Antitrust pandemonium!
And other big words. Plus, our thoughts on social media regulation, changes at the FTC, and smartphone searches at the border.
Last week, I told you about somewhere in the DC area where I probably wouldn’t step foot. This week, I’m sharing a place that you absolutely could find me patronizing: Planet Word. Planet Word is a museum in downtown DC dedicated to literacy, linguistics, and the value of language in our lives. If a glowing tree that hangs over you and speaks multiple languages sounds fun and not supremely disorienting, its first installation might be your cup of tea. Other exhibits are informative and great for kids, like the massive etymology wall and “magical” library.
Let’s say you’re in this for the fun of it, and you aren’t really in the mood for an educational experience. Believe me… I have those days, too. You can always stick to the museum’s karaoke room. No matter how you experience it, you’re sure to have “the best words” when you leave.
Social Media Regulation. On Monday, Florida filed its opening brief in the lawsuit challenging its new social media speech code, making exactly the arguments we predicted in our amicus brief. Ari analyzed Florida’s brief and tweeted a two-part megathread rebutting its arguments point-by-point. In the first part, he explained why Florida’s interpretation of Section 230 is not grounded in law or fact—not to mention common sense. In the second part, he expounded on the arguments we made in our own brief to debunk Florida’s claims that its law doesn’t violate the First Amendment and that it can treat social media websites as common carriers.
From the “platforms aren’t removing enough content” camp, Former Congressman Denver Riggleman co-authored an op-ed suggesting that the government could ban social media platforms that “promote hate.” Ari was quoted in an article refuting the claim that the First Amendment contains an exception for hateful speech.
Antitrust. We’ve been outspoken critics of the antitrust bills that the House Judiciary Committee narrowly approved yesterday—particularly the deceptively named American Choice and Innovation Online Act and the Ending Platform Monopolies Act. Our letter to the committee’s chairs pointed out that the bills try to regulate tech companies as common carriers in bizarre and unprecedented ways. We also teamed up with the Chamber of Progress and several other organizations to send out a joint letter warning the Judiciary Committee of these bills’ unpalatable implications for consumers (as Axios noted).
Berin subjected himself to watching (and live-tweeting) the House Judiciary hearing in which the committee considered those pieces of antitrust legislation. Predictably, the discussion often veered off topic. When it was on topic, it contained fundamental misunderstandings of antitrust law, Section 230, and the role of the FTC. It might have broken Berin’s brain, but the tweets were marvelous.
FTC. Asked by Barron’s for his reaction to Lina Khan’s new role as chair of the FTC, Berin registered his concern for what her confirmation says about bipartisan attitudes toward Internet regulation. Opining that we’re in a “full-blown techno panic about the Internet” which has driven an “appetite for radical change,” Berin predicted that the FTC would lean into more forceful, Carter administration-style rule-making.
Separation of Powers. Last December, we joined an amicus brief at the Supreme Court in United States v. Arthrex, a case about the statutory scheme governing administrative patent judges. We argued in our brief that the lower court wrongly tried to rewrite that scheme itself, judicially “fixing” a violation of the Appointments Clause by removing the APJs’ tenure protections. In a decision handed down this week, the Court correctly found a violation of the Appointments Clause, but (alas) did not agree with us that the lower court improperly rewrote the law from the bench. We were gratified, however, to see Justice Gorsuch adopt our position in a partial dissent. “Without some direction from Congress,” he wrote, “this problem cannot be resolved as a matter of statutory interpretation. All that remains is a policy choice.” Just so. Judicial “blue-penciling” of statutes is particularly problematic in tech policy, as it gives Congress an excuse to forgo the hard work of adjusting laws to keep up with innovation. (As Justice Gorsuch put it: “Doesn’t deciding for ourselves which policy course to pursue today allow Congress to disclaim responsibility for our legislative handiwork[?]”)
Fourth Amendment. Professor Orin Kerr is our guest on a fantastic (if we may say so) new Tech Policy Podcast. When you enter or leave the United States, is your smartphone subject to search? On the one hand, the government historically has had sweeping authority to conduct warrantless searches at the border. On the other, smartphones, with their troves of private data, deserve unique Fourth Amendment protection. Grappling with the dueling principles of “the border is special” and “smartphones are special,” the lower courts have created a tangled mess of conflicting rules. But fear not—Professor Kerr is here to help sort things out! And his guidance could not be more timely. TechFreedom recently joined an amicus brief urging the Supreme Court to review these issues, and the Court will soon announce whether it will do so. Stay tuned.