The Big Tech Suppression: Is There A Potential Legal Remedy?

As all readers undoubtedly know, the breech of the Capitol building by pro-Trump demonstrators on January 6 set off a co-ordinated effort by the Big Tech oligarchs to purge important conservative voices from the internet. First, President Trump himself was banished from Twitter and Facebook. Next came the banishment of notable Trump supporters like Steve Bannon, Michael Flynn and Sidney Powell by some combination of Twitter, Facebook and/or Google. Then, as alternative conservative-friendly social media site Parler understandably began to surge, Google, Apple and Amazon co-ordinated to shut it down by simultaneously removing it from app stores and closing down its servers. Other notable targets of the suppression so far have included the #WalkAway website, and former Congressman Ron Paul. There are likely to be many more — I don’t know any way to get a comprehensive list.

A very reasonable reaction is, this can’t possibly be legal. We’re talking here about hugely powerful private companies co-ordinating to suppress political speech with which they disagree. And it’s not just any political speech, or some fringe movement, but rather some of the most important, if not the most important, voices of the main political opposition coalition, a coalition that just came within a hairsbreadth of winning the national election. And add to that that the suppressed entities just happen to include significant economic competitors of the suppressors. Surely, the law must offer a remedy.

When the key issue is suppression of opposition political speech, the mind instinctively turns to the Constitution’s First Amendment for the likely remedy. But unfortunately, the drafters of the First Amendment did not anticipate a world where the main modes of communication would be controlled by a handful of non-governmental oligopolists. The First Amendment is specifically directed to suppression of speech by the government:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Via the Fourteenth Amendment and Supreme Court precedent, the reach of the First Amendment has also been extended beyond the federal government to speech suppression by states and other governmental entities; but it has not been extended to speech suppression by private companies.

So what other options for legal remedies exist? I know of two main possibilities:

Antitrust.

The existing antitrust laws offer potential for at least some meaningful legal remedies. However, the best prospects for antitrust remedies are for economic compensation for the suppression of commercial activity, of which the prime example here is the co-ordinated crushing of Parler. The prospects for meaningful antitrust remedy for speech suppression alone, without substantial economic impact, are not great. Moreover, it goes without saying that a Biden/Harris Justice Department or FTC will have zero interest in pursuing available antitrust remedies in the current situation, no matter how egregious the conduct.

The words of the main provisions of the Sherman Antitrust Act are not complex. Section 1 prohibits “conspiracies in restraint of trade”:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

Section 2 prohibits monopolies, including “attempts” to monopolize and “conspiracies” to monopolize:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. . . .

But how to use these provisions to obtain meaningful remedies? As one possibility, the federal government has enforcement authority, which is exercised severally by the Justice Department and the Federal Trade Commission. Either of those could seek an injunction against the co-ordinated monopolistic conduct of the Tech giants. However, the process for seeking such relief would entail a large and complex lawsuit with uncertain results. As an example of how such an action can proceed, in 1969 the Justice Department sued to break up the IBM company over its alleged monopolization of the market for mainframe computers. In 1982, after thirteen years of effort and the spending of hundreds of millions of dollars, Justice dropped the IBM lawsuit without obtaining any relief. Many other government efforts to regulate industry conduct using the antitrust laws have similarly ended with modest or ambiguous results after years of effort. And in any event, it is a safe bet that during a Biden/Harris presidency, neither Justice nor the FTC will take antitrust action against Big Tech for the act of suppressing Republican speech.

But there is another alternative under the antitrust laws. Those laws give private parties who are victims of an antitrust conspiracy the ability to bring private lawsuits to vindicate their rights. Moreover, when a private party succeeds in an antitrust lawsuit, it is entitled to have its actual economic damages trebled, and also to recover its attorneys’ fees for the effort.

Although that may sound good, it is unclear what “antitrust”-related damages may be shown by, for example, President Trump or Michael Flynn, for their banishment from Twitter or Facebook. Trump and Flynn were not making money off those tweets to begin with, so what antitrust-related economic loss have they suffered?

