The Worst Reason To Brush Off Content Moderation Concerns In Antitrust Bills: Eh, The Supreme Court May Destroy 230 Anyway, So It Shouldn’t Much Matter…

from the wait,-really? dept

We’ve been highlighting the one big problem with Amy Klobuchar’s AICOA antitrust bill being that it has a trojan horse to enable lawsuit challenges over content moderation — and that this is the main reason why Republicans are supporting it. Still, with a big push to get the bills over the finish line, Adam Conner and Eric Simpson at the Center for American Progress did a big analysis of AICOA and the related Open App Markets bill that has similar content moderation concerns, and decided to recommend both bills, brushing aside the concerns.

Most of the analysis is quite good. And I agree with them that some of the other concerns raised about these bills seems exaggerated at best. Also, I appreciate that, for the most part, they take criticism of the bill seriously and try to respond to it, rather than ignore it. However, I take issue with them brushing off the content moderation concerns. Most incredibly, they argue that because Florida and Texas are already trying to legislate content moderation bans, and the Supreme Court will eventually weigh in (more completely than it already has), that state AGs won’t bother to use AICOA’s provisions when they can use the even worse provisions they’re hoping the Supreme Court will approve:

Finally, recent laws passed by Texas and Florida limit content moderation on social media platforms. These laws are in various stages of litigation before two different circuit courts, and it is increasingly possible that the U.S. Supreme Court will address the issue of online content moderation in the near future. Should either of these laws be allowed to stand by the Supreme Court, it is certainly difficult to imagine a state attorney general choosing to use a provision in these antitrust laws for a purpose they were not intended for, instead of working with the state legislature for more direct changes and challenges to content moderation on social media platforms.

And, um, sure? Yes, if even worse bills are allowed to become law, then I guess AICOA is the least of our concerns around content moderation, but that hardly seems like a reason to endorse this bill.

Earlier in the paper, they also brush off concerns about the content moderation issue in AICOA because it doesn’t have a private right of action for individuals or companies to sue directly, but would have to convince a state Attorney General or the DOJ or the FTC to take up a case. They discuss this in a hypothetical involving Alex Jones trying to sue YouTube over being moderated (this is a strange choice, as there are much more on point concerns, such as the moderation of Parler…):

YouTube currently enjoys First Amendment protections to moderate its private platform as it sees fit, including by removing Jones. Should Jones wish to get around these protections by arguing terms-of-service enforcement discrimination that resulted in material harm to competition under the bill, he would first have to persuade the DOJ, FTC, or a state attorney general to take up his case, as there is no private right to action in American Innovation, and Open Apps Markets does not apply here. The government would then need to prove in federal court that YouTube did not merely apply its terms of service in banning Jones, but that it applied the terms of service in a discriminatory fashion among “similarly situated business users.” In other words, the complainant must prove that Jones was treated differently than other YouTube users similarly violating the terms. Further, it would need to show that discriminatory application of the terms of service resulted in material harm to competition in the marketplace. It is highly unlikely that such an effect could be shown, since YouTube earned revenue from Jones’ videos, and operations of competing platforms were not harmed by the ban.

I mean, all of that puts a ton of extremely undeserved faith in a variety of government officials and judges to not take on a politically motivated cause. And there is little reason at all to believe that would be the case.

As we’ve pointed out for many, many years now, State AGs have become extraordinarily political, and in some cases positively eager to abuse their power to take on a sketchy case for political grandstanding reasons. I mean, Texas’ AG Ken Paxton seems to relish abusing power to bring politically motivated cases against his foes. It seems like that should at least be called out?

And what happens if Trump or DeSantis wins in 2024. Does anyone really think that a DOJ or FTC, led by people handpicked by either of them, would choose not to use these powers against companies for moderating content in a manner they don’t like? I mean… that’s just naïve. During the Trump administration he made it quite clear that he believed the DOJ was his own personal enforcers and should be used against his political enemies. And even as Trump’s former Attorney General Bill Barr tries to rehabilitate his tainted image, remember that he led multiple politically motivated antitrust inquiries against Trump’s enemies.

Meanwhile, DeSantis has similarly made it clear that he has no qualms about retaliating against political enemies. And, by all indication, Trump and DeSantis both see the failure of Barr’s politically motivated investigations as a problem to be solved with even more toadying and aggressive law enforcement agents.

As for the claim by CAP that the courts will somehow throw this out, that’s increasingly unlikely as well. Remember, the 5th Circuit seemed willing to make a purely political decision in reinstating Texas’ content moderation law. And some members of the Supreme Court seem willing to go along with that. I guess that’s why CAP’s argument is basically “well, if the courts are going to be bad about this, they’ll be even worse,” but again, that hardly seems like a good reason to support this bill.

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Comments on “The Worst Reason To Brush Off Content Moderation Concerns In Antitrust Bills: Eh, The Supreme Court May Destroy 230 Anyway, So It Shouldn’t Much Matter…”

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That One Guy (profile) says:

Wishful thinking as legal analysis

‘Sure it might be used to bludgeon you over the head but if some other laws are upheld and/or repealed there will be other sticks available to those looking to swing them’ strikes me as a really bad excuse to dismiss the concerns people have with the bill.

To be consistent you might as well dismiss any good parts of the bill by saying that some ‘better’ law might come out in the future so there’s no point in supporting this one now.

