Media: Op-Ed

Mike Davis on Substack: Conservative Response to New Big Tech Framework

July 9, 2021

These frameworks leave individual Americans to pay for enforcing the laws against Big Tech

The Judiciary Committee frameworks create a private right of action for Americans to vindicate their rights when Big Tech infringes upon them. Under this framework, Americans will be given “the chance to sue the tech giants for a[n] infringement of their free speech rights.” The frameworks also seek to move all antitrust enforcement authority to the DOJ thereby cutting off half the government’s resources to go after Big Tech for antitrust violations. These proposals combined effectively shift the burden and cost of enforcement onto the individual citizen and are a huge win for Big Tech.

Civil litigation in federal courts is lengthy and expensive. The 2020 Judicial Conference report stated that district civil filings increased 16% in 2020 and the average district court judge received 521 new filings. Additionally, during the pandemic, most federal district courts paused civil cases so there is a substantial backlog in the system. Increased filings and existing delays will mean new cases will not be resolved for months or years.

Paying for the lawyers necessary to go up against Big Tech is even more daunting. The lawyers Big Tech employ are sophisticated and expensive and Big Tech will fight these cases from district court, to the federal courts of appeals, and finally to the Supreme Court. All of this legal work costs a lot of money, which the average American does not have the budget for—but Big Tech does. Additionally, the further along in the judicial system you go, the more expensive the lawyers usually become. For example, the average hourly rate for Supreme Court litigators varies from $600 – $1800 PER HOUR based on recent reporting.1 Only Fortune 500 companies can afford these rates. The average household income in the United States is $56,310.2 That breaks down to about $1,082 PER WEEK.

The federal government already employs hundreds of lawyers at the FTC and DOJ whose sole job is to litigate antitrust cases on behalf of the American people. Cutting that in half and shifting the cost of enforcement onto working families and regular Americans who cannot afford to hire the lawyers necessary to take on Big Tech’s army of very expensive and sophisticated lawyers is extremely unfair and only benefits Big Tech.

The likelihood of the average American being able to vindicate their rights through this new process is virtually zero. This is a win for Big Tech.

Getting an antitrust case to the Roberts Court faster is just going to result in Big Tech spending less money on antitrust lawyers

The Judiciary Committee and Leadership frameworks make much of the expedited processes their proposals would create. The proposals state that “these actions take too long and they allow companies years of legal maneuvering…Antitrust cases take so long to litigate in part because of the length of the appellate process. Borrowing again from aspects of the Expediting Act of 1903, this proposal would speed up consideration of these cases by providing for a direct appeal to the Supreme Court and requiring the Supreme Court to act quickly when these cases get there.”

A 2014 article pointed out, “[a]lthough the Supreme Court’s overall caseload has shrunk under Chief Justice Roberts, the Court’s antitrust docket strikingly has tripled. Since 2005, when Chief Justice Roberts succeeded William Rehnquist, the Court has taken 14 antitrust cases, compared to just five decided by the Rehnquist Court between 1993 and 2003.”3

The vast majority of those cases were decided in favor of the defendant (e.g., corporate America/ Big Tech companies).

The antitrust laws need to be revised if Big Tech’s anticompetitive practices are going to be stopped. Getting an antitrust case to the Roberts Court quicker just means Big Tech is going to spend less money on antitrust lawyers.

Expediting antitrust cases could make the case for the Democrat-controlled Congress to create more federal judgeships for the Biden Administration to fill

The frameworks outline that one of their primary solutions to taking on Big Tech’s monopolies is to revive concepts in the Expediting Act of 1903 to make antitrust cases move faster through the federal courts. The Expediting Act provided that, upon certification by the U.S. Attorney General that a case was of sufficient public interest, a three-judge panel would hear a case at the district court level and then the case became immediately appealable to the Supreme Court.

