Big Tech and the Conservative Paradox

Last month may well be remembered as Big Tech’s Antitrust April.

On Monday, April 14, Mark Zuckerberg, Meta/Facebook’s founder, Chairman, and CEO, entered a federal courtroom in Washington to face claims that his platforms have violated antitrust law by using their monopoly power to buy up Instagram and WhatsApp. Three days later, in an antitrust suit against another giant tech platform, a federal judge in Virginia found that “Google has violated Section 2 of the Sherman Act by willfully acquiring and maintaining monopoly power” in its advertising services.

On April 21, the remedy phase began in a separate suit against Google, stemming from a determination last year that Google had illegally used monopoly power to cause anticompetitive harm. On trial day, newly installed Assistant Attorney General for Antitrust Gail Slater reminded Americans in her public statement of the “threat Google presents to our freedom of speech, to our freedom of thought, to free American digital markets.”

The Antitrust Paradox Facing Conservatives

Threats to online speech and thought on the one hand, and the dominant market power of Silicon Valley monopolies on the other, present a kind of conservative paradox, in a seeming (though illusory) contradiction. While conservatives hew to a free market and commercial deregulation, they also embrace constitutionalism and the first principles that undergird our Republic’s founding, with citizen free speech and an informed electorate among them.

Conservatives can forge a unified approach from this paradox, providing robust free speech protection for citizens as both speakers and recipients of information while retaining free market respect for digital platforms and social media companies.

Assistant Attorney General Slater skillfully touched on that in her April 25 speech to Notre Dame Law School. Articulating a doctrine of “America First Antitrust,” she laid out its “first principles.” Antitrust enforcement, she said, is an essential tool because “[i]ll-gotten monopolies inherently restrain human liberty,” and they “are key not only to the ordinary citizen’s free expression, but also to how elections are won or lost, and how our news is disseminated or not.”

This monolithic power to manipulate online information and to impact elections has already played out in American politics. Government complicity was obvious in the Biden Administration pressuring social media platforms to censor information and opinions disfavored by officials, with platforms often complying even while ignoring their own rules. But technology titans intentionally interfered on their own initiative with the free flow of political information during elections. This combination of private and government manipulation of information risks creating the worst of all possible scenarios for a constitutional republic: an uninformed (or deliberately misinformed) electorate.

Monopoly Concerns in the Founding Era

Assistant A.G. Slater’s address also took us back to the Boston Tea Party, calling it a protest “against the monopoly granted to the British East India Company” by King George III.

Anti-monopoly sentiment continued after that. During the Bill of Rights debates, proposals were floated to prevent government-created monopolies. One amendment from the Massachusetts and New Hampshire Conventions would have required “That Congress erect no company of merchants with exclusive advantages of Commerce.” It was incorporated in the Tucker and Gerry Amendments of August 22, 1789, with its substance included in the House Joint and Concurrent Resolutions. The New York Convention’s proposed amendment provided “That the Congress shall not grant monopolies or erect any company with exclusive advantages of commerce,” and then appeared in Roger Sherman’s Proposed Committee Report in July of that year.

While none of those proposals were ultimately adopted, opposition to monopoly power and its abuses lingered in the public mind. Assistant A.G. Slater’s address noted its final apotheosis when Congress passed the Sherman Act in 1890.

Fast-forwarding a hundred years, we see conservative/libertarian voices recognizing the toxic synergy between abusive monopolies and the government support systems that create them. Milton Friedman noted that dynamic in his book, Free to Choose: The Classic Inquiry Into the Relationship Between Freedom and Economics, concluding that a “monopoly can seldom be established within a country without overt and covert and government assistance.” Whether Friedman was a classic conservative is up for debate, but his proposition is valid.

Section 230, Regulation, and Antitrust Doctrine

When Congress passed Section 230 as part of the Communications Decency Act in 1996, it gifted to American information tech platforms unprecedented protection, shielding them from most civil suit liabilities. It is that same quasi-subsidy assistance that lies at the heart of both the creation of, and the remedy for, Big Tech’s biased monopoly control over America’s information and opinions.

That act of Congress unintentionally created a small club of tech platforms that dominate their digital information markets: Alphabet (Google-YouTube), Meta (Facebook, Instagram, et. al), Amazon, Microsoft, and Apple.

Not only did Section 230 “create the internet” as pro-tech advocates consistently argue, but in fact it literally “created Silicon Valley” as one legal commentator concluded, even while that statute’s ambiguities and conflicting interpretations remain.

The Supreme Court has yet to enter the Section 230 thicket head-on, as Gonzalez v. Google shows. State regulatory approaches to Big Tech are similarly uncertain. In Moody v. NetChoice and its companion case NetChoice v. Paxton, the Court ruled only on proper facial constitutionality analysis, as the concurrences made clear.

Yet a seminal point arose in Justice Kagan’s NetChoice opinion noting the critical need for “a well-functioning sphere of expression, in which citizens have access to information from many sources . . . And the government can take varied measures, like enforcing competition laws, to protect that access.”

Antitrust litigation involves “enforcing competition laws,” to be sure, but it also possesses a dynamic relationship with Americans’ need for a “well-functioning sphere of expression” online, an interest acknowledged by the Court. In Associated Press v. United States, the Supreme Court referenced that dynamic:

The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public . . .

So can existing principles of antitrust enforcement provide a tool to address Big Tech threats to citizen speech, but without distorting antitrust doctrine in the process?

Yes, if antitrust litigation is used as a wrench, rather than a hammer. A judicial finding of illegal monopoly conduct by a Big Tech platform can effectively ratchet down the conduct of the biggest companies playing fast and loose with user free speech.  

But Congress has to apply that wrench. 

Tightening Down on Section 230 Reforms

Section 230 needs amending. Congress should amend the law to provide that any monopoly platform that trades significantly in third party user content and has violated antitrust law  forfeits its Section 230 protections.

The logic is clear. It comports with Congress’s findings when it adopted Section 230. After all, Congress anticipated that internet users would be provided with a “forum for a true diversity of political discourse.” Those expectations have been betrayed the most  by companies benefiting the most from Section 230’s protections.

Antitrust enforcement by the Department of Justice would provide an effective tool to identify who the monopoly bad actors are. Congress should ensure that Section 230 no longer empowers them in their anti-free speech hubris.