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That One Guy (profile) says:

Re: Re: Re:6

And now there’s two fictional version of me floating around in your head apparently, the fictional version of my post that was ‘angry’ and one you have decided simply must have been me(pro-tip: Since I got my account I don’t post signed out). You really should see someone about that, jumping at shadows can’t be good for you mental health.

Toom1275 (profile) says:

Re: Re: Re:8

and only its creator can know of its existence before anyone else does

Anyone literate, unlike you, would understand that That One Guy only knows about the existence of your fictional version of himself that you are the sole author of because you yourself told everyone you had made it when you referred to the nonexistent “angry” That One Guy you hallucinated instead of any of That One Guy’s real-world posts.

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bhull242 (profile) says:

Re: Re: Re:6

Given the fact that the headline of the article can indeed be read as sarcastic, […]

To the extent that, without context, anything can be read as sarcastic, sure. Beyond that, though, no, it really cannot. Nothing about the title or the article suggests that the title was intended to be sarcastic.

Also, there is also the part about anger being present in TOG’s comment which could be a lie.

bhull242 (profile) says:

Re: Re: Re:4

Fine, since you need it pointing out that the sky is blue: […]

I’m sorry I have autism, which means that discerning tone and sarcasm is more difficult for me than it is for most people. I can do it, but it isn’t as easy for me. I am also sorry that tone is a lot more difficult to discern in text than it is in verbal speech.

That said, even with you pointing it out, I still don’t see it.

[…] the sarcasm’s in the article title, […]

Right, so, first off, the title is:

The Worst Reason To Brush Off Content Moderation Concerns In Antitrust Bills: Eh, The Supreme Court May Destroy 230 Anyway, So It Shouldn’t Much Matter…

I don’t see that as sarcasm; I’m pretty sure that the author genuinely believes that that is, in fact, a terrible reason to “brush off content moderation concerns in antitrust bills. Nor was TOG referencing the title per se.

If you meant only the part of the title after the colon, that’s still not sarcasm since that is intended to reference an argument some people are actually making, and the context makes it explicitly clear that this is not an argument the author of the article endorses given what came before.

I could see the title being hyperbolic (namely regarding the word “worst” or the characterization of the argument being referenced), but not sarcastic.

Additionally, TOG was clearly referring to the people who actually use this argument and not the author of the article. I have no idea why you think otherwise. He was clearly agreeing with the author. As such, to the extent the title is sarcastic (which it isn’t, but for the sake of argument…), it doesn’t appear that TOG missed it.

[…] the anger is in TOG’s response to the first AC.

Again, nothing about that response seems angry. Here it is:

… Did you have a point or do you just like that word [whoosh]?

The only emotions I can discern are confusion and/or curiosity, maybe with some mild annoyance if you want to be uncharitable (and even there, it is far from obvious). Nothing about this comment appears to be angry at all, let alone obviously angry. TOG has also explicitly claimed that he was not angry, so given the lack of apparent anger in this comment, I have no reason to disbelieve that.

I honestly don’t have any idea what you’re talking about.

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Anonymous Coward says:

Re: Re: Re:5

I’m sorry I have autism…

I’m sorry you see your brain as a disease. Your parents should have done better than to raise you to see yourself as “broken” and “not good enough”.

TOG has also explicitly claimed that he was not angry…

Exactly. It was a claim, not a statement.

I honestly don’t have any idea what you’re talking about.

What exactly is your relationship with TOG? Seriously, because I want to know the reason for your sycophancy.

That One Guy (profile) says:

Re: Re: Re:5

Nothing about this comment appears to be angry at all, let alone obviously angry. TOG has also explicitly claimed that he was not angry, so given the lack of apparent anger in this comment, I have no reason to disbelieve that.

Amused, bemused, originally confused, I’ve gone through a few emotions with this particular AC but ‘angry’ has yet to be one of them as they’re simply not worth the effort and no amount of attempted gaslighting/lies on their part about how I super-duper was angry(something they know better than me apparently which has me wondering what they hell they’re doing here rather than solving crimes with their psychic powers) has or has any likelihood of changing that.

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Scary Devil Monastery (profile) says:

Re: Re: Re:4

“See where that comment was hidden because a gang of the regulars didn’t like the view that was expressed? Theeere ya go.”

I guess the fundamental difference between “private moderation” and “government censorship” went over your head?

Us flagging your assertions as irrelevant bullshit is our opinion – which, I believe, is still supported by 1A.

Government deciding to set a law prohibiting such opinion, otoh, is a different kettle of fish.

Naughty Autie says:

They discuss this in a hypothetical involving Alex Jones trying to sue YouTube over being moderated (this is a strange choice, as there are much more on point concerns, such as the moderation of Parler…).

What are you talking about, “moderation of Parler,” Mike? Moderation involves removing content that violates community rules, Parler removed content ‘just because’. There’s a massive difference between the two.

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Naughty Autie says:

Re: Re: Re:4

The Republican version of the First Amendment:

Congress shall make no law preventing any establishment of Christianity as the national religion, or prohibiting the free exercise of its worst doctrines thereof; or abridging the freedom of speech of the Republican party, or of the right wing press; or the right of some people violently to assemble, and to call an insurrection against the Government for a redress of perceived grievances.

Of course, they’re likely to be far less open than the above. 😉

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