Aside from those on Big Tech’s payroll, and it seems an increasingly narrow sliver of libertarianism, most on the right now accept that Big Tech censorship and manipulation poses an existential threat to free speech in the United States.
With more bans, arbitrary suspensions, and Republicans out of power, there is an understandable impulse to “do something” by joining left-wing opposition to Big Tech to support legislation that addresses these companies’ market power — primarily around section 230 of the Communications Decency Act and antitrust — without directly addressing censorship. As an attorney fighting Big Tech in both free speech and antitrust cases, I believe this course is misguided.
Practically, there are three antitrust bills that have a chance of passing: the Open App Markets Act, the Journalism Competition and Preservation Act (JCPA), and the American Choice and Innovation Online Act (ACIOA). None of these bills directly address censorship, but some populist Republicans have supported all three on the grounds that they will prevent Silicon Valley stifling open discussion. However, all three bills have explicit loopholes which give Big Tech more power to silence and discriminate against conservatives and other disfavored speakers.
At the center of all these bills and the left’s tech-lash is the chair of the Antitrust Subcommittee, Sen. Amy Klobuchar. And what’s her biggest gripe against Big Tech? That Silicon Valley doesn’t censor enough. Don’t take my word for it.
Klobuchar detailed the motivations for her campaign against Big Tech in her book “Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age.” In the book, she cites “election disinformation leading to the insurrection at the capitol, and former president Donald Trump’s racist and mean tweets” as part of her motivation to strengthen antitrust against Big Tech.
Understanding this is key to understanding the left’s misleading techlash agenda. (RELATED: SCHOEN: Congress Can Save The Press From Big Tech’s Iron Grip. Here’s How)
Revolver News has already written in depth about the problem with the ACIOA, whose primary sponsor is Klobuchar, and the Open App Markets Act. Both bills purport to prevent Big Tech platforms from discriminating against competitors.
The Open App Markets Act addresses Google’s Android Platform and the Apple Store, while ACIOA would prevent large tech platforms from “self-preferencing” their own services (e.g., preventing Amazon from promoting Amazon Basic products over competitors).
While there are some merits to both proposals, both bills contain a vague loophole to allow censorship for “security” and “safety” — which are the specific terms of service that tech companies use to deplatform “misinformation” and “hate speech.” As such, it is unlikely these bills would, as many conservatives believe, stop Apple or Google from banning apps like Parler from those companies’ app stores.
The Center for American Progress, an establishment Democratic think tank, endorsed the legislation precisely because it would facilitate censorship, noting YouTube, for example, could defend “the removal of conspiracy theorist Alex Jones from his YouTube channel” under the bill by invoking the company’s “ability to take action to protect the safety or security of its users” and citing “Jones’ long history attacking victims of a school shooting and spreading false cures for COVID-19, among other outrages.” Regarding COVID-19, the “safety or security” exception could be used to justify silencing critics of government policies like lockdowns and school closures in a future public health crisis.
The Klobuchar-sponsored, Journalism Competition and Preservation Act is even worse. While the bill purports to increase antitrust enforcement, it allows Big Media outlets to collude on setting their ad prices. The argument is that Big Tech serving as an ad broker has prevented media companies from getting fair rates for advertising.
Whatever the merits of this argument, exactly why should the right care if the New York Times, Buzzfeed, or CNN are losing online advertising revenue? When it comes to Big Media v. Big Tech, Henry Kissinger’s quip, “it’s a pity they both can’t lose,” is apt.
Numerous conservative outlets, such as Zero Hedge and Dan Bongino, are completely banned by Google’s ad platforms. Sites like Breitbart and Daily Caller, which aren’t outright banned, face left-wing-driven ad boycotts which lead to lower ad revenue. After numerous conservatives pointed out this hypocrisy, Klobuchar amended the bill to say that no provider could be excluded based on “the views expressed by its content.”
Klobuchar is a strange ally in the fight against Big Tech censorship. She is also the primary sponsor of three other bills which would explicitly promote censorship. The Health Misinformation Act removes section 230 immunity for any platform that promotes “health-related misinformation” during a declared public health emergency.
Even worse, the law delegates to unelected bureaucrats, namely the secretary of Health and Human Services, “in consultation with the heads of other relevant Federal agencies and outside experts,” the power to define “health misinformation.”
She sponsored the Honest Ads Act with John McCain, amplifying concerns over alleged Russian collusion with the Trump campaign, in order “to protect our democracy.” Finally, she sponsored the NUDGE Act, which she describes as designed to fight “algorithms pushing dangerous content that hooks users and spreads misinformation.”
This, of course, does not mean we should sit back and do nothing about Big Tech. Conservatives should advocate vigorously enforcing existing antitrust laws, particularly at the state level by Republican attorneys general, fight for state laws like Texas’s HB 20 which apply common carriage principles on Big Tech, and we should sue Big Tech companies by using longstanding contract law principles to hold them to their own policies and promises of free speech.
However, we should not trust Klobuchar’s remedies against Big Tech.
James R. Lawrence, III (Twitter: @jlawrencenc) is a Partner at Envisage Law, where he represents clients against Big Tech companies. He served as outgoing FDA Chief Counsel under President Trump.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
Editor’s note: This article has been updated.
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