Jim Jordan’s flimsy crusade against Microsoft. When House Democrats earlier this month unveiled a new package of economic interventions and tech-company meddling under the guise of antitrust law, Ohio Republican Rep. Jim Jordan decried the effort as “a marriage of big tech and big government” that would “make the situation even worse.” Now, Jordan is taking the same aggressive and expansive antitrust attitude against Microsoft.
In a June 21 letter, Jordan—ranking Republican on the House Judiciary Committee—accuses Microsoft of being “out to get conservatives.”
But his theory of how Microsoft is “out to get conservatives” largely rests on a few anecdotes about Microsoft-owned LinkedIn suppressing posts about Joe Biden’s son Hunter, recent executive orders, or COVID-19. And the letter doesn’t bother providing the actual content of posts that were supposedly unfairly removed, nor the circumstances of their removal. (Further examination reveals they’re not all what they seem; one of Jordan’s examples links to a post on The Volokh Conspiracy—which is hosted by Reason—explaining that while one of Stewart Baker’s LinkedIn posts about Hunter Biden was removed, multiple others on the same subject were allowed. “I’m guessing that a lame algorithm is the real culprit,” writes Baker.) Nor does Jordan indicate the prevalence of such so-called censorship or how it compares to LinkedIn’s removal of non-conservative content. Jordan’s argument is simply that Microsoft may have made a handful of content moderation decisions he doesn’t like, so federal meddling is warranted.
Jordan also blasts Microsoft for allegedly taking “aggressive editorial control over content on its platforms” and excluding certain Bing search engine results to please China. He also complains about an opt-in feature for Microsoft Word users that will suggest “inclusive language.” None of these things come remotely close to being antitrust violations (nor illegal in any other capacity).
Jordan falls into the same trap so many Republican and Democratic anti-tech zealots do these days: mistaking his personal or political desires for how companies should do business with something the federal government in a free market and First Amendment-beholden society has the right to demand.
Even if Microsoft was explicitly removing certain conservative content from LinkedIn, it would have nothing to do with antitrust law. Nor would the company be running afoul of the federal communications law concerning legal liability for user-generated posts. Deciding what types of content will and won’t be allowed on a website is neither illegally anti-competitive behavior nor barred by Section 230 of federal communications law. In fact, it’s expressly protected by Section 230. It’s also shielded by the First Amendment, under which the government can’t force a private company to platform any particular type of speech.
This doesn’t mean folks must simply accept unfair treatment by tech companies. Consumers can stop using private platforms whose speech policies and practices they don’t like. They can call for boycotts and otherwise campaign against them. Or they can campaign to get them to change their policies. What they can’t do is use the government to force their hands. (See also: Masterpiece Cakeshop, which was back in court recently.)
The bottom line is Jordan’s insistence that Microsoft turn over information about its content moderation and other business practices cannot be justified on antitrust grounds nor by any other reasonable measure. Federal officials don’t get to just demand that private citizens or companies answer to them about their First Amendment–protected decisions.
Jordan is right about one thing, however: it is strange that Microsoft has been so absent from today’s overreaching antitrust revival. Though Microsoft was the bête noire of antitrust zealots in the 1990s and early ’00s—for more on how Microsoft was targeted by antitrust regulators of yore, see my recent Reason feature on the bipartisan war on big tech companies—it has largely escaped the wrath of today’s crusaders against tech companies.
Back then, the company had cultural cache and rising power. Today, it’s still a powerhouse but it doesn’t stir culture war sentiment the same way, say, Facebook and Google do. That it’s largely been exempt from recent antitrust crusades speaks more to the highly political (and performative) nature of such crusades than anything else. In a just world, however, none of the tech companies under fire would be subject to such nonsense. Instead, Jordan seems eager to even the playing field by putting Microsoft under the same unwarranted political persecution as some of its competitors.
FREE MINDS
Biden moves to undo part of his disastrous drug war legacy:
NEWS w/@seungminkim:
Biden admin plans to endorse specific legislation Tues that would end disparity in sentences between crack and powder cocaine offenses that Pres. Biden helped create decades ago, according to ppl with knowledge of the situation. https://t.co/zcWzdRRVdD
— Sean Sullivan (@WaPoSean) June 21, 2021
FREE MARKETS
Has technology startup creation “sharply declined”? Members of Congress trying to push new antitrust laws keep saying so. But actual data suggests otherwise:
Global Venture Capital investment in 2021 https://t.co/typt1OdSF9 pic.twitter.com/RiZmTa7Yvx
— Yoram Wijngaarde (@yoramdw) June 16, 2021
QUICK HITS
• A new report from the Government Accountability Office suggests the 2018 “anti-sex trafficking” law FOSTA has done little to actually combat sex trafficking. A thread:
One part of #FOSTA / #SESTA was that the Gov Accountability Office was required to report out what happened – today they released the report: https://t.co/5AnUFHO3oQ
— Kate (@KateDAdamo) June 21, 2021
• 150 million people in the U.S. are now fully vaccinated against COVID-19, the White House says.
• The delta variant of COVID-19 is now rapidly spreading here.
• A new Department of Justice proposal “encourages states to take away people’s Second Amendment rights based on little more than bare allegations,” warns Reason‘s Jacob Sullum.
• Department of all-politicians-are-hypocrites: “Many of the Senate Democrats who are now calling for changes to the legislative filibuster expressed different views on the 60-vote threshold when Democrats found themselves in the minority over the last six years.”
• “The NCAA is not above the law,” rules the Supreme Court.
• The U.S. Court of Appeals for the 9th Circuit backs California’s assault weapon ban. “In an order Monday, a three-judge panel on the federal appeals court issued a stay of US District Judge Roger Benitez’s order earlier this month that overturned California’s three-decade old assault weapons ban,” notes CNN.
• How an equal pay law in Colorado is backfiring.
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