In contrast to the comprehensive legislation enacted by the EU to regulate Big Tech, as previously discussed on this site, the United States Congress has done very little on this subject despite repeated threats and promises by individual legislators to do so.  Rather, in the U.S. recent efforts to reign in the power and influence of Big Tech has come from administrative efforts by the Biden Administration to curtail “misinformation”; reinvigorated enforcement of existing antitrust laws by the Justice Department and Federal Trade Commission (FTC); and enactment of legislation by certain conservative states.

Biden Administration Efforts to Combat Misinformation

Efforts by the Biden Administration to reign in “misinformation” on social media platforms has included persistent contact with big social media companies like Facebook, YouTube (Google) and X (formerly Twitter) to convince them to more strictly monitor and police what the administration perceives as “misinformation” that is particularly harmful to the public. These efforts have focused on what the administration determined to be inaccurate information about Covid-19 vaccines, as well as foreign-generated misinformation about election fraud and Hunter Biden’s laptop.  These efforts have been found by the 5th Federal Court of Appeals to violate the First Amendment rights of posters who have been censored by the platforms.  Even though the censorship was instituted was by private platforms rather the government directly, the 5th Circuit held that several of the government agencies, including the White House, FBI and CDC had gone beyond merely trying to persuade the platforms into taking action (which is permissible), and into activity that was deemed to be “significant encouragement” or “coercion” (which is not permissible).  This ruling is likely headed for appeal to the U.S. Supreme Court, and will be the subject of future postings on this site.

Antitrust Cases

The Biden Administration also has dusted off the century-old Sherman Antitrust Act to sue Google over its market dominance in relation to the company’s search engine.  The government’s case centers on agreements that Google has made with Apple, Samsung, and others that make its product the default search engine, thereby providing a barrier for any other search engine to become competitive.  At this writing the case is in trial in the D.C. District Court.

Earlier this year the U.S. Justice Department filed another suit against Google in relation to its allegedly anticompetitive actions in monopolizing digital advertising technologies.  It will take some time for this case to come to trial.

And just last month, the FTC filed suit against Amazon, alleging that it has engaged in unlawful monopolistic practices which have stifled competition and led to higher prices for consumers. The focus of FTC’s case is on Amazon’s anti-discounting policy, which the government says punishes sellers who seek to offer their products at lower prices on other platforms.  It also alleges that Amazon’s policy for allowing sellers to be eligible to participate in its Prime program makes it more expensive for sellers to offer their products on other platforms.

State Legislation

At least two states, Florida and Texas, have passed legislation seeking to regulate content-moderation policies by big social media platforms.

The Florida statute prohibits certain large platforms from “deplatforming” political candidates, prioritizing posts about candidates, or removing posts by  “journalistic enterprises” based on content.  Proponents of the statute have stated that its purpose is to combat Big Tech’s perceived bias against conservative speech in favor of a “radical left” agenda.

The Texas statute broadly prohibits large platforms from censoring social media posts based on viewpoint or the geographic location of posters.

The 11thCircuit Court of Appeals has enjoined enforcement of the Florida statute on grounds that it has infringed on the First Amendment free speech rights of the platforms to exercise their editorial judgment, and that it further conflicts with the federal statute (47 U.S.C. 230) that grants broad immunities to internet platforms.  The 5thCircuit has upheld the Texas statute reasoning that the First Amendment does not give corporations the right to muzzle speech or censor what people say.

The reasoning of the 11th Circuit and 5th Circuit is not intellectually reconcilable.  So, it is fortunate that the U.S. Supreme Court has granted certiorari, and has agreed to weigh in on the important issues raised by these cases. This site will report on the progress of this case.