Apr 14, 2025
On April 10, The Capitol Forum’s Executive Editor Teddy Downey held a conference call with Shaoul Sussman, former Associate Director for Enforcement at the Federal Trade Commission, to discuss the agency’s recent request for information (RFI) on tech censorship—an inquiry examining whether content moderation practices by major platforms could violate antitrust laws or constitute unfair methods of competition. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good morning, everyone. And welcome to our conference call with Shaul Sussman. I’m Teddy Downey, Executive Editor here at The Capitol Forum. And Shaul, everyone knows who he is. But he is the former Associate Director for Enforcement at the Federal Trade Commission’s Bureau of Competition. He has been a leader intellectually in the anti-monopoly movement and was widely viewed as an extremely influential and important member of Lena Khan’s team. So, thank you so much for doing this, Shaul. It’s great to see you.
SHAOUL SUSSMAN: Thanks, thanks, and thanks for the generous intro.
TEDDY DOWNEY: Before we jump in, just a quick mention. If you want to submit a question, type it into the questions pane of the control panel. We’ll collect questions throughout the call and address them in the Q&A session.
And you wrote this really interesting paper, Shaul – “Section 5 and the Marketplace of Ideas”. And maybe it would be helpful for our listeners if you could explain why it’s so timely, what’s going on in the current moment, and that makes it important to have this paper right now.
SHAOUL SUSSMAN: Sure. So, as you mentioned, I’m a former front office person, served during the Biden administration in the front office of the Bureau of Competition. And it’s no secret that we had quite a few cases and investigations kind of involving Big Tech or tech platforms. You know, the most notable case that is going to trial next week is the Meta trial. There was also the Amazon case that got filed. There were a couple of merger challenges.
And nowlooking from the outside on what’s going on within the FTC, I thought it would be very interesting to look at one of the priorities that were outlined recently by the Chairman Andrew Ferguson around suppression of speech by tech platforms or allegations of tech censorship and a statement that they put out around the issue of whether these types of activities might violate the FTC Act or the competition laws generally. So, I viewed that as a signal that this would be one of the central vectors of potential new enforcement for the agency moving forward during the Trump administration.
The other two I’ll just mention briefly that were publicized so far have to do with labor, which I view as more of a continuation of stuff that we did during the Biden administration. And then also some focus including an EO that came out yesterday around government regulation. So, state and federal regulation and its interaction with competition, which, again, not an area that was of tremendous focus for us during my tenure, but is something that I think antitrust practitioners generally are familiar with. The FTC has a long history of intervening and trying to enforce the laws especially in the area of state regulation.
So, this issue of tech censorship seems to be like a new issue. And what I tried to do in the paper is basically outline potential areas that the FTC will investigate and alternative or what types of theories and what types of cases they might bring.
TEDDY DOWNEY: And you’ve read through some of the RFI comments so far. Just to sort of lay it out, FTC did this RFI and Chairman Ferguson said tech firms should not be bullying their users. To me, that seems like an eminently reasonable statement. When you read through the RFI comments, who’s really saying that that is not a problem or the FTC shouldn’t do anything here? That seems like a bit of a radical response to this RFI, but I want to get your thoughts on—or I want to know who was making that argument.
SHAOUL SUSSMAN: So, I think the RFI seemed to be, you know, we launched a bunch of RFIs and initiatives during Chair Khan’s tenure that were incredibly popular and generated a lot of comments. One thing that I noticed looking at this RFI is that it had this similar broad base reaction. So, if you look at the comment section, it’s like thousands of comments that have been submitted so far.
So, it’s clearly an area of interest for a wide—and it has a wide appeal or a broad appeal. I think a lot of the pushback is not necessarily about whether tech censorship or suppression of speech is good or bad. Although, I think there are folks that say, we need more of that content moderation on platforms. But a lot of the criticism that I’ve seen coming out in the wake of the statement were criticisms of the Commission as focusing on this issue as if it’s a competition issue, as if it’s an issue where the antitrust laws, that they’re relevant, that they’re relevant under the antitrust laws, right? I think there’s a lot of discussion about content moderation generally and interaction with First Amendment rights and other types of regulation. But typically, the pushback would be, why is this a competition issue? Why is this something that the antitrust agencies should focus on?
TEDDY DOWNEY: And we hear a lot—over the years, I’ve heard a lot, oh, this isn’t an antitrust problem. Typically, that will come from your George Mason school types, your Big Tech advocates, things like that. Was it coming from those types of people? Or was it coming from a broader array of groups? Or was it sort of focused on those sort of predictable?
