Tackle Internet censorship directly — not through antitrust law

Sewlyn Duke’s recent op-ed for The Hill, “Antitrust should be used to break up partisan tech giants like Facebook, Google,” addresses the serious problem of how a few privately owned internet companies have unprecedented control over the distribution of information.

As Jeffrey Rosen has noted, “lawyers at Google, YouTube, Facebook, and Twit­ter have more power over who can speak and who can be heard than any president, judge, or monarch.”

However, using antitrust laws to address this would be ineffective and likely illegal without new legislation.  

{mosads}While Duke does not propose how to break up the companies, presumably the government would force them divest their subsidiaries such as Facebook’s Instagram and WhatsApp and Google’s Youtube and Android. However, smaller companies are not necessarily more conducive to free speech.

Twitter, which is only the fraction of the size and value of Google or Facebook, is continually embroiled in controversy over its speech policies. All other significant, but still comparably small, social media platforms such as Pinterest, LinkedIn, Tumblr, Four Square, and Reddit have similar speech restrictions as Facebook and Google.

“Antitrust should be used to break up partisan tech giants like Facebook, Google” https://t.co/jKnsrznOdJ pic.twitter.com/33ql2GcUHC

— The Hill (@thehill) December 27, 2016

Breaking up the actual platforms would seriously harm consumers. Google’s algorithm improves with more searches and Facebook’s users value the ability to connect with the other billion people on the network.

Reducing their size eliminates these benefits without increasing free speech. Antitrust regulators recognize this type of economy of scale, known as network effects, when evaluating a company’s market concentration.

Increased social media censorship did not result from the market share of any company or even the political ideology of its executives.

Facebook initially resisted calls to suppress “fake news,” while Twitter once called itself the “free speech wing of the free speech party.” Google refused to remove the controversial “Innocence of Muslims” film from Youtube, even when the White House pressured it to do so.

Over the last year, many in the media along with advocacy groups like the Anti-Defamation League and the Southern Poverty Law Center have increasingly demanded the platforms remove supposed hate speech and, more recently, fake news. Politicians, including Barack Obama and Hillary Clinton, recently criticized Facebook for facilitating fake news.

This bad publicity creates financial pressure for social media platforms to restrict their content. Disney and Salesforce cited reputation concerns when declining to purchase Twitter.

Why Disney won’t buy Twitter.https://t.co/Hiaz8o0YW8

— Recode (@Recode) September 29, 2016

Additionally, many European countries require social media platforms to remove hate speech and are considering legal penalties against fake news. Some social networks set their global terms of service to comply with the more restrictive laws. Breaking up Facebook or Google into smaller companies does not remove these incentives.

Even if it were desirable, the government lacks legal authority to use antitrust law to promote free speech.

Over the years, activists have asked the Federal Trade Commission to consider tangential concerns such as privacy, employee wages, and environmental impact into antitrust regulation.

The Commission explained in its Google/Doubleclick merger statement that while:

“Such issues may present important policy questions for the Nation, the sole purpose of federal antitrust review of mergers and acquisitions is to identify and remedy transactions that harm competition.”

The Federal Communications Commission considers public interest concerns, including viewpoint diversity, in merger review, but its jurisdiction does not extend to internet content providers.

However, Congress can address internet speech directly without stretching antitrust law.

Under Section 230 of the Communications Decency Act, interactive computer services including Facebook and Google receive immunity for their users’ content. The law is explicitly based on the finding that these services “offer a forum for a true diversity of political discourse.”

Who will check Facebook’s ‘fact checkers?’https://t.co/rJ9yLakOFG pic.twitter.com/rDXwqXihii

— thehillexperts (@thehillexperts) December 19, 2016

To ensure this premise remains, Congress could condition large social networks’ immunity on remaining viewpoint neutral in any speech restrictions. The platforms could still prohibit harassment, doxxing, threats, and profanity. However, the law would require them to apply their policies neutrally and prohibit them from enacting viewpoint based rules.

This would prevent Duke’s concerns that online platforms only “reflect only the Democrat Party line,” without violating the companies’ First Amendment right against compelled speech.  

Social media platforms are tangled in a political tug-of-war over what speech they should or should not allow. They should welcome legislative guidance to remove them from an interminable debate. Those concerned about censorship from tech titans should offer them a way out, rather than try to break them up.  

Mark Epstein is an attorney practicing regulatory and antitrust law in Washington, D.C. His writings have appeared in National Review and he served as a political consultant and director of a congressional leadership PAC before attending law school.

The views expressed by contributors are their own and are not the views of The Hill.