The Weak Argument Jeopardizing Tech Antitrust Legislation

Opponents of the antitrust push targeting Big Tech have lobbed all kinds of arguments to try to weaken support for new legislation. The relevant section says that a “covered platform”—the likes of Google, Amazon, Apple, Meta, or Microsoft—cannot “discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition.” This does not appear to ban or limit content policies. If a new video-sharing app was eating into YouTube’s market share, for instance, this provision would prevent Google from selectively invoking some little-used policy to ban it from its app store. Under the new bill, however, a conservative state attorney general, like Texas’ Ken Paxton, would be able to sue the platforms, claiming that they discriminated against Parler because of its conservative affiliation. “It’s easy to cast those judgment calls as discriminatory, especially when you have judges who feel that their side is the one being discriminated against.” He adds, “Boy, are you handing the conservative judges on these courts a loaded weapon, knowing they’re going to be backed up by all the conservative Supreme Court justices.”