondiscriminatory. Google provides search at no charge to users; its revenue comes from advertising, not user fees. There is no traditional “rate” for courts to regulate or adjust. Moreover, the State’s core complaint concerns editorial output—ranking, presentation, and curation of results—rather than pricing. The common law of common carriers supplies no template for regulating the editorial output of a free service whose business model depends on advertising, not user payments.
The court also declined to adopt a broader Munn-standard approach based on Google’s monopoly-like status and ubiquity. While Munn supplied a constitutional justification for legislative intervention in businesses “affected with a public interest,” it did not authorize courts to impose common carrier status on new technologies whose core function is editorial curation. The court emphasized that if the legislature concludes search engines warrant regulation, it may enact appropriate legislation, but courts should not accomplish through judicial reinterpretation what the legislature has not chosen to do.
Key Takeaways
- Google’s search results constitute editorial curation and original expression, not neutral transportation of third-party content.
- The common carrier doctrine—rooted in medieval English law and applied to railroads and telecommunications—does not extend to platforms that create and curate their own expressive products.
- A free, advertising-supported business model cannot be regulated under traditional common carrier rate regulation frameworks designed for paid services.
- Federal law distinguishes “information services” from telecommunications common carriers; state common carrier classification would conflict with federal policy.
- Regulatory schemes compelling platforms to carry or display speech they would otherwise de-emphasize raise serious First Amendment concerns and belong to the legislature, not courts.
- Market dominance and ubiquity, without more, do not justify novel judicial intervention or departure from established common carrier doctrine.
Why It Matters
This decision resolves a critical question in the ongoing debate over technology platform regulation: whether courts can apply century-old common carrier doctrine to modern search engines and social media. The Fifth District’s answer is no—at least not through judicial reinterpretation of existing law. The opinion acknowledges legitimate policy concerns about Google’s outsized influence over information flow and notes Congressional investigations into government-platform communications regarding content moderation and alleged viewpoint discrimination. However, the court holds that the common carrier framework is simply the wrong tool for this problem.
The decision has profound implications for how platform regulation will proceed. States or Congress cannot rely on courts to impose common carrier obligations on search engines or social media through traditional doctrine; any regulatory scheme must come through new legislation specifically tailored to digital markets and two-sided, free-to-consumer business models. The opinion also fortifies First Amendment protections for private platforms’ editorial discretion, preventing end-runs around free speech protections through common carrier regulation. Attorney Generals and regulators must now choose between legislative advocacy for new statutes or defending their existing regulatory authority against federal preemption challenges.