Don't Hit Tech Firms With Antitrust Cases to Protect Conservatives from 'Bias'
As of late, Republicans insecure over allegations of anti-conservative bias have been all too anxious to regulate Big Tech. Indeed, Senator Hawley (R-MO) continued this trend by asking recently confirmed Attorney General Bill Barr about the DOJ’s role in policing bias. Hesitantly, Barr replied: “I'd have to think long and hard before I said that it was really the stuff of an antitrust matter,” And Barr is right to stop and consider — since antitrust laws are meant to protect competition, not meet political end goals. But even if the DOJ were to go after tech companies for bias, they wouldn’t have much of a case.
According to the Federal Trade Commission, the prime enforcer of antitrust law in the United States, the goal of these laws is simple: to promote consumer welfare and protect them from unfair and deceptive practices. But this doesn’t leave any room for the DOJ to go after tech firms for “bias against conservatives,” which is merely a political end goal supported by evidence that’s flimsy, at best.
From an algorithmic standpoint, there is no evidence of systematic bias from any of the “tech-giants.” We’ve seen plenty of like Trump complaining about Google’s search results being biased in favor of “left-wing media.” But these can be explained by the way that algorithms work. For instance, search engines like Google prioritize content from larger companies — companies that tend to be politically left-leaning. Claims of conservative bias have been litigated many times over but the underlying laws protecting platforms have received less attention. Even if tech platforms are indeed biased, the DOJ would have a tough time prosecuting them for it.
Online tech platforms are protected by Section 230 of the Communications Decency Act. This provision, which is widely regarded as the cornerstone of the modern internet, protects online intermediaries — including search engines, social media platforms, internet service providers, even payment networks — that host and publish speech from users from liability for such speech.
This means that the websites don’t have to monitor the content posted to their website for speech that isn’t protected by the First Amendment. If it weren’t for this law, it would be impossible for huge online platforms to exist. In one minute, 400 hours of video is posted on YouTube and 3.3 million posts are made on Facebook. Even sites like these can’t monitor this amount of content. That’s why Section 230 allows for tons of user-generated content we see online — and is critical for the internet’s proper functioning. And it’s also no coincidence that only the United States, the globe's tech leader, has such a law.
In last year’s Senate Judiciary hearing for Facebook co-founder Mark Zuckerberg, Senator Ted Cruz (R-TX) implied that tech platforms have to choose between free speech protections and their Section 230 protections. Other conservative publications have made this error as well.
Platforms don’t need to be “neutral public forum[s]” to enjoy Section 230 immunity. These protections apply to all providers, regardless of their political slant. As Section 230 clearly states, “No provider or user of an interactive computer service shall be held liable” for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user” considers to be obscene, lewd, etc. That is, any content moderation undertaken in good faith is protected. And as the work of Berin Szoka, President of TechFreedom and Prof. Eric Goldstein has shown, this requirement has never been applied to political speech.
Moreover, tech platforms are private companies, so they’ve got free speech protections. They can favor certain speech and exercise large amounts of discretion in content moderation. Section 230 is simply an added protection which shields platforms from liability for their users’ speech. Therefore, the notion that platforms have to be neutral to enjoy these protections is flawed.
Conservatives have long alleged bias on the part of tech platforms. But the idea of weaponizing antitrust to curb speech online is new and it should be stopped in its tracks. Antitrust should be centered around consumer welfare, and not used as a tool to infringe on the free speech protections of online platforms and users. Such an approach is bad for antitrust and seriously endangers liberty in the tech sphere. If Barr actually stops this reckless idea in its tracks, Americans on both sides of the aisle should be behind him.
Pranjal Drall is a Young Voices contributor specializing in technology and innovation policy. You can find him on Twitter @PranjalDrall.