Banana Republicanism: Khanservatism Will Not Address Censorship Concerns

The selection of Senator J.D. Vance (R-OH) as former President Trump's vice-presidential candidate has brought new life to the ongoing debate on the right about the role of antitrust law, especially concerning "Big Tech." Specifically, Senator Vance has publicly praised the antitrust policies of FTC Chair Lina Khan and expressly called for the breakup of large technology firms like Google, which he has claimed enjoys a monopolistic control of information and is a threat to democracy. For Senator Vance and other "Khanservatives," antitrust law is thus increasingly seen as a weapon that can be used by the right to address allegations of Big Tech censoring conservative speech online, as well as generally fight back against companies they believe embody a liberal progressive worldview hostile to their values. However, using antitrust for this purpose is not just wrong-headed, but risks politicizing a critical area of jurisprudence that has been and should continue to be based upon the rule of law.

To begin, none of the ongoing antitrust cases against Big Tech-investigations that all began, notably, during the Trump administration-are meaningfully related to concerns surrounding the censorship of conservative speech. The FTC's suit against Meta is focused on the acquisitions of Instagram and WhatsApp, while its case against Amazon is centered around the idea that somehow the company is raising prices and that Prime is a bad thing. Similarly, the DOJ's complaint against Apple takes aim at its tried and true business model of protecting privacy and security by attempting to force a more open approach-along with those green bubbles, of course. Finally, the DOJ's Google search and ad tech cases do not even deal with the issue of self-preferencing online, but instead, Android defaults and Google's ad tech tools.

There is a reason why censorship allegations don't constitute a viable antitrust claim: a platform refusing to deal with a content provider does not run afoul of the antitrust laws unless there is some exclusion of a competitor, which is not the case when it comes to a platform simply unilaterally removing content it doesn't compete with. As such, behavioral antitrust remedies, which can include requiring firms to provide third parties with access to their products or mandating interoperability, will not give conservatives a way around Section 230 by using antitrust to force platforms to allow conservative content they might otherwise take down. Moreover, even if antitrust law or related legislation (e.g., the Access Act S.2521) were used to effectively force platforms to deal with conservative content or mandate interoperability with conservative platforms, doing so would risk social media platforms being unsafe for children as well as promoting extremist content and disinformation from rivals like China, things that most conservatives would surely see as making matters worse, not better.

Similarly, structural antitrust remedies are unlikely to deal with alleged censorship issues meaningfully. For example, breaking up a platform like Google, Meta, or Twitter into several companies overlooks that such remedies have historically been done on a geographic basis (e.g., Standard Oil and AT&T)-something rather inapposite in the context of digital markets. But even if such a hypothetical breakup were practically possible, the dream that some conservatives have that this would open the way for like-minded platforms to gain market share is fanciful: The size of the large platforms is driven by economies of scale and, in particular, network effects. As such, breaking up Facebook, for example, into two companies-Facebook and "Facespace"-would only last so long before users default to one platform, as bifurcated networks that only some of their friends and contacts use are suboptimal.

In addition to this type of "horizontal" breakup, some conservatives including Senator Vance, have taken aim at vertical integration by Big Tech, such as Google search and YouTube being under the same company. But here again, a solution preventing this type of vertical integration-e.g., forcing Google to divest YouTube-would not only come at the expense of efficiency and economies of scope, but would similarly do little in practice to address conservatives' concerns about censorship. That is, if conservatives are right that the technology space is a bastion of liberal-progressive values-contrary to the claims of many on the left, who allege that some platforms give too much voice to conservatives-divesting YouTube from Google, for example, is much more likely to create two liberal or progressive companies than it is to create one conservative and one liberal.

To be sure, even if the alleged censorship of conservatives does not constitute anticompetitive conduct and would go unaddressed by antitrust remedies, many Khanservatives would seem to still strongly consider weaponizing antitrust against Big Tech on political grounds. In other words, for Khanservatives, antitrust can still constitute a tool to punish Big Tech for allegedly stifling conservative voices, much the same way as raising their taxes might. Viewed in this light, the Khanservative agenda would be less about using antitrust law to create more competition to allow conservative content to flourish online, or even fighting alleged censorship through the indirect effects of an antitrust remedy. Their agenda would more simply use antitrust to make tech platforms rethink their content moderation practices out of fear of retaliation or, if they continue to operate as before, as a means of retaliation against those companies.

But this line of reasoning in and of itself should give conservatives pause: this sort of approach to antitrust enforcement does not view antitrust as a rule of law, as it has long been understood to be, but at best, a form of regulation akin to the FCC, which applies a broad public interest standard to "improve" the status quo. At worst, it is an abuse of the rule of law for narrow political purposes that one would expect in a banana republic. For this reason, en vogue, though it may seem to be, Khanservatism is not the solution for conservatives seeking to address the claimed censorship of their speech by large technology companies, but a dangerous manipulation of antitrust principles against the very firms that have in reality helped-not stifled-the creation of a more ideologically diverse media landscape over the past several decades.