Congress Criminal Justice & the Rule of Law

Content Moderation Sacrificed in Left-Right Deals on Tech Reform

Matt Perault, Berin Szóka
Wednesday, December 7, 2022, 10:12 AM

Democrats are repeatedly turning to a strategy that enables them to secure Republican support for competition legislation, but with steep long-term costs for content moderation.

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With the clock ticking on the postelection lame-duck session of Congress, tech reformers are pushing for votes on a package of bills that stalled over the summer. Three bills—the American Innovation and Choice Online Act, the Open App Markets Act, and the Journalism Competition and Preservation Act—would write special competition rules for large tech companies in ways that could fundamentally change how tech platforms moderate content like hate speech, disinformation, and incitement to violence. The Senate Judiciary Committee has sent all three bills to the Senate floor. But whether any of these three bills becomes law likely depends on whether Democrats and Republicans can hold a fragile coalition together in which each side ignores the thing that scares them most about the other: Republicans’ fear of big government that interferes in the market, and Democrats’ fear of harmful content proliferating online.

Over the past few years, Democrats and Republicans have made common cause in seeking to rein in Big Tech. But the two parties have struggled to find areas of agreement on a wide range of other critical issues, ranging from environmental policy to health care. Nevertheless, in seeking to reform the rules governing competition in the tech sector, Republican Sen. Ted Cruz (Texas) has stood alongside Democratic Sen. Amy Klobuchar (Minn.) to try to curb Big Tech power, and Republican Rep. Ken Buck (Colo.) has joined hands with Democratic Rep. David Cicilline (R.I.) to advance antitrust legislation. Despite Democrats’ and Republicans’ long-standing disagreements and their conflicting visions of what a better internet might look like, what has been the magic formula that has enabled them to work together?

The answer is simple: Republicans support proposals to reform antitrust law when—and only when—Democrats include provisions that would make it harder for tech platforms to moderate content in ways conservatives think disadvantage them. 

Despite the clear political benefits of this strategy, it requires Republicans and Democrats to subsume other competing values and priorities beneath the goal of curbing tech platform power. For Republicans, it requires them to brush aside their distaste for government interference with the free market and for giving government agencies more power to regulate business practices. Democrats must pretend that limiting platforms’ ability to moderate harmful content on their platforms is not directly at odds with their concerns about the proliferation of exactly this type of online content. Democrats have pressured tech companies to be more rigorous in restricting hate speech, content that could harm people of color and women, and misinformation about elections, public health, and the environment. But restricting platforms’ ability to differentiate between content providers based on viewpoint will make it harder for them to moderate this harmful speech.

The most prominent example of this strategic compromise is Klobuchar’s proposed American Innovation and Choice Online Act (AICOA). AICOA would bar large tech platforms from adopting policies that would give preference to their own products over others’. For example, when users search for a restaurant in their area, Google might not be able to provide a unit at the top of their feed that includes a phone number, directions, and a link to online ordering. But the bill also holds companies liable if they “discriminate in the application or enforcement of the terms of service of the covered platform among similarly situated business users.” A further requirement—“in a manner that would materially harm competition”—was added to that provision, and others, in an effort to protect content moderation (by focusing on economic harms), but no one really knows what it would mean in practice. 

Taken together, these provisions would restrict platforms’ ability to enforce their content standards: A covered platform that takes action to moderate content could be dragged into court if they are accused of making anti-competitive decisions on what content to host or remove. During Senate debates on the bill, Cruz noted, approvingly, that AICOA would “make some positive improvement on the problem of censorship” because “it would provide protections to content providers, to businesses that are discriminated against because of the content of what they produce.” 

A number of Democrats have pleaded with AICOA’s sponsors to amend the bill to ensure that platforms can still take action against hate speech and misinformation, but AICOA remains unchanged. Klobuchar, it seems, simply can’t afford to drop or revise the ban on discrimination by platforms, lest the bill lose crucial Republican support. For now, the bill looks stuck.

The same goes for the Open App Markets Act (OAMA), introduced by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.). OAMA focuses only on app stores but would make content moderation even harder in that context. The bill purports to ban self-preferencing in app stores’ search results—for example, treating an app “unequally” compared to a platform’s own app or those of its “business partners.” But courts may interpret that provision to ban discrimination more broadly. Courts will likely reach the same result simply because most app developers are “business partners” with the covered platforms, if only because they share revenue from in-app ads and purchases. “Extremist outlets and disinformation sites could sue platforms for blocking them,” warned Rep. Zoe Lofgren (D-Calif.). She explained, Alex Jones’s “Infowars may sue Apple for being kicked out of the app store, while other conservative political outlets are left up.”

