OP-ED

Censorship Can’t Fit Under ‘Consumer Harm’

Using antitrust experts to regulate social-media content is like asking brain surgeons to build a rocket ship.

Oct. 24, 2022

As a defender of the consumer-welfare standard in antitrust, I was at first taken with Michael Faulkender and Stephen Miran’s argument in “Censorship Is a Consumer Harm” (op-ed, Oct. 12).

The authors’ argument is simple: For almost half-a-century, courts have applied antitrust remedies when business practices harm consumers. The censorship of (usually conservative) content by big social-media platforms degrades the value of social media to consumers. Therefore, the skewed content-moderation decisions should be treated as antitrust violations.

But would this work? Antitrust legal and economic experts can decide whether the merger of two shoe companies is or isn’t a harm to consumers. How would an antitrust regulator apply law and market metrics to the anti-Semitic-tinged tweets of Kanye West? The ravings of Alex Jones? Posts that may be too “edgy”?

You can argue that consumers would be better off with completely open platforms, and that we should trust the good sense of people to reject anti-Semitism and the belief that the Sandy Hook parents are actors. Fine. But courts would likely rule that social-media executives have a First Amendment right not to be associated with vile statements.

A better approach is in the Pact Act, sponsored by Sens. Brian Schatz (D., Hawaii) and John Thune (R., S.D.), which would continue to give platforms immunity in exchange for clear content standards and due process for users. But using antitrust experts to regulate content? That’s like asking brain surgeons to build a rocket ship.

Robert H. Bork Jr.

President, Antitrust Education Project