Amicus Brief Urges Ohio Court of Appeals to Uphold State’s Authority to Designate Google as a Common Carrier
Washington, DC (November 17, 2025) - The Open Markets Institute filed an amicus brief in State of Ohio v. Google, urging the Fifth District Court of Appeals of Ohio to recognize the state’s authority to designate Google Search as a common carrier—just as courts and legislatures have long done for railroads, telegraphs, telephones, and other corporations that hold themselves out to serve the public.
The brief traces more than three centuries of legal tradition establishing that when a company dedicates its services to public use, courts and legislatures can require it to operate in the public interest and without discrimination. This longstanding doctrine—common carriage—was developed precisely to curb abuses by firms whose control over critical services allows them to favor or discriminate against particular customers, speakers, or competitors.
“Google is the modern equivalent of the railroad or telegraph monopolist,” said Tara Pincock, Open Markets Institute policy counsel. “The tech giant’s dominance over online search grants it sweeping control over who can be discovered online, who can reach customers, and who can participate in the digital economy. With that power comes the responsibility not to discriminate.”
Google Holds Itself Out to Serve the Public: The brief explains that under settled Ohio law, a company qualifies as a common carrier if it makes its services “available to the public generally and indiscriminately.” Google Search plainly meets that standard: anyone can use Google without an account, and any website can be crawled, indexed, and displayed without a contract or payment.
Google’s discretion in ranking and indexing webpages does not transform it into a private carrier—just as a bus company choosing its route or an innkeeper setting reasonable rules has never exempted them from common carriage obligations. Courts have consistently held that companies open to the public remain subject to nondiscrimination rules even when they exercise judgment in how to provide their services.
Common Carrier Doctrine Is Flexible and Applicable to New Technologies: The brief emphasizes that common carriage is not a relic of the past; it is a dynamic doctrine explicitly designed to adapt as new technologies emerge. Courts extended it from stagecoaches to railroads, from telegraphs to telephones, and from cable systems to broadband. Today, as digital platforms become essential infrastructure for civic participation and economic life, states have the same authority to ensure these systems remain open, fair, and nondiscriminatory.
“It would be a bold statement indeed to say that government possessed greater power to regulate the public interest a century ago than it possesses today,” the brief notes, quoting German Alliance Insurance Co. v. Lewis (1914).
Unchecked Search Discrimination Harms Users, Businesses, Publishers, and Democracy: Google’s market share in search far exceeds all competitors combined. When it favors or suppresses websites, speakers, or sellers—often for reasons that are opaque or arbitrary—the consequences ripple across the entire economy. Sellers may be blocked from reaching consumers, creators may lose their audiences, and the public may be denied access to vital information.
Given Google’s long-running monopoly power, Ohio is well within its authority to step in and protect its citizens from discriminatory treatment by imposing nondiscriminatory, equal-access obligations on Google Search.
The brief concludes by urging the Fifth District Court of Appeals of Ohio to reverse the lower court’s ruling that exempted Google from common carrier designation. The trial court’s view—that any exercise of judgment renders a company a “private carrier”—would, if accepted, make it nearly impossible to regulate any business as a common carrier, past or future.
“The doctrine has always allowed companies to apply reasonable rules,” the brief states. “What it has never allowed is discrimination by a firm that holds itself out to the public and controls essential pathways of commerce and communication.”
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