The one bill that might actually move—and quickly—is the Journalism Competition and Preservation Act (JCPA). JCPA is supposed to ensure that serious journalistic outlets get paid for their content. But as with AICOA and OAMA, Republicans and Democrats have aligned on a strategy that marries market reform and content moderation. JCPA exempts publishers from antitrust law when they form cartels to collude in negotiating with tech platforms over the “pricing, terms, and conditions” under which platforms can access the content of publishers in a cartel. The JCPA would prevent platforms from discriminating against cartel members based on the “views expressed” by their content, and would prevent cartels of news publishers from denying admission to a publisher based on viewpoint. That means extremist, pseudo-journalistic publishers of hate speech, misinformation, incitement to violence, or some combination (such as Gateway Pundit, Infowars, and Project Veritas) could benefit from the bill. Ironically, the same news publishers that have long argued that tech platforms are responsible for proliferating low-quality, dangerous content now support a bill that could limit tech companies’ ability to exclude such content from their platforms.

As with AICOA, JCPA’s hopes for passage depend on maintaining the alliance between Democrats pushing for antitrust reforms and Republicans seeking to limit the power of Big Tech to “censor” speech they favor. When cracks appear in that alliance, the legislation flounders. 

During the markup of the journalism bill, Klobuchar was forced to withdraw JCPA after Cruz introduced an amendment on precisely this issue. After deliberations, the two compromised on new language that says deals struck between cartels and platforms can’t address content moderation or “curation.” Cruz claimed that his amendment “secured significant protections against Big Tech censorship.” He also included a statement of support from the Daily Caller—a publication that the Southern Poverty Law Center has deemed to have a “white nationalist problem”—which said the bill would “prevent[] news organizations from colluding with tech companies to suppress or censor conservative voices.” 

This last-minute compromise illustrates the larger problem: It should prevent cartels organized under JCPA from forcing tech companies to carry content they don’t want. But it won’t stop the law from being weaponized against content moderation. JCPA still bans “retaliation”—a term defined so broadly (“refusing to index content or changing the ranking, identification, modification, branding, or placement of the content”) that essentially any content moderation decision could be framed as “retaliation” against a publisher participating in a negotiation. 

More generally, the new language probably won’t prevent platforms from having to pay for content they don’t want. That’s partly because payment obligations remain tied to “access,” a term defined broadly to include merely “crawling” or “indexing content.” That’s exactly what platforms often do before they can decide whether content violates their community standards. It’s also what happens when users upload content (especially videos) that may be eligible for monetization. The bill would also likely force platforms to pay for content they carry but that they deem ineligible for monetization because it includes, for example, hate speech or harassment.

The alliance between Democrats pursuing antitrust reform and Republicans seeking to protect speech they think helps them appears to be a shrewd political strategy that will increase the possibility of Congress enacting legislation to reform the tech sector. It is clear that both parties recognize its value and have used it as the basis for modifying tech reform proposals to increase their chance of passage. The JCPA was originally introduced by Rep. Cicilline in 2018 during the 115th Congress, and then subsequently reintroduced in the House and the Senate in 2019 during the 116th Congress and in 2021 during the 117th Congress. None of the previous versions of the legislation includes the provisions on viewpoint, and, perhaps not coincidentally, none of the previous versions was voted out of committee.

The alliance also distracts lawmakers from considering substantive possibilities that might be more impactful in addressing the underlying problems. For instance, JCPA’s supporters say they want to support struggling news publishers and increase the quality of local news. So why not tackle that problem directly? Why not consider public interest journalism models, such as through direct support (like PBS and NPR), through tax incentives for nonprofit models (like ProPublica and the Texas Tribune), or through policies that decrease newsroom costs or subscription costs (like Canada’s measures to provide tax rebates for publishers’ labor costs and to increase news subscriptions by making them tax deductible)? These options have been largely absent from the debate—probably because they meet neither Democrats’ desire to curb platform power nor Republicans’ desire to reduce content moderation.

The bills’ downsides may be worthwhile to the proponents of reform. Supporters of AICOA and OAMA argue that a nondiscrimination rule is necessary to promote more competition in the market. JCPA’s supporters argue that publishers must be permitted to collude so that they can negotiate fairly with tech platforms. Perhaps. 

But amid disagreements about the merits of these proposals to reform antitrust enforcement in the tech sector, it is important for policymakers to not pretend that they will come without a cost. Legislators should acknowledge that their efforts to constrain tech company power will also constrain the companies’ power to moderate harmful content, and should more honestly and transparently account for the benefits and costs of this approach. A left-right alliance between critics of tech platforms may make it possible for Congress to pass tech reform, but only at a steep price to company efforts to moderate harmful content on their platforms.

Editor's note: A sentence in this article has been revised for clarity.

Matt Perault is a contributing editor at Lawfare, the director of the Center on Technology Policy at the University of North Carolina at Chapel Hill, and a consultant on technology policy issues.
Berin Szóka is President of TechFreedom, a think tank dedicated to technology law and policy. Before founding TechFreedom in 2010, Berin was a Senior Fellow and the Director of the Center for Internet Freedom at The Progress & Freedom Foundation. Previously, he practiced telecommunications and Internet law at Latham & Watkins LLP and Lawler Metzger Milkman & Keeney, LLC, and clerked for a federal district judge. He is graduate of the University of Virginia School of Law.

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