If this legislation utilizes a similar concept, the federal judiciary will face additional strain in terms of cases that need to be expedited and likely additional cases being filed. The Speedy Trial Act already requires federal courts to prioritize federal criminal cases because it imposes deadlines on the courts in criminal cases. The frameworks’ proposal would require that federal courts then prioritize federal antitrust cases and use additional judicial resources (three judges vs. the usual one) in the disposition of those cases.

As the 2020 Judicial Conference report outlined, district civil filings increased 16% and criminal filings rose 3% in 2020. That report also recommended that Congress create 5 new judgeships for the Ninth Circuit (Big Tech’s home appellate court) and 65 new judgeships at the district level, with almost half of those slots going to California districts (10 for the Central District of California; 4 for the Northern District of California (Big Tech’s home district); 5 for the Eastern District of California; and 4 for the Southern District of California).

Further increasing judicial caseloads could likely give Democrats the argument they need to pack the federal judiciary with more of their ultra-progressive judges, especially in California. President Trump’s Administration and the Senate led by then-Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Majority Leader McConnell put a special emphasis on confirming conservative judges and succeeded in bringing more ideological balance to the Ninth Circuit. This proposal will just undo all that progress.

No new authorities for the state AGs

Both the Leadership framework and Judiciary Committee frameworks state that they will “empower state attorneys general to help lead the charge against the tech giants to break them up.” The state attorneys general are already doing this. The Texas-led antitrust case against Google’s ad tech business already asks the court for divestiture as a remedy.4

The state attorneys general do very important work in enforcing the federal antitrust laws. The state attorneys general were leaders in filing antitrust cases against Big Tech, and they deserve commendation for the crucial work they do. In fact, because of the outstanding work they have done to curb the anticompetitive conduct of Big Tech, there are two proposals that broaden their enforcement authority: H.R. 3816, the “American Innovation and Choice Online Act of 2021,” and H.R. 3826, the “Platform Competition and Opportunity Act of 2021,” give enforcement authority to the state attorneys general to tackle violations of these laws.

The July Judiciary Committee publication states that “[t]his proposal would allow state attorneys general to utilize the same fast-track procedures available to the Federal government so that they will be on equal footing in their cases.” Notably, this does not give the state AGs new substantive enforcement tools, it just enables them to utilize the fast-track option (if the U.S. Attorney General signs off).

Nothing in these proposals gives them tools to break the Big Tech companies up.

States will now be on the hook to enforce federal antitrust laws?

The Leadership framework seems to imply that antitrust enforcement authority will be removed from the federal agencies and vested in the state attorneys general: “I have more faith in elected state leaders than in the unelected federal bureaucracy, which is as ideologically homogeneous as Big Tech. In other words, I think our former colleague Jeff Landry will more effectively prosecute anti-competitive behavior than Lina Khan.”

Such an approach could pose problems on several fronts. First, the state attorneys general are chronically underfunded with regards to antitrust enforcement. The state attorneys general band together to file cases, not because they prefer to do so, but because their respective funding levels make it an economic necessity.

Second, in our system of government, the federal government has primary responsibility to enforce federal law and the states have the power to enforce federal law where Congress expressly gives them that authority. There is not another example in federal law where Congress has passed a federal law and vested primary (not concurrent) enforcement responsibility in the states.

This approach would also result in substantial issues in enforcing the federal antitrust laws. The U.S. Supreme Court has held that Congress may not commandeer a state to enact or administer a federal law.5 Additionally, the Court has found that Congress may not circumvent the 10th Amendment’s prohibition on commandeering by conscripting a State’s officers directly.6

Thus, Congress cannot pass legislation requiring the state attorneys general to enforce federal antitrust law. The enforcement of federal antitrust laws then becomes voluntary. This is a dereliction of duty on the part of the federal government. Frankly, it could likely be unconstitutional. The only group that would benefit from such a scheme is Big Tech.

Lastly, the Judiciary Committee framework says it would “…also move all antitrust enforcement to the Justice Department, taking away the arbitrary and bureaucratic way in which decisions are made about which government agency brings what cases and taking these powers away from radical Biden bureaucrats.” The Leadership framework vaguely eludes to this same proposal: “We will also reform the administrative state….”

