Trump Administration Threats to Investigate Social Media Companies Draws Criticism

There is a growing movement within the Trump administration to take on social media companies over perceived anti-conservative bias, which is triggering criticism from free speech advocates.

(1) The Trump Administration Draws Battle Lines

After Alex Jones and his Infowars websites began getting banned by social media sites for violating their terms of service for promoting hate speech and violence, President Trump took to Twitter to claim that social media sites were discriminating against conservative voices.

Earlier this month, as a House Committee had the social media companies testify on this alleged bias, the Justice Department announced that Attorney General Jeff Sessions was

convening a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.

The political nature of this meeting became apparent when initially only Republican state Attorney Generals were invited, although now Democratic Attorney Generals have been invited to this September 25th meeting.

In addition, the White House is attempting to distance itself from a leaked draft of an Executive Order urging agencies to report and investigate alleged social media bias:

Section 2. Agency Responsibilities. (a) Executive departments and agencies with authorities that could be used to enhance competition among online platforms (agencies) shall, where consistent with other laws, use those authorities to promote competition and ensure that no online platform exercises market power in a way that harms consumers, including through the exercise of bias.

(b) Agencies with authority to investigate anticompetitive conduct shall thoroughly investigate whether any online platform has acted in violation of the antitrust laws, as defined in subsection (a) of the first section of the Clayton Act, 15 U.S.C. § 12, or any other law intended to protect competition.

(c) Should an agency learn of possible or actual anticompetitive conduct by a platform that the agency lacks the authority to investigate and/or prosecute, the matter should be referred to the Antitrust Division of the Department of Justice and the Bureau of Competition of the Federal Trade Commission.

The White House claims the draft “is not the result of an official White House policymaking process.”

Now on the eve of Session’s meeting with the state AGs, a group of internet policy think tanks, advocacy groups and a leading academic have spoken out about the dangers underlying this meeting in a letter to Attorney General Sessions.

(2) The Premise of the Meeting in False and Not a Proper Area for Regulation

The letter both disputes the claim on social media political bias and the legitimacy of the government investigation of it.

The President and congressional Republicans have offered a series of anecdotes of conservatives suffering because of (mainly algorithmic, automated) content moderation practices — but no evidence of systemic political bias. Academic research has found no political bias in news recommendation engines — the principal focus of the President’s complaint. Regardless, even if evidence of such editorial bias existed, the First Amendment protects the exercise of  editorial discretion, however “biased.”

The letter also expressed concerns that the potential investigations were being announced as a means of impermissibly strong-arming and intimidating social media platforms.

The letter also noted that it was ironic that after successfully defeating the “Fairness Doctrine” in broadcast media, conservatives were now, in essence, seeking to revive it for this new platform.

(2) Antitrust Investigations Must Be Based on Economic Harms, Not Content

The letter also makes clear this is not an antitrust issue.

While no clear antitrust harms have been alleged yet in this area, it is true that media companies are not immune from antitrust suit. However, “the First Amendment does not allow antitrust claims to be predicated solely on protected speech.” Thus, antitrust suits against web platforms — even against “virtual monopolies” — must be grounded in economic harms to competition, not the exercise of editorial discretion.

The letter was signed by TechFreedom; Lincoln Network; The Copia Institute;
Iain Murray, VP for Strategy and Senior Fellow, Competitive Enterprise Institute (CEI); Engine Advocacy; Information Technology and Innovation Foundation (ITIF); Jason Pye, Vice President of Legislative Affairs, FreedomWorks; Lisa B. Nelson, the CEO of the American Legislative Exchange Council; Prof. Eric Goldman, Santa Clara University School of Law.