ARGUMENT: CONTENT MODERARIONContent Moderation Sacrificed in Left-Right Deals on Tech Reform

With the clock ticking on the postelection lame-duck session of Congress, tech reformers are pushing for votes on a package of bills that stalled over the summer. Three bills—the American Innovation and Choice Online Act (AICOA), the Open App Markets Act (OAMA), and the Journalism Competition and Preservation Act (JCPA)—would write special competition rules for large tech companies in ways that could fundamentally change how tech platforms moderate content like hate speech, disinformation, and incitement to violence.

Matt Perault and Berin Szóka write in Lawfare that the Senate Judiciary Committee has sent all three bills to the Senate floor. But whether any of these three bills becomes law likely depends on whether Democrats and Republicans can hold a fragile coalition together in which each side ignores the thing that scares them most about the other: Republicans’ fear of big government that interferes in the market, and Democrats’ fear of harmful content proliferating online.

Perault and Szóka write:

Over the past few years, Democrats and Republicans have made common cause in seeking to rein in Big Tech. But the two parties have struggled to find areas of agreement on a wide range of other critical issues, ranging from environmental policy to health care. Nevertheless, in seeking to reform the rules governing competition in the tech sector, Republican Sen. Ted Cruz (Texas) has stood alongside Democratic Sen. Amy Klobuchar (Minn.) to try to curb Big Tech power, and Republican Rep. Ken Buck (Colo.) has joined hands with Democratic Rep. David Cicilline (R.I.) to advance antitrust legislation. Despite Democrats’ and Republicans’ long-standing disagreements and their conflicting visions of what a better internet might look like, what has been the magic formula that has enabled them to work together?

The answer is simple: Republicans support proposals to reform antitrust law when—and only when—Democrats include provisions that would make it harder for tech platforms to moderate content in ways conservatives think disadvantage them. 

Despite the clear political benefits of this strategy, it requires Republicans and Democrats to subsume other competing values and priorities beneath the goal of curbing tech platform power. For Republicans, it requires them to brush aside their distaste for government interference with the free market and for giving government agencies more power to regulate business practices. Democrats must pretend that limiting platforms’ ability to moderate harmful content on their platforms is not directly at odds with their concerns about the proliferation of exactly this type of online content.Democrats havepressured tech companies to be morerigorous inrestricting hate speech, content that could harm people of color and women, and misinformation about elections, public health, and the environment. But restricting platforms’ ability to differentiate between content providers based on viewpoint will make it harder for them to moderate this harmful speech.

Perault and Szóka conclude:

The alliance between Democrats pursuing antitrust reform and Republicans seeking to protect speech they think helps them appears to be a shrewd political strategy that will increase the possibility of Congress enacting legislation to reform the tech sector. It is clear that both parties recognize its value and have used it as the basis for modifying tech reform proposals to increase their chance of passage.

….

The bills’ downsides may be worthwhile to the proponents of reform. Supporters of AICOA and OAMA argue that a nondiscrimination rule is necessary to promote more competition in the market. JCPA’s supporters argue that publishers must be permitted to collude so that they can negotiate fairly with tech platforms. Perhaps. 

But amid disagreements about the merits of these proposals to reform antitrust enforcement in the tech sector, it is important for policymakers to not pretend that they will come without a cost. Legislators should acknowledge that their efforts to constrain tech company power will also constrain the companies’ power to moderate harmful content, and should more honestly and transparently account for the benefits and costs of this approach. A left-right alliance between critics of tech platforms may make it possible for Congress to pass tech reform, but only at a steep price to company efforts to moderate harmful content on their platforms.