Republicans Should Tread Carefully as they Consider 'Solutions' to Big Tech

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Congressional Republicans face a dilemma in determining how they want to approach Big Tech. Some perceive the largest tech companies to have too much power over political speech, power that can be used to censor conservatives. Many fear that so-called “woke” opinions are artificially promoted by tech companies whose employees agree with them, while news stories that contradict that narrative are downplayed.

Those fears may be valid, but the legislative “solutions” that some members are flirting with would do little to help. Indeed, they may backfire severely.

The First Amendment, of course, already severely constrains what Congress can do to influence the decisions private businesses like Google and Facebook make about speech on their platforms, even if those decisions act as de facto censorship. Lawmakers have therefore looked at alternative ways to reduce the power and influence of these corporations. Some Republicans have even begun to voice at least mild support for proposals from congressional Democrats that would regulate Big Tech — in particular, proposals to impose “nondiscrimination” requirements on the platforms’ business activities.

Some may believe that the proposals will serve to reduce Big Tech’s power over speech indirectly — for example, by making the companies smaller and less important. Or they may hope that the threat of regulation will force the companies to come to some sort of compromise with conservatives.

Neither appears likely. And for those worried about censorship from the political left, they amount to handing a loaded gun to your sworn enemy.

The “neutrality” that would be mandated by the Democratic proposals has little to do with political speech. Instead, it involves regulating the platforms to be more like utilities, mere conduits for other businesses like Yelp or Epic Games. But this is impractically vague and, in practice, means some government agency will have to oversee what constitutes allowable “discrimination.”

Virtually everything a platform business does today could be construed as discrimination in some way. Google, for example, “discriminates'' against spammers when it de-lists them from search results (a discriminatory choice that most users appreciate). Those spammers no doubt feel this is “unfair,” but it improves the service for everyone else. Other competition, like sustainable price cuts, usually feels “unfair” to competitors who fail to serve consumers with better or cheaper goods and services.

Just as with discrimination, determining what constitutes “fair” and “unfair” competition must be done on a case-by-case basis. Until now, we’ve let courts decide what conduct does and doesn’t violate the Sherman Act’s prescription of free competition among businesses engaged in commerce. What some in Congress now propose is to give the Federal Trade Commission (FTC) the power to determine what kinds of competition and other conduct are and aren’t “unfair.” In granting the FTC such vague and expansive powers, Congress would effectively be allowing bureaucrats to decide how every regulated company must design its products and what lines of business they can and cannot engage in.

Even supporters of this approach concede that the FTC would have enormous power under the proposals, arguing that we should nonetheless trust the commission not to misuse it. But this vast discretionary power should worry conservatives, and anyone else committed to preserving the principles of limited government.

Recent nominees to the FTC have made clear they believe the commission has a role to play in furthering a particular vision of social justice. FTC Chair Lina Khan, for example, has argued that antitrust ought to be used to pursue noneconomic objectives that include “the dispersion of political and economic control.” Fellow Commissioner Rebecca Kelly Slaughter has argued that antitrust should be “antiracist,” with the FTC using its rulemaking powers toward this end; and that “as long as Black-owned businesses and Black consumers are systematically underrepresented and disadvantaged, we know our markets are not fair.”

None of this is to predict with certainty that the FTC will misuse its powers, but prudence counsels that we be mindful of the possibility, given how vast those powers will be. For conservatives who fear what they consider the undue power of Big Tech, it should offer little comfort to see that power concentrated instead in the FTC.

Instead, conservatives may find that other proposals achieve the goals they seek to accomplish. One option, suggested by law professor Richard Epstein, would be to impose “common carrier” requirements for political speech on digital platforms or web-hosting companies. Conservative legal scholar Eugene Volokh has considered such proposals at length and believes they would not violate the First Amendment.

This approach would also come with significant costs, such as making it harder for platforms to remove genuinely problematic content. A more tailored approach that holds platforms to a reasonable standard of care to ensure, for instance, that they effectively police illegal material, like child pornography, and avoid magnifying real harms like defamation, may be where Congress could most productively legislate in this area.

In any case, conservative members should avoid the trap of seeking to solve the “problem” of platform censorship by handing over that power to a single government agency run by people who are unlikely to share their concerns for conservative speech.

Sam Bowman is the director of competition policy at the International Center for Law & Economics, a think tank that promotes the use of law & economics methodologies to inform public policy debates.

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