DOJ Considers Breaking Up Big Tech

I wrote last night about the leaked Google video that confirms, once and for all, that Google is an arm of the Democratic Party. Now, word emerges that the Department of Justice has invited 24 state attorneys general to meet for the purpose of discussing possible antitrust actions against the dominant technology platforms:

On Thursday, the Department of Justice (DOJ) announced that nearly half of the state attorneys general would be invited to a September 25 meeting with U.S. Attorney General Jeff Sessions to discuss whether social media companies are violating anti-trust laws. The DOJ announced the meeting last week, following the congressional testimony of Facebook COO Sheryl Sandberg and Twitter CEO Jack Dorsey.

“Following last week’s statement, the Justice Department received an increased level of interest from state attorneys general in attending the September 25 meeting on tech companies, competition, and free exchange of ideas,” a DOJ spokesman told PJ Media on Thursday afternoon. Due to this increased interest, Sessions has invited more attorneys general.

“Today, the Justice Department formally sent invitations to a bipartisan group of twenty-four state attorneys general that expressed an interest in attending the meeting hosted by Attorney General Jeff Sessions,” the spokesman added.

This could be a major headache for Facebook, Twitter, Google et al., but they have brought it upon themselves by arrogantly using their platforms to advance their own liberal political agendas. There is a basic problem, though: while several tech companies fit the legal definition of monopoly, antitrust law does not neatly apply to the free speech concerns that are swirling around the social media giants.

Historically, antitrust law has assumed that the point of being a monopolist is to reap monopoly profits. The case law is largely about pricing. Here, the problem is not that Facebook, Twitter et al. charge monopoly prices; on the contrary, they are free to users. The issue, rather, is that they are abusing their dominant market positions to advance a political agenda. One can argue that this constitutes a misuse of market power that should be illegal, but such a theory does not fit easily within existing precedent.

That said, this is heartwarming:

Late last month, a former anti-trust lawyer for President Ronald Reagan, Larry Klayman, filed a class-action lawsuit against Apple, Facebook, Google, and Twitter, accusing them of working in concert to suppress conservative speech online. The suit brings up anti-trust claims, free speech claims, and discrimination claims, adding up to $1 billion in damages.

If there is evidence of collusion among the tech giants, Section 1 of the Sherman Act could be invoked (“combination or conspiracy in restraint of trade”). I am not aware of any such evidence, although it would explosive almost beyond imagining if it exists and comes to light. But even if there were evidence of such collusion, a conspiracy to influence politics does not easily fit into antitrust jurisprudence.

Still, such a theory could be fashioned, and it could (and perhaps should) be accepted by the federal courts. Many states also have their own antitrust statutes, and it is open to their courts to determine whether monopolists who abuse their monopoly positions for political purposes can be held liable under those laws.

All of which is to say that not only the Department of Justice, but any state’s attorney general could cause a world of hurt for Twitter, Facebook, Google and any other dominant tech company that is found to have suppressed conservative voices in order to advance a political agenda. Further, if such enforcement actions were to cause share prices to fall, the executives who run Facebook et al. could be exposed to liability to their companies’ shareholders. Many billions of dollars could be at stake in such lawsuits.

So it is heartening to see the DOJ and many state attorneys general taking an interest in protecting free speech online.

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