New Antitrust Bills Miss the Mark

Without clear language stating that online “safety” does not mean censorship of protected speech, antitrust bills will only empower Big Tech.

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In recent weeks, the Senate Judiciary Committee has advanced two antitrust bills: the American Choice and Innovation Online Act (ACIOA) and the Open App Markets Act (OAMA). Both have received significant Republican support. Given the monopolistic abuses of Big Tech platforms, particularly with respect to the coordinated deplatforming of conservatives, it is not surprising that Republicans would support an antitrust crackdown. Unfortunately, both bills contain troubling loopholes which could give Silicon Valley new legal defenses to justify censorship. 

Neither bill focuses on free speech. OAMA would prevent mobile operating platforms (like Apple’s iOS and Google’s Android and Play Store) from blocking or discriminating against apps. ACIOA is far broader—it would prevent large platforms from discriminating against competing businesses that use their platforms. 

Both conservative supporters and left-wing critics of the bills seem to think that these measures will protect free speech-focused alternative platforms such as Rumble, Parler, and GETTR from being kicked off of app stores—a common problem. After the Judiciary Committee advanced OAMA, for example, Jon Schweppe of the American Principles Project wrote that the bill would prevent Big Tech from “colluding to de-platform free-speech apps such as Parler.” At the same time, Carmen Scurato of the left-wing group Free Press wrote that the ACIOA would make it harder for “companies like Apple, Facebook and Google to protect people targeted with hate and disinformation online.” Free Press has aligned with several other left-leaning tech groups including the Center for Democracy and Technology and the LGBT Technology Partnership to oppose OAMA.

However, both the bills’ supporters and critics are ignoring a massive loophole. The bills would both allow Big Tech platforms to continue banning and discriminating against free-speech apps if justified by “online safety.” The bills do not define “safety,” but we can readily foresee how Big Tech companies will interpret this language. Virtually every Big Tech platform has a “trust and safety” or “safety” section in their Terms of Service, including rules against so-called hate speech, extremism, and misinformation. As applied, these provisions are often just code for suppressing mainstream conservative speech on social issues and Covid-19 restrictions, while allowing extremist left-wing content to proliferate. 

Indeed, Democratic lawmakers who are pushing through these bills have repeatedly tied censorship of conservatives to “safety.” ACIOA’s chief sponsor introduced legislation last year that would have removed legal protections for Big Tech platforms if they do not censor so-called Covid-19 “misinformation,” even when such speech is constitutionally protected. Notably, an amendment to OAMA requiring neutrality towards the political content of the apps was voted down. 

Thus, the OAMA may actually provide additional legal protections, above and beyond those already existing, for major Big Tech platforms to censor alternative free-speech apps. No one who values online free speech should support the bill unless it is amended to state that its safety and security provisions may not be used to justify discriminating against an app based on its users’ First Amendment-protected content. 

The history of Section 230 of the Communications Decency Act is instructive. The 1996 law was meant to protect free speech. But, 25 years later, it has become Big Tech’s strongest legal protection for censorship, giving major tech companies free reign to remove content and deplatform users to suit their political preferences. The original purpose of Section 230 was to shield online platforms from liability for user-generated content. Lawmakers were worried that holding platforms liable for their users’ defamatory posts would lead social networks to always err on the side of removing content when anyone complained, out of fear of being held liable for tort damages. At the same time, Congress did not want to discourage social networks from removing pornography and obscenity. Thus, Congress included an exception to allow platforms immunity when they remove content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Section 230’s express purpose was to “empower parents to restrict their children’s access to objectionable or inappropriate online material,” not to allow political censorship. In fact, the law was expressly premised on the idea that online platforms served as a “forum for a true diversity of political discourse.” Nonetheless, over time, a persistent legal effort by major tech platforms to expand and distort the scope of the law has led to Section 230 being used as a weapon that allows Big Tech to censor with impunity. Courts have used Section 230 to throw out just about every lawsuit filed to date challenging Big Tech’s censorship. Indeed, it is now standard practice for courts to throw out lawsuits—and strike down laws—if they could have any conceivable effect on Big Tech censorship practices. For example, in 2021, anti-social media censorship laws in Florida and Texas were struck down in part based on the law. Section 230 shows how even when a law is well-intended, vaguely-written exceptions can undermine its purpose—indeed, can produce the exact opposite result from what Congress originally intended. 

Imprecise language allowed a bill designed to protect free speech—Section 230—to instead empower Big Tech censors. Without absolutely clear language stating that online “safety” does not mean censorship of First Amendment-protected speech, it is almost inevitable that these new antitrust bills will have the same perverse effect. Laws designed to guard against app store discrimination will instead such discrimination to flourish, giving Big Tech a powerful new weapon with which to quash upstarts.

Noah Peters is a lawyer in Washington, D.C.

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