SHAOUL SUSSMAN: I’ve seen some of those outlets criticize the statement and raising this question about whether this is even something that the FTC should focus on, whether it is something that has to do with competition laws or the antitrust laws. And also, just my more anecdotal experience.
Like last year, last week at the ABA spring, I think there’s a lot of like a general sense of being very dismissive of this statement that is like more posturing. It’s more just signaling to the base, but largely is a nothing burger. So, I think there is, you see more folks on the defense bar and some of those outlets as well that are very dismissive of the notion that this is an area where we might see actual enforcement.
TEDDY DOWNEY: And before we get into the solution, which I think is really interesting, I want to talk a little bit about the problem. You sort of lay this out in a couple of different examples. The first one of sort of cutting a firm off is you mentioned Parler getting cut off by Amazon. I know this was a big concern for Senator Mike Lee at the time. Can you talk a little bit about that and that type of foreclosure? And then we can talk about sort of the specific like individual users after that.
SHAOUL SUSSMAN: Sure. So, broadly speaking, the idea, what generated his paper or working on it, was this trying to put myself in the Commission’s or the current front office’s seat and understand what types of activities they might go after. And I think you could broadly think about two categories of censorship or suppression or moderation. You could use whatever term you want.
But the first category is what you described there with Parler and Amazon, which is they’re like these platforms, social media platforms, other websites that have this social media function within them. And they obviously sit on a level of a cloud provider, of an infrastructure provider.
And what we saw in early 2021, in the wake of January 6, was this moment in which platform providers, digital infrastructure providers, decided to basically de-platform or stop doing business with certain social media websites or platforms that were not engaging in extensive content moderation or suppression of speech that Amazon and others viewed as problematic at the time, right?
So, there was this notion that Parler is the area where a lot of the activities surrounding January 6 like emanated from, and it was an area where a lot of the activists in this space might be able to express or coordinate their activity. And like in response to that, there was a decision by Amazon to de-platform Parler at the time. And yeah, there was a follow-on lawsuit, et cetera. Like you mentioned, this was an area of concern for a lot of conservatives at the time, including lawmakers.
TEDDY DOWNEY: And if that’s the threshold, wouldn’t Facebook have been cut off a long time ago as a place where sort of extremists organize? I mean, that sort of gets at a little bit of the inconsistency here in who Amazon is going to target. I mean, we don’t have to spend a lot of time on this. I want to get through the rest of the paper. But how do you think about sort of the inconsistency in how Amazon is sort of assessing how they’re going to cut off a social media platform?
SHAOUL SUSSMAN: Yeah, I didn’t look into that specifically, into the question of like, what are the guidelines and based on what activities they ended up making that decision. But I do agree that generally it is easier to envision service providers and cloud infrastructure providers, de-platforming smaller social media websites and social media platforms, right? I think, obviously, de-platforming or removing Facebook from the cloud ecosystem would have major implications for the bottom line of many of these providers.
TEDDY DOWNEY: Yeah. Let’s talk a little bit about de-platforming the individual user. You have a couple of examples in there. If you could just maybe kind of walk us through how that has been sort of in focus and then maybe we’ll switch to the law and the solution after that.
SHAOUL SUSSMAN: Sure. So yeah, I’ll just mention a few that were more recent and interestingly enoughwere happening on the conservative side of the aisle. So, there wereallegations against Twitter or X for de-platforming or suppressing speech of certain right-wing activists early in Trump’s tenure or just before he took office. I also mentioned the Babylon B de-platforming in 2022 by Twitter.
So, just to mention what happened more recently, there was criticism of the then Doge Co-Chair, Vivek Ramaswamy, folks like Laura Loomer, et cetera, basically alleged that they were suppressed on X, for example. But the list goes on and on. I think on both sides, you see more folks that are on the fringe are complaining about these types of activities.
And if you look at the RFI that the FTC issued, there are many, many examples of folks that arecomplaining that they’ve been either de-platformed or suppressed. Only last week, I learned, for example, that Steve Bannon-is still banned from Meta, at least according to his own statements. So, it’s not only something that we’ve seen in the past. Apparently, it’s stuff that is still going on right now.
TEDDY DOWNEY: I know certain journalists get kicked off periodically. They don’t know why. So, it’s definitely like kind of an across the aisle issue.
SHAOUL SUSSMAN: Yes, there was, I think, an example with Ken Klippenstein recently that I heard of. But yes, there’s, yes.
