Beware Antitrust Enforcers Bearing Gifts

Last week I had the privilege of speaking at a Capitol Hill briefing sponsored by Congressman Scott Fitzgerald and the George Washington University Competition and Innovation Lab. The goal of the event was to advise the House Judiciary Committee on using antitrust enforcement as leverage for combatting anti-conservative content moderation policies at social media companies.

In these scenarios, the threat of potentially losing valuable components — like splitting Instagram off from Meta or having Google’s online ad market declared a monopoly — would compel social media companies to stop penalizing right-wing voices. It’s supposed to be a blow against what right-wing activists believe is a “censorship-industrial complex” marked by collusion between the Big Tech firms.

As such, it’s the pointy end of the spear of the tech-populist right, which contains folks like Vice President JD Vance and the “Little Tech” startups clustered around anti-woke Silicon Valley investors like Peter Thiel and Marc Andreessen. They aren’t tech-skeptics per se, but they do want to capture the commanding heights of the tech sector from Democrat-dominated Big Tech firms in order to advance right-wing interests.

As you can see from my opening remarks below, I think this is a very bad idea. As a historian of progressive efforts to police fair speech in broadcasting in the 20th century, I believe this kind of intervention would create opportunities for partisan abuse, government censorship, and a chilling effect on online speech in the 21st century.

Unlike my distinguished fellow panelists, I’m not a lawyer, so I will leave it to them to weigh in on what’s legally permissible or plausible. But I am a historian and I’m here to offer a note of caution from recent history. Past attempts to use government power to ensure fair and balanced speech in the public square have almost always ended in the baldly corrupt abuse of that power.

Today we’re specifically talking about antitrust, but in the end what we’re really discussing is leverage, what’s the leverage by which the government can compel compliance on content moderation bias and the like. That leverage can be antitrust, it can be Section 230 conditioning, but my concerns are agnostic as to the specific regulation. Whatever the tool, we ought to ask ourselves first: what harm could be done by future bad actors who could abuse these precedents and tools, even if we created them with the best of intentions?

I’ll start with a nightmare scenario based on actual proposed legislation. Senator Josh Hawley sits on the Senate’s Judiciary Committee. In 2020, because of his belief that conservative voices were being censored by social media platforms under the guise of content moderation, he sponsored a bill that would have conditioned Section 230 protection on whether platforms could prove to the Federal Trade Commission that their “algorithms and content-removal practices” were “politically neutral.”

The bill was titled the “Ending Support for Internet Censorship Act”; however, if it had been passed, it could easily have itself created a backdoor for government control of speech. That’s because “political neutrality” is an ambiguous concept.

Does neutrality mean that political speech can’t be moderated at all? Would removing the speech of the most reprehensible speakers, like literal Nazis and tankie communists, be a violation of neutrality? When it comes to mainstream politics, would the mere imbalance of speech between Republican and Democratic speakers be taken as ipso facto proof of non-neutrality? What if the majority commissioners decided that tolerating ANY criticism of the current administration was non-neutral?

That fundamental ambiguity would have opened the door to direct speech control and overt weaponization of the law for partisan advantage. Every two years, social media platforms would try to convince the FTC that their speech moderation was fair and balanced, or that they weren’t promoting “fake news,” or the like. Fail, and they could lose Section 230 protection and their business.

There are two reasons why this scenario shouldn’t sound far-fetched. First, look at what’s happening with the Federal Communications Commission right now. The FCC is weaponizing arcane broadcast regulations to punish multi-media companies that platform critics of the administration.

That includes the FCC’s merger-approval authority to pressure CBS into settling a $16 million lawsuit with President Trump in order to get approval for the $8 billion merger of CBS parent company Paramount with Skydance. It also includes using the FCC’s license renewal authority over local television stations to prod ABC/Disney into deplatforming Jimmy Kimmel.

But the second warning I have to offer is historical, the abuse of the FCC’s “Fairness Doctrine.” It was a regulation meant to encourage fair and balanced speech that was weaponized in the 1960s and 1970s to target critics of the Kennedy, Johnson, and Nixon administrations and which had massive chilling effects on political speech.

In 1959, Congress was concerned about the Big Three, near monopoly broadcast networks: ABC, NBC, CBS. They could choose political winners and losers with their coverage. So Congress created the “Equal Time” rule for political candidates. If a TV or radio station aired a Democratic politician, then they needed to offer equal airtime on a similar basis to a Republican politician. It was simple, easy to enforce.

But progressives then went a step further, applying this idea of government-mandated fairness to ALL broadcast speech that touched on politics or current events. This was the Fairness Doctrine, an FCC rule requiring stations that aired political programming to present both major points of view on that issue.

So, to give a concrete example, in 1964 when conservative broadcaster Dan Smoot accused President Johnson of using the Gulf of Tonkin incident to “contrive a war [in Vietnam] if necessary” in order to boost his election chances – which we know, historically, wasn’t far off the mark – well, the Fairness Doctrine compelled stations airing Smoot to carry free broadcasts from the Democratic National Committee defending the administration.

A few years earlier, President John F. Kennedy, and his brother, the Attorney General Robert F. Kennedy, had realized this was a golden opportunity. If you targeted Fairness Doctrine enforcement against only those who criticized you, you could reap partisan advantage. So JFK told his FCC chairman, Bill Henry, “It is important that stations be kept fair,” by which of course he meant “fair to me!”

Henry did as he was told. If a station aired criticism of the administration, they’d get smacked with Fairness Doctrine complaints, which could threaten the renewal of their station license at the FCC’s discretion. Of course, losing your license is the death penalty for a broadcast station!

While Kennedy was assassinated before the next election cycle, Lyndon Johnson’s campaign created an AstroTurfed grassroots campaign to extract over 1,700 free pro-Johnson radio broadcasts, including hundreds in the final week before the 1964 election. As an operative bragged to the Democratic National Committee, even “more important than the free radio time…was the effectiveness of this operation in inhibiting the political activity of these Right Wing broadcasts.”

The censorship had durable effects too. Under constant Fairness Doctrine pressure, the number of stations willing to air conservative programming plummeted by more than half in just three years. Right-wing access to the airwaves would remain suppressed until the repeal of the Fairness Doctrine in 1987. I could go on, but here’s the central point. An attempt to ensure fair and balanced speech on the airwaves evolved into one of the most successful mass censorship campaigns in US history.

To close, I’m reminded of Ronald Reagan’s saying, “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.” Well, when it comes to using government power to ensure fairness in content moderation, these nine words ought to be nearly as terrifying: “I’m an antitrust enforcer, and I’m here to help.”

In closing, I want to add an insight from my fellow panelist, Larry Spiwak, who has noted the dissonance between what antitrust was designed to be — a tool for ensuring consumer welfare by encouraging rigorous economic competition — and what it has become: a means for the government to create bargaining power in order to impose an ideological agenda via the back door.

After all, passing legislation, or even implementing new agency rules, is hard. It is much easier, in practice, to target corporations with legislative jawboning and agency investigations accompanied by the threat of targeted antitrust or regulatory scrutiny. In order to avoid antitrust action, the companies will almost invariably “volunteer” to various policy commitments.

In this regard, the populist right is picking up the tools left to them by the Neo-Brandesians and the progressive left. Same leverage, similar targets, just different goals. And antitrust ends up becoming yet another terrain for the endless game of power politics. But regardless of who is wielding this leverage, it is fundamentally corrupt because it is a way of circumventing the ordinary political process, which is to say, a way of circumventing democracy.