The Federalist Society’s Weak Interview of Lina Khan

November 11, 2023

On Friday, Lina Khan stepped into the lion’s den of the Federalist Society – and received a big wet kiss from the lion.

The tone of the interview was set by Todd Zywicki when he described how big social media platforms had deplatformed him and demonetized informed critics of U.S. government truisms about Covid-19. Todd has a point. Big Tech is in big trouble today because it thoughtlessly alienates people on both the left and the right – and especially on the right. Censorship and market dominance is not a good look.

This creates an opening for progressive antitrust to appeal to conservatives. Lina Khan saw this opening and deftly stepped in.

She knew her audience. She spoke of “liberty” and the need to “go back to our core values.” She made a textualist criticism of a “slippery” consumer welfare standard as something grafted onto the law without statutory justification. Thus, in her line of thinking, regulators who respect the consumer welfare standard are “unelected bureaucrats who put their own values into the statute.” She also portrayed Big Tech as unpatriotic, for selling us down the (Yangtze) river.

There was a disappointing lack of critical questions. No one asked about the FTC’s legal persecution of the developers of a life-saving blood assay test and the human cost that could have come from that. No one asked about the “precrime” approach of FTC in which Chair Khan somehow foresaw that Meta’s acquisition of Within, or Microsoft’s acquisition of Activision, would lead to future monopolies in markets that are already brimming with many powerful competitors.

This could have been a respectful clash of ideas. Instead, it was a platform for Chair Khan to make her radical ideas seem respectable.

Why do I say radical? Progressive antitrust creates so many ways to investigate and try cases against businesses and executives – for raising prices, for lowering prices, for bundling valuable services, for seeking efficiencies, for having a monopsony, or being “anti-worker” – that any company, any executive, could become a target at any time.

That is why former Commissioner Christine Wilson wrote that progressive antitrust is at its roots Marxist. It is about government control of the commanding heights of the economy. It is about generating fear.

Under such a regime, the first thing every executive will do every morning is look to Washington and ask, “how high do I need to jump today?” Todd Zywicki should understand that if Lina Khan succeeds in instilling her progressive paradigm, censorship will be far deeper and more pervasive than anything we can presently imagine.

These views were not represented at all today before the Federalist Society. So here’s a challenge for FedSoc – put on a similar event for Christine Wilson.