Washington, D.C. — In response to news that Judge James P. Shuck vacated the trial date in the State of Ohio’s lawsuit against Google–less than 24 hours after Google made a surprise submission invoking the Supreme Court’s NetChoice decision, and without waiting for Attorney General Dave Yost’s responsive filing–the American Economic Liberties Project released the following statement.

“Facing scrutiny of its monopoly power, Google is once again using legal tricks to avoid accountability,” said Laurel Kilgour, Research Manager at the American Economic Liberties Project. “This case has been pending for over three years, and every additional day of delay is another day Google has free rein to pick winners and losers in search results–usually choosing its own conglomerate services as the winners, even when data shows users prefer results based on the merits. Google’s latest stunt–citing non-binding dicta from NetChoice in a recent filing after Judge Shuck asked parties to address the common carrier question first–is not only irrelevant, but also a blatant attempt to derail the trial. We urge the court to see through this ploy and get this trial back on the calendar.”

Filed June 8, 2021, State of Ohio ex rel. Dave Yost v. Google LLC is the first case in the country seeking to designate a technology platform as a “common carrier.” Over hundreds of years, this traditional legal doctrine– which requires dominant firms to offer all users equivalent, non-discriminatory terms– has been successfully adapted to a variety of new technologies and business models for transmitting information, from telegraphs to telephones to television networks, as well as other industries ranging from railroads to banking. The case has attracted high profile attention, including dueling amicus briefs from libertarian conservatives (the Cato Institute) and populist conservatives (Senator and now Vice Presidential candidate J.D. Vance).

On August 22, 2022, the court granted Ohio’s motion to bifurcate the case schedule to address the threshold question of whether Google is a common carrier before evaluating Google’s defenses, including any First Amendment issues. The now-vacated trial date of September 3, 2024 had been calendared since May 2023. Summary judgment briefing was completed in March 2024, and Judge Shuck granted Google an extra opportunity to respond to amicus briefs in April 2024.

The Supreme Court issued its NetChoice v. Paxton decision on July 1, 2024. The majority opinion does not address the question of whether tech platforms are “common carriers” and does not even use the phrase. As concurring opinions spanning the ideological spectrum noted, the majority’s holding is narrow and most of its discussion regarding the First Amendment is nonbinding dicta. Nonetheless, Google submitted a “notice of supplemental authority” about the NetChoice case on July 8, 2024, and Judge Shuck vacated the trial date less than 24 hours later on July 9, 2024. Attorney General Yost submitted Ohio’s response on July 10, 2024.

Read more about the NetChoice decision here.

Read the Big Tech Guide for State Lawmakers on common carrier rules here.

Learn more about Economic Liberties here.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.