The Constitutionalist Case for Antitrust in the Defense of Free Speech

NOTE: This speech was delivered at the Federalist Society as a part of their 2021 National Lawyers Convention during a segment of the program entitled “Public and Private Power: Preserving Freedom or Preventing Harm.”

Thank you, Judge.

And thank you for allowing me to join today’s discussion with much-more distinguished panelists.

We face a free-speech crisis in America.

Too many Americans are scared to express their personal views, for fear of getting ridiculed, censored, silenced, deplatformed, fired, and even canceled.

And this free-speech crisis is caused by people who are ignorant and arrogant enough to believe that they are “protecting us,” whether it’s their deluded belief that they are “protecting democracy,” protecting us from COVID, or (somehow) protecting us from ourselves.

Having differing views from “our protectors” is “dangerous” to them.

And today’s biggest proponents, enablers, and enforcers of censorship and cancel culture are the trillion-dollar Big Tech monopolists: Google, Amazon, Facebook, and Apple — along with their little brother, Twitter.

Because of their antitrust amnesty and Section 230 immunity, Big Tech monopolists have an unholy alliance with Big Government to censor those with whom they disagree.

When dealing with a monopolist, there’s only one neck for the government to choke.

We just saw smoking-gun evidence of this when the White House press secretary nonchalantly announced that the government is working with Facebook to censor COVID “misinformation.”

As if the COVID science doesn’t evolve as we learn new facts, Tony Fauci is some infallible COVID god, and Jen Psaki runs the ministry of truth.

And Big Tech, ever eager to keep the regime happy, takes its censorship marching orders.

Let’s talk about more examples of Big Tech’s political censorship.

Hillary Clinton still falsely claims that Donald Trump colluded with the Russians to steal the 2016 election.

Yet Big Tech de-platformed Trump, as a sitting President, for claiming that the 2020 election was stolen.

And before the election, Big Tech censored the New York Post — our nation’s oldest continuous newspaper — for publishing negative stories on Joe Biden’s potential foreign corruption, following the discovery of Hunter Biden’s infamous laptop.

How did Big Tech justify this brazen political censorship?

They claimed the emails were fake and this was a Russian disinformation campaign — both of which we now know are clearly false.

Big Tech has been particularly egregious with its COVID censorship.

They’re censoring noted doctors, scientists, and even a sitting United States senator who also happens to be a doctor -- Senator Rand Paul.

How does censoring dissenting doctors and scientists help convince vaccine-hesitant Americans — disproportionately Black and Hispanic Americans — overcome their concerns and get vaccinated?

Censorship is counter-productive. Even deadly. It politicizes the scientific debate. It makes people lose confidence in the science, particularly the science behind vaccines.

COVID vaccines are even more effective than advertised as it relates to hospitalizations and deaths.

But many people don’t believe this.

One of the reasons is that censorship has created mistrust.

We don’t need Tony Fauci, Jen Psaki, and their censors at Facebook to protect us from ourselves.

Get the information out there, good or bad, right or wrong. And let people make their own informed decisions, in consultation with their own medical providers.

How did we get here — and how we do move past this?

During the internet’s infancy, Congress passed Section 230 of the Communications Decency Act of 1996. The purpose of Section 230 was to promote free speech online, by shielding the internet providers from defamation lawsuits based upon what their users post.

Section 230 made a lot of sense at the time. We wanted to promote the internet economy and free speech generally, and this required protecting the internet infants from defamation lawsuits — oftentimes driven by the big publishers — that would’ve wiped these internet startups off the map.

Fast forward 25 years, and the public square is now largely online.

And there’s been a changing of the online guard.

And they’re increasingly much more powerful and much less concerned about free speech.

Indeed, we’ve replaced the internet infants of 1996 — America Online, CompuServe, and Prodigy — with today’s trillion-dollar Big Tech monopolists — Google, Amazon, Facebook, and Apple.

Through a bad combination of Section 230 immunity since 1996 and antitrust amnesty over the last decade, these Big Tech platforms have amassed too much power and control over our lives.

And they are using Section 230 as a censorship sword, instead of as the intended free-speech shield.

There are no real competitors to Big Tech, especially as it relates to online speech. Google owns YouTube. Facebook owns Instagram and WhatsApp.

If these platforms actually had to compete for users (including for the users’ very valuable online time and data), it’s much less likely the platforms would mistreat the users — including censoring them.

A good example of this is Parler, a startup competitor to Twitter.

Conservatives angry with Twitter’s censorship began to join Parler, in a mass exodus from Twitter. Parler quickly attained a valuation of $1.3 billion.

So instead of trying to woo back these conservative users from a new competitor by changing its censorship policies, Twitter simply killed the competition.

Indeed, Parler got blamed for the January 6th Capitol protests, even though the FBI’s evidence is clear that the protesters largely organized on Facebook.

Then Google and Apple kicked Parler out of the App Store duopoly.

And Amazon kicked Parler off the internet.

Twitter continues its censorship business as usual.

Why did we ignore the Sherman Act — our century-old antitrust law — for over a decade and allow these Big Tech platforms to become trillion-dollar monopolists?

Why did we allow Big Tech to use Section 230 to stifle, instead of promote, free speech?

How do we fix this?

We must do 2 important things:

1.    We must end Big Tech’s antitrust amnesty by updating and *actually enforcing* our century-old antitrust laws. We cannot continue to allow trillion-dollar Big Tech monopolists kill competitors like Parler, control the online public square, and censor our thoughts. We must break-up Big Tech.

The good news is that the House Judiciary Committee recently passed 6 bipartisan bills to rein in Big Tech.

These House bills are championed by Congressman Ken Buck, a conservative all-star from Colorado.

And key conservative senators -- like Senators Chuck Grassley (my former boss), Tom Cotton, and Josh Hawley -- are sponsoring several of these bills in the Senate.

There is a very good chance 2, 3, 4 -- maybe more? -- of these 6 bills will become law over the next year.

We should all support these bipartisan efforts.

2.    We must reform or repeal Big Tech’s Section 230 immunity, so they can no longer censor, silence, de-platform, and even cancel those with whom they disagree. This leads to government-sponsored censorship, and Jen Psaki made it clear that the government is actively working with Facebook to censor Americans.

We need more competition, not less.

We need more free speech, not less.

Thank you for hearing me out, and I look forward to the discussion and questions.