Parler is a different story. It has seen its business destroyed, at least temporarily, by co-ordinated monopolistic action, and as a result it may have a treble damages action worth tens or even hundreds of millions of dollars. The problems are, first, that it could take several years to see such a lawsuit through to conclusion, during which time Parler remains dark and unable to fulfill its mission; and, second, even if Parler ends up recovering hundreds of millions of dollars, that amount could be seen as trivial by giants like Apple, Google and Amazon.

Parler can also seek interim injunctive relief against the tech giants that have shut it down. I cannot think of any example of a party that has gotten such relief in a private antitrust lawsuit; but then, I cannot think of any other example of such naked and egregious co-ordinated monopolistic conduct as has just occurred here.

Newly-enacted state civil rights legislation

A second option for legal redress for the Big Tech speech suppression would involve legislation that does not currently exist, but could exist quickly. At PowerLine, Paul Mirengoff puts forth this proposal from a reader whom he identifies as a “distinguished lawyer”:

States can bar large social media platforms and online service providers from discriminating against their state’s residents based on their lawful political statements or affiliations.

Note that the proposal is that this would be state legislation, rather than federal. There is no prospect of legislation like this at the federal level while the Congress is in the control of the Democrats. However, numerous states have legislatures (both houses) and the governorship in control of Republicans, and could pass such legislation promptly. States in question could include some very large ones, like Texas and Florida.

If I might make my own contribution to this proposal, I would suggest that the legislation be specifically characterized as a matter of “civil rights,” and be modeled on the Civil Rights Act of 1964. That Act famously made it illegal for any business offering a “public accommodation” to discriminate on the basis of “race, color, creed” and/or other specified criteria. The “public accommodation” rubric fits the tech social media giants perfectly. They should be prohibited from discriminating on the basis of political viewpoint as a matter of civil rights of the state’s citizens.

I also have a proposal for a form of monetary remedy that would have teeth. My model for this is the federal False Claims Act that is used, for example, to prosecute fraud in billing for Medicare and Medicaid. Under this statute, a company can be subject to a penalty of some $10,000 (or more) for each instance of false billion to Medicare or Medicaid. The $10,000 remedy is inconsequential for one or a few instances of wrongdoing. But when a company that submits thousands of bills engages in systematic conduct that inflates every bill, even if only by pennies each, that company can quickly find itself facing penalties in the billions of dollars. Similarly, at $10,000 per suppressed tweet or post, if Twitter or Facebook systematically suppressed Republican speech, penalties in the billions would mount very quickly.

Readers with the right connections in the legislatures of Texas or Florida might want to pass these suggestions along. I think that statutes like this in a few significant states would see the tech oligarchs backing down very quickly.

UPDATE, January 15: I have seen some suggestions that new state civil rights statutes such as I and others are suggesting couldn’t succeed because of pre-emption by Section 230 of the Communications Decency Act, 47 U.S.C. Section 230. I respectfully don’t think so.

Section 230 protects internet service providers and social media companies — referred to in the statute as “interactive computer services” — mostly by declaring, in subsection (c)(1), that the services are not the “publisher” of content posted to their platforms by third parties. Because of this protection, the services cannot be held liable under state defamation law for such third-party-provided content.

But how about liability for exclusion or banishment of content, as has occurred in the present situation? For that, there is subsection (c)(2), providing as follows:

No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

In my opinion, the systematic exclusion of conservative and Republican speech is not going to qualify under the list of “obscene, lewd, lascivious, filthy, excessively violent, harassing,” or for that matter under the catch-all “otherwise objectionable” part. Moreover, the systematic exclusion of conservative and Republican speech will not be able to meet the required element of “good faith.” Also, to the extent that some of these “interactive computer services” are systematically suppressing conservative and Republican speech to the benefit of a Democrat-controlled government, they run the risk of being deemed state actors and therefore caught by the First Amendment.

There may well be some lower court judges out there who will give a pass to systematic suppression of conservative and Republican speech under Section 230. OK, have at it. Eventually, the case will reach the Supreme Court. By that time, if the civil rights statutes have been drafted as I have suggested, the companies could have run up potential liabilities in the tens or hundreds of billions of dollars. In my experience, even gigantic companies don’t take these kinds of risks.