Fair Play: Google, Facebook, Twitter ‘Antitrust Situation’ Tough to Prove


Google

One day after President Donald Trump tweeted that Google Inc. search results were “rigged” against him, the conservative nonprofit Freedom Watch filed suit against Google, Twitter Inc., Facebook Inc., and Apple Inc. alleging a conspiracy to suppress conservative voices.

“Defendants have intentionally and willfully suppressed politically conservative content in order to take down President Donald Trump and his administration,” the complaint said.

It’s illegal under antitrust law for rival companies to agree among themselves to set prices or collectively refuse to do business with certain parties. The Justice Department has come down hard on price-fixing cartels in auto parts, generic drugs, financial services, and even packaged seafood.

The problem for enforcers, and private plaintiffs, is that cartels are hard to prove. Under the law, there has to be plausible evidence of an agreement among the alleged conspirators to dictate the market in a coordinated fashion. It isn’t illegal to act independently in ways that happen to be similar to one’s competitors.

Freedom Watch’s complaint cites YouTube’s decision to ban conservative pundit Alex Jones’s InfoWars channel as one example of how social media is suppressing conservative content. Apple and Facebook took similar actions against InfoWars with all three companies citing their user policies in doing so. Twitter temporarily banned Jones’s account.

Those companies couldn’t have avoided noticing what the others were doing when they made their decisions. It’s less clear that they collaborated among themselves and acted as a group.

Antitrust lawyers say that’s crucial to making a case. New York University antitrust law professor Eleanor Fox pointed to the U.S. Supreme Court’s 2007 decision Bell Atlantic Corp. v. William Twombly, which said evidence of parallel conduct, with no facts to show collaboration, isn’t enough to state a viable antitrust case.

Freedom Watch Chairman and General Counsel Larry Klayman, who authored the complaint, told Bloomberg Law that the alleged conspiracy among the social media giants can be proven by noting that it isn’t in their economic interest to remove or suppress content. “They’re doing it for political reasons,” he said.

The complaint puts it this way: “Defendants are losing significant revenue from conservative groups and individuals like Freedom Watch.”

That’s probably not enough to convince a judge to let the case go forward, antitrust attorneys said. Courts have found that if there’s a legitimate business reason for the conduct in question, the plaintiff has to show more than a simple monetary loss to prove unlawful collusion.

“A good judge would dismiss it out of hand,” predicted Stephen Calkins, an antitrust professor at Wayne State University and former Federal Trade Commission general counsel under President Bill Clinton. “Count one alleges nothing more than conscious parallelism, which is regularly held not to be unlawful.”

There are any number of reasons why Google, Facebook, and Twitter would cull posts, articles, and videos from their sites, and Freedom Watch isn’t the only party interested in them. The Senate Intelligence Committee is holding a hearing Wednesday, with Facebook and Twitter executives confirmed to appear, on how foreign operatives used their platforms to influence U.S. politics. There will be lots of questions about how the sites police content.

But those companies don’t have to go into that much detail to defeat the antitrust complaint. They simply have to state a rational reason for their decisions. The burden is on Freedom Watch to offer facts at the outset that could lead a judge to believe those reasons are bogus.

Freedom Watch said its YouTube channel subscribers have been static for the last six months after growing steadily over the past six years, “which simply cannot be a coincidence.”

Klayman told Bloomberg Law he wasn’t sure why that was happening, and that’s why he filed suit.

He’s like many policymakers, from both the right and the left, who want answers about how social media operates. But a judge won’t compel those companies to answer those questions unless there’s a clear set of facts that point to illegal collaboration. Coincidence isn’t enough.

What’s Happening

On Wednesday morning, Facebook’s Sheryl Sandberg and Twitter’s Jack Dorsey will appear before the Senate Intelligence Committee to discuss the company’s efforts to police online content. A Google representative has also been invited.

On Wednesday afternoon, Dorsey will appear before the House Energy and Commerce Committee to discuss his company’s algorithms and content moderation.

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