It is not breaking news that the current Department of Justice is also led by “radical Biden bureaucrats”. Just last month, Attorney General Merrick Garland stood at the Justice Department podium with Vanita Gupta and Kristen Clarke to announce the filing of a lawsuit challenging Georgia’s new election law. Merrick Garland’s Justice Department and FBI are also pursuing every participant in the events of January 6 with the fervor usually preserved for going after al-Qaeda or the mob.

Are the Big Tech companies going to be fined for censoring conservatives or not?

The Judiciary Committee and Leadership frameworks state that they would “…mandate that any Big Tech content moderation decisions or censorship must be listed, with specificity, on a publicly available website.” The Judiciary Committee frameworks further states that “[a] tech giant’s failure to do so will result in massive fines.”

However, there are significant differences between the Judiciary Committee frameworks and the Leadership framework. The Judiciary Committee frameworks’ proposal to fine these companies for bad acts does not appear to have made it into the Leadership framework. Without a substantial incentive for complying with the law, Big Tech will just continue to censor conservatives. Also, if Big Tech’s monopoly power is not dealt with, Big Tech will continue to censor conservatives using their gatekeeper power.

The Leadership framework’s enforcement plan appears to expect the Big Tech platforms to self-police: “…by requiring Big Tech to implement and maintain a reasonable user-friendly appeals process, our plan will empower conservatives and others whose speech rights have been infringed to challenge Big Tech’s attacks.” The Big Tech platforms already have appeals processes in place. Those processes are not working. This is just a codification of the status quo.

The Section 230 proposals are paper tigers

Both frameworks’ primary focus appears to be on reforms surrounding Section 230. The June Judiciary Committee framework states that it would “… repeal and reform Section 230 to take away the liability shield Big Tech has hidden behind for far too long.”

The Leadership framework would “…tak[e] away the liability shield Big Tech has hidden behind for far too long. Section 230 of the Communications Decency Act would be changed to limit liability protections for moderation of speech that is not protected by the First Amendment and would preclude Big Tech from discriminating against Americans based on their political affiliation.”

The July Judiciary framework states “Congress passed Section 230 of the Communications Decency Act to allow internet platforms to moderate unlawful or offensive content on their platforms. Big Tech has exploited this protection to make subjective content moderation decisions, often in a manner harmful to conservative voices. This proposal will ensure that any content moderation decisions are done in good faith, based on objectively reasonable criteria, and in accord with particularized rules.”

These proposals are murky at best. The Leadership framework needs clarity regarding what constitutes protected First Amendment speech on these platforms. Under current First Amendment caselaw, the platforms would likely still have been able to de-platform President Trump for his comments on January 6. These reforms must ensure that President Trump would be unconditionally allowed back on Facebook and Twitter, that there was a clear, articulable First Amendment standard to be applied in these cases. Additionally, these proposals need to address Big Tech’s interference in future elections through actions like censoring the New York Post’s Hunter Biden story and changing their algorithms to preference or punish certain political candidates.

The Judiciary frameworks still leave incredible amounts of discretion to the Big Tech platforms. Under this rubric, the Big Tech companies can just state in their content moderation policy that specific speech is not allowed and then they will be completely justified in taking the content down. This does nothing to protect conservatives and make sure they have a place in the digital public square.

1 Top Supreme Court Advocates Charge How Much Per Hour? | Above the Law

2 May 2020 National Occupational Employment and Wage Estimates (bls.gov)

3Mark Popofsky and Douglas H. Hallward-Driemeier, Antitrust and the Roberts Court, ABA Antitrust, Vol. 28, No. 3, Summer 2014.

4 Texas, in the prayer for relief section of its brief, asked that the court “order structural relief to restore competitive conditions in the relevant markets affected by Google’s unlawful conduct.”

5 New York v. United States

6 Printz v. United States