Free Speech Advocates Express Concern over Antitrust Bill Loophole

The Open App Marketplace Act, a major part of the Democrats’ antitrust push against Big Tech, is under fire from progressives and establishment pundits who argue that it will make it harder to censor “hate speech” and “disinformation.” But conservative free speech advocates argue the opposite — that the bill doesn’t do enough to safeguard free speech.

Last week, a group of Democrat-aligned, national security establishment pundits including James Clapper and Leon Panetta signed a letter about how legislation requiring “non-discriminatory access for all ‘business users’  . . . on U.S. digital platforms” would “hamper the ability of U.S. technology platforms to counter increasing disinformation and cybersecurity risks.”

While they did not point to the specific legislation, they undoubtedly were referring to two bills: the American Choice and Innovation Online Act (ACIOA) and the Open App Markets Act.

ACIOA would restrict Big Tech platforms from discriminating in favor of their own products against other “business users,” and the Open App Markets Act would more narrowly prevent app hosting platforms (currently including Google, Apple, and, to some extent, Microsoft), from discriminating in favor of their own apps or forcing other apps to use their app stores.

While these bills are not meant to fight censorship – indeed the primary Democratic sponsors Richard Blumenthal and Amy Klobuchar are amongst the most vociferous advocates for censorship – these deep state functionaries along with a host of Big Tech funded leftist organizations such as the Free Press and Center For Democracy and Technology worry that the bills could impede “content moderation”.

The leftist advocacy groups argue the bills could prevent Apple or Google from blocking either free speech apps (such as Gab, Parler, Gettr, Truth Social, and Rumble), which don’t sufficiently censor “disinformation” and “hate speech.”

However, the bills have a glaring loophole, which conservatives are pointing to as a sign that the bills do not go far enough. Both allow Big Tech to discriminate against content if there is a “safety” justification. Safety has become a euphemism for censorship. Twitter, Google, Apple, Facebook, and Spotify all have “Safety” or “Trust and Safety” groups in charge of political censorship.

These concerns are compounded by the fact that in the immediate term, the law will be enforced by Biden’s far-left and pro-censorship FTC. As Breitbart has noted in the past, FTC Chair Lina Khan has advocated using antitrust to go after “disinformation” and appointed far-left anti-free speech extremists in key positions.

Parler CEO George Farmer has come out against the bills, saying the focus should be on free speech. Numerous attorneys and entrepreneurs who have fought Big Tech censorship have called for amending the law. Noah Peters, an attorney who has represented conservative whistleblowers at Google and the Canadian feminist Meghan Murphy (who was banned for “misgendering”) noted in the American Conservative, “we can readily foresee how Big Tech companies will interpret this language. Virtually every Big Tech platform has a ‘trust and safety’ or ‘safety’ section in their Terms of Service, including rules against so-called hate speech, extremism, and misinformation”

Adam Candeub, a law professor at Michigan State University who served as the head of the National Telecommunications and Information Agency where he implemented Trump’s free speech executive order, generally supports the policies underlying the bills but agrees with the need for Amendments.

According to Candeub, “if you look at how Section 230, which was enacted to protect free speech has become Big Tech’s favored defense for censorship due to some awkward phrasing, any law regulating digital markets must be unambiguous.”

Candueb recommended language which would “explicitly state the large tech platforms cannot use an app or competing business’s constitutionally protected speech or content moderation policies as a defense against enforcement.”

Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.