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Free Speech

Google Isn't a Common Carrier, Ohio Court of Appeals Rules

Eugene Volokh | 6.10.2026 2:27 PM

From State ex rel. Yost v. Google, LLC, decided Monday by the Ohio Court of Appeals (Judge Andrew J. King, joined by Judges Craig R. Baldwin and Robert G. Montgomery):

On June 8, 2021, the State filed a complaint against Google out of a concern that Google prioritized the information it provided that best boosted its bottom line instead of providing the most useful and relevant information to the public…. [It] sought a declaration that Google was a … common carrier under Ohio common law….

The court concluded:

Google Search is not a common carrier under Ohio common law. It fails under either prong of our traditional test. While the Attorney General points to facts such as monopoly power and suggests a more robust judicial intervention is required, we decline to depart from our precedent. Among other reasons, the apparent preemption and free speech issues, together with the expressive character of search outputs under the Munn framework, counsel against departing from our traditional two-prong test.

This conclusion is consistent with the historical limits of the common carrier doctrine, the practical mismatch between traditional rate regulation and modern platform economics, and the judiciary's proper role in deferring complex policy choices involving speech and technology to the legislative branch….

The court began with a broad historical outline; an excerpt:

The common carrier doctrine is one of the oldest bodies of Anglo-American law. Its roots lie in medieval English "public callings" i.e., occupations whose very nature required service to all members of the public without discrimination. The first reported case involved a ferryman in 1348. By the seventeenth century, the obligation extended to innkeepers, farriers, and carriers….

In Munn v. Illinois (1876), the Supreme Court upheld an Illinois statute fixing maximum rates for grain storage in Chicago warehouses, holding that when private property is devoted to a use in which the public has an interest, the owner may be forced to submit to regulation. The Court rejected the argument that such regulation violated the Fourteenth Amendment's Due Process Clause, affirming the state's broad police power to regulate businesses "affected with a public interest." … "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large." … "Common carriers exercise a sort of public office, and have duties to perform in which the public is interested." …

The Court went on to conclude that since every bushel of grain "pays a toll" that is a common charge, then it ought to be subject to public regulation that only a reasonable toll is to be extracted.  Although the legislature intervened rather than the judiciary, the Court found that to be without consequence; the doctrine applied the same….

Thus, after Munn, the doctrine had both established its constitutional blessing and had arguably expanded its reach, allowing for more legislative intervention. As this doctrine was applied in a myriad of contexts and to emerging technologies, the principle of non-discrimination emerged as a frequent........

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