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.