Why Companies Shouldn’t Make Political Donations

After the Capitol riot, Twitter, Facebook, Apple, Google and Amazon each took steps to curb disinformation and incitement, resulting in digital suspensions for President Trump, thousands of QAnon conspiracy accounts and the social media platform Parler. Together, the moves demonstrated Big Tech’s vast influence over the marketplace of ideas — a power that worries lawmakers on both the right and left.

Parler is suing Amazon for suspending web hosting services, which effectively shut down the platform. In its suit, Parler said Amazon’s decision was “motivated by political animus” and “designed to reduce competition in the microblogging services market to the benefit of Twitter.” Experts told DealBook that Parler’s complaint contained elements of a successful antitrust claim, including a victim, a villain and harm through exclusion. But it is missing a key element: an economic theory to explain Amazon’s motivation for excluding Parler on behalf of Twitter, another Amazon customer. Parler also undercuts its antitrust arguments by citing political animus, they said.

“There lurks here an important issue,” noted Douglas Melamed of Stanford’s law school, a former assistant attorney general who headed the Justice Department’s antitrust division. He said he had “no quarrel” with the president or Parler being cut off. But, he added, “in the long run, everyone should be worried that a few companies have an enormous amount of power, especially where free speech is implicated. It could justify some kind of breaking up.”

The First Amendment applies only to public actors, not private ones, so Amazon isn’t violating any constitutional rights by dropping Parler. But there are free speech considerations, said Genevieve Lakier, a First Amendment scholar at the University of Chicago. If a few private actors control the public discourse, there is little reassurance they will publish a diversity of ideas. She asked: “Does Congress need to step in and establish more rules?”

Speaking of rules, Mr. Trump has renewed vows to repeal Section 230 of the Communications Decency Act, which shields internet platforms from liability for user content. Republicans argue that platforms discriminate against them and should moderate less, while Democrats seek stricter policing of hate speech. Lawyers say repealing the legal shield would subject companies to defamation suits, but could punish the general public most of all. It would make platforms more cautious, meaning a less robust public discussion, said Katie Fallow of the Knight First Amendment Institute. She suggested “thoughtful reform around the edges.”