It doesn’t take much to find accusations of bias by today’s big tech companies. On one side, tech companies are accused of bias against conservatives for removing too much political speech. At the same time, these companies are accused of favoring conservatives for not taking down enough harmful speech. Even though there is little agreement on the problem, the left and right both seem to agree that using antitrust laws to break up social media companies could fix it. To do so, some academics and politicians even want to re-write the antitrust laws.
This is a very bad idea. As Casey Mattox and I explain in a recent paper published by the Knight First Amendment Institute at Columbia University, these problems are not fixable by current antitrust law. And changing the antitrust law would threaten free speech online, not promote it.
Antitrust can’t fix online speech
If the lack of social media competition created free speech problems online then antitrust would be an appropriate remedy. But these speech problems are not caused by a lack of competition. There are dozens of social media platforms with a range of content moderation policies.
The real problem is that people on the left and the right have diametrically opposed complaints about the major social media platforms. And they all want the biggest and most popular platforms to adopt their preferred approach. No amount of competition can produce a product that satisfies two different, opposed tastes. It is like demanding a single soda that satisfies both diehard Coke and diehard Pepsi fans. But the fight over speech and online platforms is actually worse: it is as if every Coke drinker wanted to force Pepsi drinkers to consume only Coke, and vice versa.
More importantly, because the problem is not a lack of competition, antitrust cannot help. Breaking up companies will not stop harmful speech online. Indeed, evidence suggests the worst, most toxic content often originates in smaller, insular communities and then metastasizes. Breaking up platforms would also make them less useful to users, who benefit from platforms that contain most or all their contacts. And it would put American companies, currently the world leaders, at a disadvantage compared to Chinese platforms like TikTok.
Expanding antitrust would threaten online speech
Some want unconstrained antitrust law so powerful that it can deal with speech concerns. But expanding antitrust law in this way would threaten free speech. An antitrust law powerful enough to police speech online is one that politicians will abuse to censor speech. It has happened before, and we should prevent it from happening again.
The history of antitrust law shows that politicians will use it for personal and political gain when they can. Current antitrust law has a specific focus on harm to the competitive process, ultimately determined by its overall effect on consumer welfare. Even this strict standard can be abused.
In fact, before this narrowed scope for antitrust was in place, antitrust was regularly abused for political gain, from Teddy Roosevelt to John F. Kennedy. And some of the worst presidential abuses of antitrust authority came from Lyndon Johnson and Richard Nixon targeting media companies that threatened their political influence.
President Johnson went after a newspaper, the Houston Chronicle, which had long criticized the Kennedy and Johnson administrations and had supported Nixon’s presidential candidacy in 1960. After Johnson won reelection in 1964, he allegedly contacted the Chronicle’s publisher, who also happened to be the president of a bank with a merger before the Department of Justice. Johnson told the publisher that the bank’s merger approval would only be granted if the Chronicle agreed to support Johnson throughout his presidency. Predictably, the Chronicle turned to support Johnson’s presidency. But once Johnson left office, the paper immediately reverted to supporting Republicans.
President Nixon similarly used the threat of antitrust enforcement to intimidate broadcast network executives at ABC, NBC, and CBS, the three privately-owned national television networks, into providing better coverage of him and his administration. In fact, he preferred the threat of antitrust action over actually bringing a lawsuit, noting, “If the threat of screwing them is going to help us more with their programming than doing it, then keep the threat. . . . Don’t screw them now. [Otherwise] they’ll figure that we’re done.”
Nixon asked the attorney general to not file an antitrust case against the networks but to “hold it for a while, because I’m trying to get something out of the networks.” One of his aides noted that “keeping this case in a pending status gives us one hell of a club . . . something of a sword of Damocles.” Indeed, Nixon’s staff bragged that the threat of antitrust action coerced NBC into airing a wedding special on the president’s daughter and CBS into listening to White House input on its stories.
Antitrust law cannot address the complaints about content moderation because these issues do not result from a lack of competition. Unleashing antitrust law to “solve” speech issues not only will not fix those issues, it will return us to the days of politicians abusing those laws for their own purposes, threatening speech rather than protecting it.
This blog post is the first in a series of posts on the intersection of antitrust and free speech issues on online platforms. It is based on a paper by Neil Chilson and Casey Mattox published as part of the Knight Institute’s symposium on Tech Giants, Monopoly Power, and Public Discourse. You can read the full paper here and the other symposium contributions here.