This week, the CEOs of four of America’s leading tech businesses will be hauled in front of the House Subcommittee on Antitrust and will likely have to weather a slew of accusations on everything from how they treat huge news publishers to how they moderate controversial content. If we’re lucky, we may see some questions about market competition too.
This isn’t the only antitrust arena in which these tech businesses are battling. Attorneys general from almost every state also have launched antitrust investigations into tech companies. Some have focused their complaints on market structure, while others such as Texas Attorney General Ken Paxton have raised concerns about how tech businesses moderate political content on their sites.
The role of antitrust law is to protect consumers from harm. Such harm can occur, for example, if a monopoly acts anti-competitively in ways that leave consumers with no other option, meaning the company can set prices or rules in a way that a competitive market would protect against. Antitrust is an extraordinary remedy. It can rip companies apart and fine them heavily. It can even upend entire markets. For such extreme action, antitrust law requires an extraordinary problem, where markets are working so poorly that only drastic change will help.
And yet, the problems identified by lawmakers and attorneys general are not extraordinary. Attorney General William Barr has argued tech platforms are wrongfully “selective” when it comes to what content they host. Rep. David Cicilline, a Democrat from Rhode Island, has introduced legislation that would exempt some of the largest media companies in the world, such as Rupert Murdoch’s News Corp and Fox, from antitrust laws so they can collectively bargain with tech businesses. The core of his concern is that media companies aren’t getting enough money for their work — despite News Corp earning over $10 billion in revenue in 2019.
Neither Barr nor Cicilline has gone into much detail about how tech businesses are harming their consumers. But that’s to be expected since tech services are some of the most popular brands in the country and face fierce competition. In 2019, Morning Consult found that Amazon and Google are the two most popular brands in the country. Among Generation Z, the youngest adult generation, Instagram is more popular than both Pizza Hut and Skittles, sitting in the top 15, with Amazon, Google, and YouTube all in the top five.
Unless Barr and Cicilline want to claim people have some odd case of Stockholm syndrome, it’s clear that most consumers certainly don’t feel like they’re being harmed. That’s unsurprising given that there is no evidence that they’re being harmed either.
To the extent that politicians are genuinely concerned and aren’t just posturing for political reasons, antitrust still remains the wrong remedy. Indeed, they view antitrust as a sledgehammer to break up big tech and let the rubble fall where it may. That should concern all of us.
What’s more, the attacks from the likes of Barr and Cicilline won’t protect consumers. Their attacks don’t even make it clear what harm consumers are to be protected from. Instead, their proposals will protect only the powerful. As a prominent member of the Trump administration, Barr has a clear incentive to support the president, who was fact-checked by Twitter in May. Cicilline’s efforts will open the door to antitrust abuses by the most powerful legacy media companies, looking to force social media platforms to serve their business model rather than the preferences of consumers.
For antitrust law to be applied properly, it must focus on consumers — not the president and not an outdated form of journalism. To do otherwise is to politicize an extraordinarily powerful (and potentially destructive) tool that can be used to punish political opponents or new competitors to powerful industries. Free speech advocates should note the precedent set if the government can use antitrust to punish the editorial preferences of social media businesses. Those wanting to help the noble journalism industry should not further strengthen dominant companies who stand in the way of new ways of reporting.
Antitrust enforcement is an extraordinary remedy for an extraordinary problem. If the paradigm shifts to enable this extraordinary remedy for a political problem, then it won’t be the powerful who are taken down — it’ll be the consumer. So, why do it?
Robert Winterton is a Young Voices contributor and the director of public affairs for NetChoice.
