The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is antitrust a remedy for Big Tech's suppression of speech?
A minidebate between Congressman Jim Jordan, Reason's Elizabeth Nolan Brown, and me
My story about Linkedin suppressing one of my posts has acquired a sequel.
Rep. Jim Jordan, the top Republican on the Judiciary Committee, recently accused Microsoft of being "out to get conservatives." In support of that claim, he pointed to LinkedIn's suppression of a short post of mine. In its entirety, it said, "The social media giants that won't let you say the 2020 election was rigged are the people who did their best to rig it: Hunter Biden laptop was genuine and scandalous—Daily Mail."
Rep. Jordan's complaint is part of his campaign against a half-dozen bipartisan Judiciary Committee antitrust bills aimed at Big Tech. He thinks the bills give Microsoft a free ride and fail to address conservatives' objections to Silicon Valley suppression of their speech. He called on the company to "explain Microsoft's basis for censoring user content about Hunter Biden [and] the origins of COVID-19" and to provide an accounting of LinkedIn content suppression decisions and standards in the last two years.
The letter generated a dissent from Reason's Senior Editor, Elizabeth Nolan Brown, who criticized what she called "Jim Jordan's flimsy crusade against Microsoft." She claimed that Rep. Jordan's examples of LinkedIn content suppression were "not all they seem," pointing out that "while one of Stewart Baker's LinkedIn posts about Hunter Biden was removed, multiple others on the same subject were allowed. 'I'm guessing that a lame algorithm is the real culprit'" writes Baker.)" She goes on to argue that even if Microsoft suppresses conservative speech, "it would have nothing to do with antitrust law," would be protected by section 230 and the first amendment, and that it is unreasonable to ask the company to provide information on its content moderation practices.
Ms. Brown is wrong on two counts. She's right that Microsoft "only" suppressed one of my posts. That's because, after the first suppression, I risked my account to make a series of posts that were titrated in an effort to figure out what the hell Microsoft was upset about. The company left up all of my other posts, only taking down the original for a second time. I concluded then and still suspect that LinkedIn was using some lame and overbroad algorithm that took down posts that used the word "rigged" too close to the word "election." But the fact that Microsoft's censorship was arbitrary and stupid is not really an excuse for the heavy-handed bias shown by adopting such an algorithm; it just makes it worse. What's more, as I said then, a lame algorithm is "the most charitable explanation for what Microsoft did. We don't actually know what standards it was applying, because it never told me; it has neither explained nor apologized. As far as I'm concerned, Jim Jordan's objection to the suppression and his questions about it are entirely on point. I'd still like answers.
Which brings us to Ms. Brown's second error. She's right that the government can't regulate Microsoft's speech. But she's wrong in thinking that we have no choice but to accept the market power that lets Microsoft exercise its own first amendment rights by suppressing the speech of thousands or millions of customers who disagree with Microsoft. If we think the marketplace of ideas is being constrained by a handful of dominant tech companies, as indeed it is, antitrust law is a perfectly appropriate tool to reopen that marketplace to more voices. Bigness may not always be badness, but when tolerating bigness means handing control of the national discourse to a few companies, we'd be foolish to ignore antitrust as a possible remedy.
Similarly, Microsoft's section 230 immunity is expressly dependent on whether the company acted in "good faith" and whether it limited its suppression to speech that is "obscene, lewd, lascivious, filthy, excessively violent, harassing," and the like. Examining how far Microsoft's actual practice has deviated from that legislative standard is exactly the kind of inquiry Congress ought to be conducting. The first amendment does not prohibit Congress from reconsidering a subsidy it conferred on social media twenty-five years ago.