WASHINGTON D.C. —­­ TechFreedom led a bipartisan coalition letter with seven other policy organizations to Attorney General Jeff Sessions to express concern over the Department of Justice’s (DOJ) plans to convene a meeting of state attorneys general to discuss allegations that social media platforms and search engines are “intentionally stifling” free speech and “hurting competition.” The meeting, originally scheduled for September 25, has reportedly been postponed.

The letter states:

We write to express our concern over your plans to convene a meeting of state attorneys general later this month “to discuss a growing concern that [operators of popular social media services and search engines] may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.” The First Amendment bars the government from attempting to “correct” the first alleged problem, political bias, including through the antitrust laws, and sharply limits how the antitrust laws can be used against anticompetitive behavior beyond editorial bias. Essentially, antitrust law can prescribe anticompetitive economic conduct but “cannot be used to require a speaker to include certain material in its speech product.” … For all these reasons, we are skeptical that there are any grounds for legal action that could arise out of your inquiry.

“The DOJ’s inquiry is misdirected,” said Szóka. “If any anticompetitive behavior occurred, it should be investigated by the Federal Trade Commission. The FTC has equal authority to enforce the antitrust laws, plus consumer protection authority and expertise with tech companies the DOJ just doesn’t have. Critically, the FTC is an independent agency, carefully designed to protect the agency from partisan political meddling — which would raise a new class of First Amendment problems. The DOJ, by contrast, is a branch of the Administration, inherently subject to political pressure.”

“It’s ironic that those conservatives now urging government intervention wrap themselves in the mantle of free speech,” concluded Szóka. “The First Amendment is a shield against government, action, not a sword by which government can ensure the ‘fairness’ of media platforms. For nearly eighty years, conservatives made precisely this argument against the FCC’s Fairness Doctrine. Protecting editorial discretion is the cornerstone of free speech and freedom of press. Allowing the government to second-guess the content moderation decisions made by tech platforms will simply discourage them from trying protect their users from objectionable content and maintain civil discourse. Without constant content moderation, the Internet would be unusable.”


We can be reached for comment at media@techfreedom.org. See more of our work on platform regulation and free speech, including:

  • Our blogpost “Reality Check for Trump and Republicans Crying ‘Bias’”!
  • Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Our statement on the passage of SESTA
  • Tech Policy Podcast #226: The Fairness Doctrine: Next Generation
  • Tech Policy Podcast #214: Information Intermediaries in a Nutshell