Regulating AdWords: Consumer Protection in a Market Where the Commodity is Speech

Abstract:     
We should be elated, we should be concerned, yet we should not be surprised. Google² can read our minds, tell us what we want to purchase, assist us fulfilling our most personal and closely guarded desires, accelerate our businesses, update us on current events, make decisions for us, educate us, and keep us healthy. Some consumers "can't think of anything they don't search for". This Article hopes to increase the dialogue surrounding search engine regulation. Starting with the legal assumption that where there is a wrong there should be a remedy, this Article asserts that the judicial treatment of Google.com as a full First Amendment speaker is a dangerous precedent. Google is an advertising machine, and as a publicly traded company, its directors are obligated to increase the value of the organization by utilizing every tool at its disposal to get consumer eyes on ads. Google does not express an opinion in the traditional context of the First Amendment; by fostering a symbiotic balance between advertisers and searchers, Google amasses massive profits. Google's corporate interests, however, need to be weighed against societal values such as informational reliability and informational autonomy. Further, the traditional and often relied upon free-market checks fall apart in light of Google's rather un-savvy users. The most visceral danger would be to leave Google, with its ability to tactfully and discretely manipulate consumers, to its own devices. Finally, this Article proposes that the First Amendment does not absolutely bar potential Federal Trade Commission regulation of Google.

Number of Pages in PDF File: 49

Keywords: Google, AdWords, FTC regulation, search engines, Internet Law, Brand Loyalty, Commercial Speech

working papers series