TEDDY DOWNEY: And so obviously, there’s a problem here, right? Big Tech is using their power to cut people off from being competitors in these markets and from their speech. I think when people think of an antitrust issue, they immediately think of the Sherman Act, Section 1 and 2. You talk about Sherman Act, Section 1 and 2, Clayton Act, Section 3 aren’t a good type of fit for this type of enforcement. If you could explain that, I think that would be a great place to start before we get into Section 5.
SHAOUL SUSSMAN: Sure, so again, I don’t know if this issue specifically would have been a—obviously, it wasn’t an area of focus for us, but I thought in this paper to outline how the agency might think through these issues moving forward. And one of the first things that they will look into is what are the tools in the toolbox, in the FTC’s arsenal, and how could they deploy them to address this issue?
So, the first question, I think even taking a step back before Sherman versus FTC Act or Clayton versus FTC Act, is just like, is this a competition issue at all, right? And what type of competition are we looking at here? And I think the way I was framing it, and the way I think about it, is that you have all these folks that are basically competing in the marketplace of ideas to get their message out there, but they also basically run a business, right? Like the Babylon Bee or Laura Loomer or Ken Klippenstein, you name it, right? They have ways in which they monetize their journalism or content that they’re creating, right? Whether it will be endorsements with advertisers, whether it’s just ad impressions, subscriptions, right? There’s a wide array of ways in which these folks generate revenue. And you could argue also compete within certain sub-markets for advertising dollars, for sponsorships, for even just general attention of consumers of news and media.
And the question that I wasthinking through is how would the FTC potentially frame interruptions or suppression of competitors within those markets? So, like you mentioned, I think that Section 1 of the Sherman Act and Section 2 of the Sherman Act are probably not the best tools to address some of these issues.
So, I’ll give just a couple of examples. Th3 Sherman Act, although it deals with group boycotts, for example, really is not an extremely effective tool to deal with this type of vertical foreclosure or suppression of operators on certain platforms, especially when there’s no agreement, right? Let’s say between Facebook and Twitter or Google and Amazon as cloud providers to remove someone from their platforms. So, in that context, it’s harder to see how you could frame these types of activities under Section 1 of the Sherman Act.
The difficulty with Section 2 really has to do with monopoly power, right? Which is the underlying or basic requirement to bring Section 2 or monopolization cases. So, while Section 2 could potentially address a wide variety of conduct, and we have a couple of older cases involving Section 2 and suppression of speech or the press, the problem here would be that it would be very hard to argue that some of these companies are monopolists. And I’ll just give the example of the cloud providers.
There are roughly three major cloud providers. They all have a significant share in the cloud computing space, but it is not clear that Amazon or Google or Microsoft are monopolists in that market. So, there will be an issue of market power and monopoly power to deal with. And I think part of the issue that you would confront as well is issues of market definition under the Sherman Act and also the Clayton Act. The limitation with Section 3 of the Clayton Act that you also brought up is that it deals primarily with goods and not with services. So, it probably is less applicable in the digital sphere.
TEDDY DOWNEY: And you obviously end up focusing on Section 5. Why does that make sense? And what can you tell us about the Supreme Court precedent there that could be helpful in this type of analysis and enforcement?
SHAOUL SUSSMAN: Yeah, so again, looking at the toolbox, it appears or it looks that Section 5 is potentially the most viable option when one considers bringing a case for suppression of speech or censorship on online platforms or on the infrastructure side. Because there is a long history of cases that the Commission brought against actors that although had a dominant or some type of economic power, were not necessarily monopolists or having or possessing market power. And also, those types of cases dealt sometimes with vertical restraints in markets in which the defendant or the corporation in which the FTC sued did not operate in.
So, I’ll just give an example of a Supreme Court case that I cite in this paper where the FTC went after Texaco and other karge operators of gas stations. And it alleged in those cases, in a series of cases, that those gas stations basically created an arrangement that limited competition in the market for car batteries, tires and other replacement parts.
And basically, the core of the argument was, or the core of the argument around Section 5, was that you could go after those practices even though Texaco or some of these gas station providers were not a monopolist in any given market. And you could also prohibit them from interfering in competition in markets in which they do not compete.
So, Texaco, for example, or these othergas station owners didn’t manufacture tires or batteries or any of those other products, but the courts basically, the Supreme Court, affirmed the FTC’s approach in those cases that said, you can intervene and you can prohibit conduct if you find that conduct suppresses or limits competition in certain markets. And that’s true regardless of whether the defendant or the corporation that is being charged with violating Section 5 is actually competing within those markets.
