Using antitrust laws to coerce Facebook and Twitter into setting Republican-friendly content policies violates their First Amendment rights, libertarians and tech groups are warning Attorney General Jeff Sessions.
But that’s not the only danger they see in Sessions’ attempt to gather a meeting of top state prosecutors to discuss whether the Silicon Valley firms are hurting competition and stifling conservative opinions: Such a move would also empower Democrats to employ the same tactics, to opposite ends.
“Suppose that, after years of President Elizabeth Warren tweeting angrily about ‘failing Faux News’ and the ‘War Street Journal,’ her Department of Justice announced their own inquiry, invoking your inquiry as precedent, about the political bias of conservative media against Democrats and progressives,” the libertarian group Tech Freedom wrote in a Friday letter to Sessions.
The missive was also signed by organizations including the Lincoln Network, the Copia Institute, the Competitive Enterprise Institute, and FreedomWorks.
“The constitutional problem would be obvious — and the very same conservative groups clamoring now for government intervention against social media companies would say so loudly,” the organizations said.
A Justice Department spokesman didn’t immediately return a message seeking comment. Sessions announced earlier this month he would seek a meeting with his state-level colleagues amid growing complaints that large Silicon Valley firms, including Google, have amassed monopoly-like power and are giving preference to liberal viewpoints on their platforms.
President Trump, who regularly describes the New York Times as “failing” when it prints unflattering articles about his administration, has repeated the social media criticisms on his Twitter account.
In late August, chafing against news coverage he says is unfair, the president accused search-engine operator Google of suppressing positive stories about him and threatened a government response.
“This is a very serious serious situation — will be addressed,” he wrote on Twitter, the social media platform where he has more than 50 million followers.
Republican lawmakers, meanwhile, have used congressional hearings to accuse executives from Facebook and Twitter of similar anti-conservative behavior.
When pro-Trump social media personalities Diamond and Silk (whose real names are Lynette Hardaway and Rochelle Richardson) claimed that Facebook violated their First Amendment rights by downplaying their videos and posts, however, Democrats pointed out that the Constitution prohibits government — not private companies — from interfering with free speech.
“The president and congressional Republicans have offered a series of anecdotes of conservatives suffering because of mainly algorithmic, automated content moderation practices — but no evidence of systemic political bias,” the tech groups wrote Friday. “Regardless, even if evidence of such editorial bias existed, the First Amendment protects the exercise of editorial discretion, however ‘biased.'”
The tech giants, for their part, have denied favoring either liberal or conservative views in their content decisions. Facebook Chief Executive Officer Mark Zuckerberg and his peer at Twitter, Jack Dorsey, both say their platforms are committed to providing a forum for all voices.
Any attempt by Congress to require that, however, would be ill-advised and, quite likely, unconstitutional, Tech Freedom President Berin Szoka told Congress this spring.
Indeed, as long ago as 1974, the U.S. Supreme Court rejected a Florida law mandating that politicians attacked by a newspaper be given equal space to respond. In a unanimous decision, justices cited concerns including the law’s imposition of extra costs on print publications that might have used the space more profitably.
Just 13 years later, the Federal Communications Commission dismantled a longstanding Fairness Doctrine that had imposed a similar standard on broadcast media, requiring television networks and stations to cover contrasting viewpoints on controversial issues. The policy was doing more to chill free speech than promote it, commissioners determined.
“Ironically, it was conservatives who led the fight to repeal the Fairness Doctrine over four decades — because it hurt conservatives most,” the tech groups told Sessions. “The threat of losing an FCC license discouraged broadcasters from including non-mainstream voices in their coverage and made impossible alternative media offerings with an unabashed conservative ‘bias.'”
If congressional Republicans succeeded in passing a new Fairness Doctrine, not only would the Supreme Court probably overturn it, the measure would inevitably backfire, they added.
“The last thing conservatives should want is a Democratic administration with such arbitrary power, or a Republican administration, for that matter,” the groups wrote. “A Warren administration, say, could use such powers to coerce existing social media sites and search engines to disadvantage conservatives, in the name of neutrality and fairness, and stopping ‘fake news,’ of course, and also to prohibit the ‘Facebook for conservatives’ network recently called for by Donald Trump, Jr.”
