STRS: Antitrust Should Not Be Used To Support Unwarranted Government Interference Into Free Speech
Ahead of tomorrow’s gathering of state attorneys general by Jeff Sessions and the Department of Justice, we gathered expert responses to the meeting and the proposed topic of leading tech services and free speech.
The big takeaways:
—When threats to legal free speech are disguised as competition concerns, government efforts can appear overtly political, setting a bad precedent for government interference.
—Antitrust is not the tool for addressing bias or free speech concerns.
—Political attacks on leading tech services ignore tech’s positive perception among voters and consumers.
When threats to legal free speech are disguised as competition concerns, government efforts can appear overtly political, setting a bad precedent for government interference.
Ed Black, Computer and Communications Industry Association: “Mixing ‘competition’ and the ‘exchange of ideas’ raises the idea of government using antitrust law to intimidate companies into doing their bidding — into being favorable to the Trump administration. It’s worrisome.”
USA Today Editorial Board: “We can think of nothing more repulsive to the values of the Constitution, or antithetical to Republican beliefs, than a government inquiry into the role of media in disseminating speech.”
Center For Data Innovation: “It is wildly inappropriate for the federal government to use the threat of law enforcement to prevent private business from exercising their right to determine what types of legal speech they permit on their platforms. Even if platforms were to exhibit political bias, whether as the result of algorithmic bias or deliberate efforts to elevate certain political viewpoints—which, to be clear, is not the case—it is their right to do so. However competitive pressure strongly incentivizes these platforms to provide services that do not exhibit political bias, so the DOJ’s concern is irrelevant.”
Jim Pethokoukis, American Enterprise Institute: “Perhaps when conservatives think through the practical implications of what Trump is suggesting, they will strongly oppose any such efforts at censorship. Just who will decide what sorts of search results are fair and by what method? Does anyone want alphabetical results or one based on simple popularity? Before Google, 1990s web searches on ‘President Clinton’ would produce the ‘President Clinton Joke of the Day’ as the top result rather than the White House. Government regulation would also risk impeding further search innovation, while greater algorithm transparency might help spammers or foreign powers game the system.”
Antitrust is not the tool for addressing bias or free speech concerns.
David Barnes, Americans for Prosperity (AFP): “Antitrust laws exist for the good of American consumers, not to further the political interests of public officials. The Justice Department should not wield its authority to subjectively pick winners and losers in the tech industry or to police free speech. Using threats of antitrust or other enforcement as a political weapon should be cause for concern for every American.”
John Samples, Cato Institute: “Government officials bullying private companies contravenes a culture of free speech. Needless to say, having the Justice Department investigate those companies looks a lot like a threat to the companies’ freedom.”
Wayne Brough, Innovation Defense Foundation: “Antitrust is a tool to promote competition and economic growth. It is not a tool for addressing income inequality, the political influence of large corporations, or a host of other social issues. Nobel economist Friedrich Hayek and others have warned about the dangers of government planning, and the challenges faced by regulators when trying to shape market outcomes. Economic outcomes become political outcomes, with political influence rather than economic efficiency driving results.”
Maureen Ohlhausen, FTC Commissioner: Antitrust enforcement should be grounded in economics. “Today, the case law in the United States generally reflects the contours of a broad, bipartisan consensus that antitrust should be used to protect consumers, and that our enforcement work should be well grounded in modern economic analysis. Despite some discrete criticism at the margins, that consensus remains alive and well, and it continues to govern much of the routine decision-making within the agency.”
Timothy Muris, former FTC Chair, and Jonathan Nuechterlein, former FTC General Counsel: Misuse of antitrust could destroy the very competition it is meant to promote. “If ‘[t]hose who cannot remember the past are condemned to repeat it,’ the story of A&P should be remembered, now more than ever, as a cautionary tale of what can happen when antitrust is divorced from an economically rigorous focus on consumer welfare. The stakes are high; without that focus, antitrust can easily be misused to destroy the very competition it was meant to promote.”
Makan Delrahim, Department of Justice Assistant Attorney General for Antitrust: “Nor is that a small risk or merely a theoretical proposition. For example, when we were preparing our complaint in the AT&T/Time Warner case, we received a curious request from a state antitrust enforcer. They told us they would only join our case if we provided written assurances that no divestiture would go to Fox or to Rupert Murdoch. They actually wanted to direct the divestiture based on the viewpoint of the buyer, not on what benefits competition or consumers, as defined by the consumer welfare standard. We, of course, rejected the request, because it would have been unconstitutional to accede to it.”
TechFreedom et al.: “The First Amendment bars the government from attempting to ‘correct’ the first alleged problem, political bias, including through the antitrust laws, and sharply limits how the antitrust laws can be used against anticompetitive behavior beyond editorial bias. Essentially, antitrust law can prescribe anticompetitive economic conduct but ‘cannot be used to require a speaker to include certain material in its speech product.'”
Political attacks on leading tech services ignore the positive perception of voters and consumers.
Source: The Wall Street Journal
NetChoice: “According to a survey of more than 1,200 U.S. consumers conducted by Zogby Analytics, only 5% said that regulators should focus anti-competitive enforcement on the tech industry. Only 10% think the government should prevent successful online businesses from acquiring other companies. ‘There is a disconnect between American consumers and the anti-tech community,’ said Steve DelBianco, president of NetChoice. ‘Americans prefer to make their own decisions rather than having a heavy-handed government determine what is ‘best’ for them.'”
Pew Research Center: “Americans tend to view the impact of the internet and other digital technologies on their own lives in largely positive ways, Pew Research Center surveys have shown over the years. A survey of U.S. adults conducted in January 2018 finds continuing evidence of this trend, with the vast majority of internet users (88%) saying the internet has, on balance, been a mostly good thing for them personally.”