The Biden administration sabotaged its own workers’ attempts to enforce laws protecting free speech.
Under then-Attorney General Merrick Garland, the Department of Justice (DOJ) dismantled and perverted antitrust law, encouraging monopolization and discouraging free speech. This assault on the law imperiled enforcement actions taken by law-abiding officials in his own administration.
- Biden DOJ Sabotaged Liberal Efforts to Enforce Antitrust Law
President Joe Biden and the DOJ sabotaged antitrust efforts from a group of liberals known for their penchant for enforcing antitrust law.
Before becoming chair of the Federal Trade Commission (FTC), Lina Khan was famous as an antitrust scholar for her editorial “The New Brandeis Movement: America’s Antimonopoly Debate.” Khan argued that America should pursue more aggressive, comprehensive enforcement of antitrust law, as exemplified by the work of U.S. Supreme Court Justice Louis Brandeis.
Brandeis, a liberal appointed by a Democrat, ruled against President Franklin D. Roosevelt’s attempt to gut antitrust law and replace it with a corporatist structure. In addition to being an antitrust activist, Brandeis also argued in support of the First Amendment’s guarantee for free speech.
According to MRC Vice President for Free Speech Dan Schneider, this should not come as a surprise. “Free speech and free markets often go hand-in-hand. More market competition means it is harder for a few big actors to collude with the government to silence Americans. More monopolization means more censorship,” Schneider said.
Khan and those who share her philosophy have been referred to as “neo-Brandeisian” by a variety of outlets, including The Federalist, The Nation and the Washington Examiner. The neo-Brandeisian philosophy contrasts with the “whole-of-society” approach, where private and public actors are seamlessly integrated into a unified whole.
Biden was a champion of the “whole-of-society approach,” as was Garland, who invoked the phrase explicitly in a public speech just months into his tenure as attorney general.
Nevertheless, some prominent neo-Brandeisians did serve in the Biden administration. Among them was Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra, who criticized PayPal censorship and attempted to reinstitute rules blocking debanking. The Biden administration, for its part, had dismantled rules that protected Americans from debanking (as detailed by the James Madison Institute).
Khan herself served as FTC chair during the Biden administration (at the time, two of the FTC’s five members were Republicans). Alongside a bipartisan coalition of state attorneys general, Khan’s FTC brought sweeping antitrust cases against Amazon and Meta.
The aforementioned Amazon lawsuit detailed a litany of censorship actions the company took on its webstore platform that the FTC alleged were “unlawful.”
Among these censorship tactics:
- Banning users who sold goods on other platforms at more affordable prices (and, when receiving scrutiny for this conduct from senators, creating a “Buy Box” shadowban feature to do so more covertly).
- Rewriting its algorithms to suppress the posts of users who engage in price competition.
- Banning Prime users who attempt to contract with “independent fulfillment providers” for their packaging.
- Constantly changing its terms of service to grow its user base by claiming to be an open platform, and then banning its critics.
The aforementioned Meta lawsuit also listed a variety of antitrust violations the FTC claimed to have discovered, including:
- Presenting itself as an “open platform” before changing its policies and banning organizations it disliked — such as Circle, MessageMe and Voxer — from its critical application programming interfaces.
- Suppressing price competition by deliberately buying up competitors — such as Glancee and Onavo — not to incorporate them into its business but rather to shut them down.
- Buying Instagram primarily to rob Apple of the chance to merge with it.
- Penalizing developers who wished to leave its ecosystem by buying Octazen, which had their contact importer libraries.
- Buying WhatsApp because it was a formidable threat to Facebook Messenger, which Zuckerberg admitted was an inferior product.
- Banning and otherwise censoring users who posted links to competitors.
At the same time as the FTC and states were launching their litigation, Epic Games was fighting — and winning — its own legal war against Google’s censorship. Epic objected to both Apple and Google’s decisions to ban its popular game Fortnite from their respective app stores, which made up a combined 99 percent of the mobile market share, according to TeleMessage.
Though there were differences in the particulars of the lawsuits against Amazon, Apple, Google and Meta, they all had the same core point: a tiny amount of Big Tech firms had monopolized the marketplace of ideas, and were enforcing their anti-competitive market position through rampant censorship. As each lawsuit articulated in meticulous detail, that type of conduct was exactly what antitrust law forbade.
- Creating Anti-Antitrust Law
Instead of enforcing law against firms like Amazon and Meta, the DOJ was touting an imaginary, alternative version of antitrust law which, in fact, required firms to engage
in anticompetitive censorship.
Federal antitrust law prohibits exclusivity contracts that are designed to maintain incumbent firms’ market dominance and sabotage potential competitors. Both federal copyright law and the First Amendment prohibit the copyrighting of raw information or writing styles. Nevertheless, Assistant Attorney General for Antitrust Jonathan Kanter instead publicly threatened to take enforcement action against artificial intelligence (AI) developers who did not sign contracts with select publishers.
The result of these contracts — such as the one OpenAI signed with Laurene Powell Jobs’s hard-left magazine The Atlantic — is twofold. First, it provides a new revenue stream for dying legacy media outlets rejected by American consumers who desire real, rather than fake, news. Second, threats like Kanter’s act to dissuade AI developers from permitting their models to be trained on any media they are not comfortable publicly signing a development deal with. This means that the ideas and communication methods of dissident media are not reflected in AI responses, and AI models only cite incumbent, legacy media such as The Atlantic. The effect of this censorship is less competition and more consolidation of media markets.
Kanter’s actions were not consistent with antitrust law, but they were consistent with the Biden administration’s vision. The administration created a “Partnership for Global Inclusivity on AI,” where the Big Tech firms Anthropic, Google, IBM, Meta, Microsoft, Nvidia and OpenAI all pledged to work with the government to restrict online speech and train AI to favor specific ideologies.
This action undermined competition — without the Biden-backed compact, any one of these Big Tech companies may have been incentivized to risk leftist scrutiny and opt to court the consumers seeking an AI firm that embraced free speech and provided diverse perspectives. Kanter and Garland, of course, did not object to it.
Conclusion
The DOJ’s Antitrust Division is supposed to protect market competition and keep megacorporations from colluding to stifle innovation. For the past four years, it did the exact opposite.
Conservatives are under attack! Contact your representatives and demand they investigate the Justice Department’s censorship. If you have been censored, contact us using CensorTrack’s contact form, and help us hold government and Big Tech accountable.
