Google's effort to undermine free speech strengthens case for regulating big tech
Google's effort to undermine free speech strengthens case
for regulating big tech
BY MARK EPSTEIN, OPINION CONTRIBUTOR - 08/31/17 03:21 PM
EDT
As Silicon Valley has cracked down on perceived hate
speech in lock step, many on the right are questioning whether the free market
will protect the marketplace of ideas.
Google’s decision to ban Gab — a social media platform
where the mission is to “put free speech first” — from its Android operating
system’s store raises serious antitrust concerns and strengthens the
justification for public utility or common carrier regulation of online
platforms.
Until recently, the vast majority of conservatives and libertarians
defended social media’s right to enact their own speech policies, even if they
strongly disagreed with them. But just this month, Ann Coulter, Tucker Carlson
and Mark Steyn along with more establishment conservative voices from the
Hoover Institution, Manhattan Institute, and National Review have argued tech
titans are natural monopolies that have an obligation to allow free speech.
Enacting utility regulations is an uphill battle. It
would depart from current antitrust policy, face significant legal challenges,
and likely require legislation. While Teddy Roosevelt believed that one of
"most sinister manifestations" of monopolies was their "tendency
to interfere and dominate in politics," modern antitrust law looks solely
at economic factors such as competition and consumer welfare. As the Federal
Trade Commission noted in the Google-DoubleClick merger, while non-economic
considerations “may present important policy questions for the Nation, the sole
purpose of federal antitrust review of mergers and acquisitions is to identify
and remedy transactions that harm competition.”
However, this analysis can apply to the market for free
speech. Acting FTC Chair Maureen Ohlhausen has explained that antitrust law can
“promote nonpecuniary values like openness and free speech” because “consumers
care about a host of qualities for Internet access, not just price, and
antitrust protects market forces, which respond to consumer demand under
competition.”
Upon its launch, Gab’s CEO Andrew Torba said it was created
to fill the “very clear market need" for "millions around the world
do not feel comfortable speaking freely" on other social networks. Google
has its own social media platform, Google +, which competes against Gab.
Eighty-two percent of smartphones run Google’s Android
operating system. Antitrust enforcers in the E.U. and Russia have imposed large
penalties on Google for preloading Android with Google apps such as Chrome and
YouTube, which disadvantages competitors like Bing and Mozilla. Google responded
that “consumers can easily choose which apps they want" because
"downloading and replacing an app or widget is simple — you can do it in
thirty seconds." This defense no longer applies to consumers who want a
free speech social media app.
Google would likely argue it did not ban Gab to stifle
competition. It justified the decision because "in order to be on the Play
Store, social networking apps need to demonstrate a sufficient level of
moderation, including for content that encourages violence and advocates hate
against groups of people." But courts have held, "a restraint on
competition cannot be justified solely on the basis of social welfare
concerns," and must have a "pro-competitive justification,"
which Google has not offered.
The company did not accuse Gab of advocating hate, but of
not banning those who do. The main argument for speech restrictions on social
media is that "trolls" harm the user experience. As Mark Zuckerberg
wrote, “we have different opinions on what we want to see and what is
objectionable.” Gab was explicitly created for those who do not mind exposure
to offensive speech. Google has effectively shut off this market to 82 percent
of smartphone users without helping the other consumers who do not wish to see
such speech.
Even if Google would prevail in an antitrust case,
banning Gab strengthens the policy argument for utility or common carrier
regulation of online platforms. Alphabet and Apple—the two largest corporations
in the world by market capitalization—collectively control 99.6 percent of the
smartphone operating system market through Android and iOs. Both platforms have
banned Gab.
Supporters of allowing private social media censorship
argue that with low entry capital and regulatory entry costs, it should be easy
to start a “free speech” social media website. As TechCrunch’s John Constantine
argued, “You want total freedom of speech? start your own damn blog or forum.”
Telling people to “start your own damn smartphone operating system” is far less
compelling.
I have repeatedly expressed concerns about depending on
antitrust or public utility to protect online speech. However, if Silicon
Valley giants use their monopoly power to suppress pro-free speech competitors,
these sorts of regulations may become inevitable.
Mark Epstein is an attorney and legal policy advisor for
The American Cause, a nonprofit conservative think tank in Washington, D.C.
The views expressed by contributors are their own and are
not the views of The Hill.
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