The Worst Reason To Brush Off Content Moderation Concerns In Antitrust Bills: Eh, The Supreme Court May Destroy 230 Anyway, So It Shouldn’t Much Matter…
We've been highlighting the one big problem with Amy Klobuchar's AICOA antitrust bill being that it has a trojan horse to enable lawsuit challenges over content moderation - and that this is the main reason why Republicans are supporting it. Still, with a big push to get the bills over the finish line, Adam Conner and Eric Simpson at the Center for American Progress did a big analysis of AICOA and the related Open App Markets bill that has similar content moderation concerns, and decided to recommend both bills, brushing aside the concerns.
Most of the analysis is quite good. And I agree with them that some of the other concerns raised about these bills seems exaggerated at best. Also, I appreciate that, for the most part, they take criticism of the bill seriously and try to respond to it, rather than ignore it. However, I take issue with them brushing off the content moderation concerns. Most incredibly, they argue that because Florida and Texas are already trying to legislate content moderation bans, and the Supreme Court will eventually weigh in (more completely than it already has), that state AGs won't bother to use AICOA's provisions when they can use the even worse provisions they're hoping the Supreme Court will approve:
Finally, recent laws passed by Texas and Florida limit content moderation on social media platforms. These laws are in various stages of litigation before two different circuit courts, and it is increasingly possible that the U.S. Supreme Court will address the issue of online content moderation in the near future. Should either of these laws be allowed to stand by the Supreme Court, it is certainly difficult to imagine a state attorney general choosing to use a provision in these antitrust laws for a purpose they were not intended for, instead of working with the state legislature for more direct changes and challenges to content moderation on social media platforms.
And, um, sure? Yes, if even worse bills are allowed to become law, then I guess AICOA is the least of our concerns around content moderation, but that hardly seems like a reason to endorse this bill.
Earlier in the paper, they also brush off concerns about the content moderation issue in AICOA because it doesn't have a private right of action for individuals or companies to sue directly, but would have to convince a state Attorney General or the DOJ or the FTC to take up a case. They discuss this in a hypothetical involving Alex Jones trying to sue YouTube over being moderated (this is a strange choice, as there are much more on point concerns, such as the moderation of Parler...):
YouTube currently enjoys First Amendment protections to moderate its private platform as it sees fit, including by removing Jones. Should Jones wish to get around these protections by arguing terms-of-service enforcement discrimination that resulted in material harm to competition under the bill, he would first have to persuade the DOJ, FTC, or a state attorney general to take up his case, as there is no private right to action in American Innovation, and Open Apps Markets does not apply here. The government would then need to prove in federal court that YouTube did not merely apply its terms of service in banning Jones, but that it applied the terms of service in a discriminatory fashion among similarly situated business users." In other words, the complainant must prove that Jones was treated differently than other YouTube users similarly violating the terms. Further, it would need to show that discriminatory application of the terms of service resulted in material harm to competition in the marketplace. It is highly unlikely that such an effect could be shown, since YouTube earned revenue from Jones' videos, and operations of competing platforms were not harmed by the ban.
I mean, all of that puts a ton of extremely undeserved faith in a variety of government officials and judges to not take on a politically motivated cause. And there is little reason at all to believe that would be the case.
As we've pointed out for many, many years now, State AGs have become extraordinarily political, and in some cases positively eager to abuse their power to take on a sketchy case for political grandstanding reasons. I mean, Texas' AG Ken Paxton seems to relish abusing power to bring politically motivated cases against his foes. It seems like that should at least be called out?
And what happens if Trump or DeSantis wins in 2024. Does anyone really think that a DOJ or FTC, led by people handpicked by either of them, would choose not to use these powers against companies for moderating content in a manner they don't like? I mean... that's just naive. During the Trump administration he made it quite clear that he believed the DOJ was his own personal enforcers and should be used against his political enemies. And even as Trump's former Attorney General Bill Barr tries to rehabilitate his tainted image, remember that he led multiple politically motivated antitrust inquiries against Trump's enemies.
Meanwhile, DeSantis has similarly made it clear that he has no qualms about retaliating against political enemies. And, by all indication, Trump and DeSantis both see the failure of Barr's politically motivated investigations as a problem to be solved with even more toadying and aggressive law enforcement agents.
As for the claim by CAP that the courts will somehow throw this out, that's increasingly unlikely as well. Remember, the 5th Circuit seemed willing to make a purely political decision in reinstating Texas' content moderation law. And some members of the Supreme Court seem willing to go along with that. I guess that's why CAP's argument is basically well, if the courts are going to be bad about this, they'll be even worse," but again, that hardly seems like a good reason to support this bill.