Antitrust Victory

Good news, reported by Matt Stoller:

The problem is not convincing voters that monopolies are a problem. They already believe that. The problem is convincing them that doing something about these problems is possible. This fatalism also shows up in conversations with policymakers, businesspeople, and workers. There are any number of comments you’d recognize making this point. Congress is corrupt. Big tech is too powerful. Washington is broken. Big money runs everything. The government works for big business. Essentially, the case for concentrated corporate power is that, well, they are simply too entrenched to overcome.

Well yesterday, the anti-monopoly political movement showed that it is possible to use our political system to fight concentrated power. In a shocking action, the House passed a provision to strengthen antitrust laws by a vote of 242-184. Google, Amazon, Apple, the U.S. Chamber of Commerce, and various big tech funded trade associations opposed this bill, and Republican leaders like Jim Jordan and Silicon Valley Democrats Zoe Lofgren fought it bitterly. But they lost. And this is very weird to write, because Google never loses in legislative votes. Ever. But they did yesterday.

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Today’s 5th Circuit Decision–Netchoice v Ken Paxton–Stuns Big Tech

Today's Netchoice opinion out of the 5th Circuit stuns Big Tech, which claimed that it had a First Amendment right to muzzle viewpoints of users. No you don't, said the Court. An excerpt:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

In the meantime, during Congressional testimony, Facebook admits that it has been coordinating with the Whitehouse & CDC to censor FB users' constitutionally protected speech.

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FIRE Files Suit to Address First Amendment Problems with Florida’s “Stop Woke Act”

Once again, FIRE steps up when First Amendment rights are threatened. No matter where someone is on the political spectrum, good intentions are a poor guide to abiding by the First Amendment. This time, the problem is Florida's Stop Woke Act. Excerpt from FIRE's press release:

The First Amendment doesn’t allow Florida law to declare which concepts are too challenging for students and faculty to discuss in a college classroom.

Stop WOKE Act restricts college student and faculty members’ ability to play devil’s advocate, express viewpoints University of South Florida’s First Amendment Forum is the first student group to challenge the law in court TAMPA, Fla., Sept. 6, 2022 — To protect free speech, the government must censor. That’s the absurd argument put forth by Florida lawmakers in the controversial “Stop WOKE Act.”

The law suppresses viewpoints disfavored by Florida lawmakers, threatens tens of millions of dollars in annual funding for universities that don’t crack down on faculty who “promote” an opinion on a government blacklist, and encourages people to report other Americans to government authorities if they “advance” those views — all in the name of “individual freedom.”

Today, a professor and student group from the University of South Florida sued to protect professors’ ability to teach and students’ ability to learn. The lawsuit, filed by the Foundation for Individual Rights and Expression, alleges that the higher education provisions of Florida’s “Individual Freedom” law (dubbed the “Stop WOKE Act” by its proponents), impermissibly chill free expression and promote unconstitutional censorship on the state’s college campuses.

“Without the freedom to engage in vigorous and robust debate about important issues and contentious concepts, a college education is just an exercise in memorizing facts and repeating government-approved viewpoints,” said FIRE attorney Adam Steinbaugh. “That’s not freedom or education.”

The Stop WOKE Act, passed on an exclusively party-line vote and signed by Gov. Ron DeSantis on April 22, prohibits “instruction” on eight specific “concepts” related to “race, color, national origin, or sex”that may run counter to government officials’ notions of “freedom.” For example, the bill unlawfully restricts discussions of advantages or disadvantages of a particular race or sex; whether individuals are unconsciously biased based on race or sex; and whether certain virtues — including “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness” — are racist.

But in restricting which ideas may be considered in a college classroom, Florida’s political leaders ran headlong into the First Amendment.

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When Used Against Trump, Democrats Declare that the Espionage Act is Now a Good Thing

Matt Taibbi:

The Espionage Act is an embarrassment that would make Marcos or Suharto squeamish, but it’s of course not completely impossible there’s an actual espionage offense in Trump’s case somewhere (just as obviously, no evidence of this has been produced). Julius and Ethel Rosenberg were tried under the Act for giving bomb secrets to the Soviets, as Michael Beschloss and Michael Hayden just helpfully reminded us. However, in modern times, the Espionage Act is more associated with talking to the Times, ABC, The Guardian and The Intercept than with actual spying. The defendants are more often conscience-stricken heroes like Hale than villains.

That’s the problem with this law. “Information relating to the national defense” can essentially be anything the government decides, and they can put you in jail a long time for “mishandling” it, which in Assange’s case included merely having it. Trump or no Trump, if you think that’s okay, you’re an asshole. It’s totally un-American, which is why Robert Reich shouldn’t be surprised if Donald Trump acts proud of being investigated for it. This law is more infamous than he is, and everyone but a handful of blue checks can see it.

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Rumble’s Antitrust Suit Against Google

Matt Stoller offers an update on this case. Is it really about Google prioritizing certain viewpoints?

Many Republicans believe that progressives are running Google or other big firms, and these executives are making censorship choices about how to elect more Democrats or foist health choices on the public. They do this, so goes the theory, even if it means making less money. While it's certainly the case that plenty of conservatives get knocked off big tech platforms, so do many others with all sorts of viewpoints (like pro-choice advocates marketing abortion pills on Instagram). More importantly, Google executives are heavily motivated by money, and they would vastly prefer not to have to deal with difficult censorship decisions that amount to which politically powerful customers to piss off.

What is really happening is that these firms are trying to monopolize a market, and then exploit their resulting power to generate cash. Only, in speech or cultural markets, fostering a monopoly means not only that you are able to extract profits. It also means, willingly or no, you become a powerful influence over speech. Large publishing houses choose who gets published and who doesn’t, and that confers significant power. The more dominant the publishing house, the more power. Search engines or social networks are vastly more concentrated, but a similar dynamic exists. Once you control society’s single search engine or social network, editorial choices, whichever direction they lead, help determine what is heard in the public square. So what these executives are doing isn’t trying to censor, but trying to ensure that they have market power in targeted advertising, search advertising or book sales. They simply end up as speech police, because that’s what it means when you build a monopoly that can determine who gets to be heard and who doesn’t.

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