TEDDY DOWNEY: And you get into also in the paper unfair methods in the First Amendment. One anticipated response would be, hey, you’re violating the tech platform’s First Amendment rights. How do you see that issue playing out based on Supreme Court precedent as well? I know you mentioned Moody versus NetChoice. Would love to get your thoughts on that.
SHAOUL SUSSMAN: Yeah, so this is another criticism that you see out there which basically says the platforms, for example, Facebook, they have this First Amendment right to basically engage in content moderation. And if there’s speech that they don’t wish to promote, et cetera, they can basically exercise their First Amendment right and decide to de-platform that speaker or suppress that speech, et cetera.
And the case that is often the case that folks point to is Moody versus NetChoice that really recognize that this type of content moderation activity could be a protective First Amendment activity. So, that the content moderation of speakers on an online platform could be a First Amendment activity that deserves some protection.
But at the same time, even in Moody, the Supreme Court said but this First Amendment right or First Amendment activity is not immune, or absolutely immune, when the government seeks to take action, including very specifically enforcing the competition law, to protect speaker access on those platforms. And that principle is not really an innovation or something brand new that the Supreme Court just announced in Moody. It goes back to a series of older cases that dealt with the interaction or the interplay between the First Amendment and the antitrust laws and competition laws.
The most notable case is a case from the 1940s, the Associated Press versus the U.S. government in which the Associated Press, it was alleged that they were monopolizing a market. And one of their main defenses was, as the Associated Press, we have the First Amendment right to decide who should get our content and who we can partner with and share our news stories or like our reports with.
And not only is that a First Amendment issue, it’s also a freedom of the press concern. Because the government basically said to the Associated Press, you need to share your stories on a non-discriminatory basis with other newspapers and outlets that are not within your network.
And the Supreme Court went on this—there was actually a very long opinion. And they basically explained that a reading of the First Amendment as a shield against the enforcement of the competition laws, it would be end up in a perverse situation because in the court’s view, the First Amendment really rests on this assumption that the widest possible dissemination of information from a diverse and antagonistic sources is the essential of underlying principle of the First Amendment and that the freedom of the press or the First Amendment itself is supposed to protect that dissemination of information. So, to the extent that your activities that restrict competition also restrict the dissemination of information, you can’t really use the First Amendment as a shield for those activities.
And I won’t go into additional cases, but this principle was then reinforced in a few other Supreme Court and circuit cases that dealt specifically with newspaper advertising, et cetera. So, I think resting on those f cases, I think that it would be very hard to argue that the suppression of the dissemination of information, in conjunction with what the court said in most recently in Moody. would really preempt the FTC or even the DOJ from bringing enforcement action in the space of content moderation or platforming of websites, et cetera.
TEDDY DOWNEY: And again, if you have questions, please you can email us at editorial@thecapitolforum.com. Or you can put them in the questions pane in the GoToWebinar panel. We’ve got a few here. So, obviously, there’s some controversy around what this FTC will do. They kept the merger guidelines. They kept the HSR form. How do you see this FTC when it comes to keeping sort of a broad use of Section 5 or whether or not they will try to narrow it like prior administrations? How do you see that playing out?
SHAOUL SUSSMAN: Yeah, so I think it’s very hard to predict what will happen moving forward. But I think the guidelines, the merger form, and even the most recent decision of Chairman Ferguson to unrecuse himself from the PBM case and basically sit as an adjudicator at a case that only involves or includes allegations of violation of Section 5 of the FTC Act, to me, indicate that there is a possibility that the FTC would continue to pursue standalone Section 5 cases when appropriate.
So, I think what I’ve seen when I was at the Commission was that there was hesitancy to deploy or use Section 5 when you could really get at certain conduct using existing, I would say, more rule of reason-oriented causes of action, under the Sherman Act or the Clayton Act. But I don’t think that there is an outright hostility to the idea that you could bring a Section 5 case when appropriate and when the other tools in the agency’s arsenal do not fit the task at hand. So, it’s hard to speculate, but I wouldn’t dismiss the notion that, in investigating specifically these types of activities and this conduct, the FTC would unilaterally and preemptively disarm itself of a very useful tool.
TEDDY DOWNEY: We’ve got a bunch of questions now. Here’s another one. Would a case on these grounds be run out of BCP or BC? That’s Bureau of Consumer Protection or Bureau of Competition.
SHAOUL SUSSMAN: Yeah. So, my focus—this is the area that I feel most comfortable with. The area of my expertise was really the Bureau of Competition. But the RFI also mentioned concerns that might sound in a Consumer Protection case. It’s just hard for me to speculate what that case might look like. But I wouldn’t be surprised if this would be an effort that is run from both bureaus, since it seems to be a high priority for the Commission.
