Congressional Republicans released an antitrust plan for Big Tech yesterday with an announcement that made it clear their focus is not on boosting competition or reducing harms to online consumers but on alleged “censorship” of conservatives.
“Big Tech is out to get conservatives” is the first sentence in the “House Judiciary Republican Agenda for Taking on Big Tech.” The “conservative response” to tech-industry problems “will speed up and strengthen antitrust enforcement, hold Big Tech accountable for its censorship, and increase transparency around Big Tech’s decisions,” the opening paragraph continues. The word “competition” never appears in the two-page plan. A separate plan previously released by House GOP Leader Kevin McCarthy (R-Calif.) does mention competition, but McCarthy’s plan also focuses mostly on supposed bias against conservatives.
The House Judiciary Republicans’ plan was released as former President Donald Trump sued Twitter, Facebook, and Google subsidiary YouTube for banning him, claiming that all three companies are guilty of “impermissible censorship” that violates “the First Amendment right to free speech.” Trump’s lawsuit has been widely mocked by legal experts and is almost certain to be defeated because the First Amendment does not require private companies to host speech and because Section 230 of the Communications Decency Act gives online platforms immunity from lawsuits over how they moderate user-submitted content.
Trump’s lawsuits claimed he was banned from social media networks “for exercising his constitutional right of free speech,” while in reality he was banned for incitement that led to his supporters attacking the US Capitol on January 6 in an effort to overturn his election loss. Social media networks also frequently moderated Trump’s baseless claims of election fraud and misinformation about COVID-19 vaccines that has contributed to low vaccination rates among Republicans. While House Republicans claim anticonservative censorship is rampant on social media, conservatives regularly dominate Facebook’s top posts.
Obsession with supposed censorship
The GOP said the “accountability” portion of its plan “subjects Big Tech to legal accountability for its censorship. Platforms like Twitter, Facebook, and YouTube are functionally the public square of the digital age. It is wrong that these platforms control and censor speech with impunity.” Republicans said they propose to “create a statutory basis for Americans to directly challenge Big Tech in court for its censorship and silencing of conservatives.”
Republicans didn’t release more detail on how they intend to achieve that, but they wouldn’t be able to override the First Amendment protections enjoyed by private businesses. Last week, a federal judge blocked enforcement of a Florida state law that would have regulated social media moderation decisions, including by making it illegal for large social media sites like Facebook and Twitter to ban politicians. The judge found that the law violated the social media companies’ First Amendment right to choose what content they host. Similar legislation is being considered in Texas this week.
GOP wants to sideline “Biden bureaucrats” at FTC
The GOP is also trying to sideline FTC Chair Lina Khan, who was just appointed to the agency’s top spot by President Joe Biden. Claiming that the “current system of splitting antitrust enforcement between the Department of Justice and the Federal Trade Commission… empowers radical Biden bureaucrats at the expense of Americans,” the GOP said it wants to “consolidate antitrust enforcement within the Department of Justice so that it is more effective and accountable.”
The GOP also said it wants to change Section 230 because “Big Tech has exploited this protection to make subjective content moderation decisions, often in a manner harmful to conservative voices.” Republicans said their plan “will ensure that any content moderation decisions are done in good faith, based on objectively reasonable criteria, and in accord with particularized rules.”
In the section on transparency, the GOP plan complains that Big Tech’s “decisions about who to censor are made in secret” and promises “massive fines” for companies that don’t follow a proposed requirement that “content moderation decisions and censorship must be listed, with specificity and particularity, on a publicly available website.”
Republicans said their plan would also speed up antitrust lawsuits by “requir[ing] faster treatment of antitrust cases against Big Tech companies at the trial court,” allowing for “a direct appeal to the Supreme Court and requiring the Supreme Court to act quickly when these cases get there,” and “allow[ing] state attorneys general to utilize the same fast-track procedures available to the federal government so that they will be on equal footing in their cases.”
Democrats try to boost competition
By contrast, House Democrats’ antitrust agenda focuses mostly on boosting competition to help small businesses and give consumers more choice. For example, the Democrats’ Ending Platform Monopolies Act could break up tech companies like Amazon to eliminate “the ability of dominant platforms to leverage their control over across multiple business lines to self-preference and disadvantage competitors in ways that undermine free and fair competition.”
Democrats also proposed fines of up to 15 percent of annual revenue for companies that don’t follow proposed prohibitions on conduct that “advantages the covered platform operator’s own products, services, or lines of business over those of another business user; excludes or disadvantages the products, services, or lines of business of another business user relative to the covered platform operator’s own [offerings]; or discriminates among similarly situated business users.”
These and other antitrust bills were approved by the House Judiciary Committee in a two-day session that ended on June 24. While a few Republicans voted for the antitrust bills and a few Democrats opposed them, the votes mostly went along party lines with Democrats supporting them and Republicans in opposition.
Republicans were angry that Democrats’ antitrust agenda focused on boosting competition instead of trying to stamp out alleged anticonservative bias. After the June 24 votes, House Judiciary Committee Republicans issued a statement from Ranking Member Jim Jordan (R-Ohio), saying, “Big Tech is out to get conservatives. But rather than address Republican concerns of bias and censorship on the Internet, Democrats spent the last two days pushing radical antitrust legislation that will systematically change the United States economy as we know it… We look forward to introducing legislation in the coming days that holds Big Tech accountable and actually addresses censorship of conservatives online.”