TEDDY DOWNEY: And we have another question. How does advertising on Big Tech platforms interact with censorship?
SHAOUL SUSSMAN: Yeah. I mean, that’s a complicated question, right? Because there are always questions about, okay, if you promote certain content, if there’s certain content on the platform, is that going to drive away or scare certain advertisers?
And it also cuts the other way where you might have certain advertisers that might want to promote certain ideas and activities that might seem problematic. And I think in both cases, there would be potential analysis about how this impacts competition. It wasn’t a primary focus of mine. But there are historically cases that involve advertising and dominant platforms.
So, the most famous case is Lorraine Journal, which involved the local monopolist news agency. And in that case, for example, the court said you have to platform advertisers, even if you’re not really interested in receiving their business.
So, this was not my focus, but it’s definitely something that could come into consideration in building a case in this area.
TEDDY DOWNEY: We have got some more questions here. Who will direct enforcement against specific companies? Could X eventually be on that list? Seems a little premature, potentially, but wanted to ask it anyway.
SHAOUL SUSSMAN: Yeah, I think it would be very hard to speculate. What I would suspect is that after the RFI closes that the front office or the chair’s office is going to ask for some type of summary of what they heard, and that might direct potential investigations. At least when I was at the Commission, there was this idea that you’re using the RFI process or the public comment process as a way to understand where potential enforcement should be directed. So, it’s a very useful tool in that sense.
TEDDY DOWNEY: Another question. Could someone like Bannon or Loomer or Parler sue against a tech platform that harmed them in state court under unfairness laws there?
SHAOUL SUSSMAN: Yeah, that’s a great question. And I think the answer is potentially yes. So, one of the neat things about Section 5, and also the Supreme Court precedent that governs Section 5, is that it is applicable in many states, not in all states. Also, when it comes to their own competition laws, in what’s better known as baby FTC Acts.
So, to the extent that a case like that is brought in a state that has this type of baby FTC Act, we might see follow-on activity after the Commission brings a case. We might see cases brought even earlier than that, that basically could rely on existing Supreme Court precedent interpreting Section 5 to pursue such a case. It’s hard to know what’s going to happen, but it’s a possibility.
TEDDY DOWNEY: I mean, it makes a lot of sense. We’ve got more questions. We’ve got more questions. I’m going to keep going here. We got even more. We got another one here. All right. Do you foresee the current agencies investigating tech censorship centered around January 6th related speeches/comments?
SHAOUL SUSSMAN: I mean, this is, I think, like where folks could, right, we can all guess, right? Another area I would say that you saw a lot of focus and criticism during the Biden administration from folks was COVID and folks that were anti-vax and origins of the COVID-19 pandemic. Like, there are a number of areas where you saw a lot of concern from conservative lawmakers.
So, I’m not sure where the focus would be, but there is definitely a number of potential targets. I think religious freedom is probably another, but this, I feel, is a bit more of a political question. So, it’s hard for me to speculate what would be the potential first targets or the targets.
TEDDY DOWNEY: Yeah, and as we discussed, this was a bipartisan deep platforming going on. You can get examples across the board. So, it’s a little cynical to say they’ll only look at this stuff and ignore the other ones, but we’ll have to see how it goes.
Could the agencies go so far as to look into foreign tech companies’ alleged censorship activities? So, ostensibly focus on TikTok here.
SHAOUL SUSSMAN: Yeah, I mean, there’s no prohibition for the FTC to go after the activities of foreign companies in the U.S. I highly doubt that we’re going to see a lot of intervention in what’s happening in foreign markets. Although, in this context, the only thing I would also point out is that you’re already seeing senior administration officials criticize some of the EU policies around privacy and data safety and the DMA more generally. And you saw folks like Vice President Vance really chastise the more interventionist approach of European countries to speech.
So, I don’t know what that would lead to. Like, I have to say that during my tenure in the agency, we had a very good relationship with foreign regulators and wanted to make sure that we’re operating somewhat collaboratively and in lockstep with them. But you could see part of this also taking shape in criticizing the agenda of foreign countries when it comes to regulating speech online.
TEDDY DOWNEY: Next question. Does the fact that social media platforms are partially zero-price markets affect the way FTC might analyze the market under Section 5 theory?
SHAOUL SUSSMAN: So, that’s a good question. I think the way they would primarily focus on this would be competition among content creators and platforms for revenue. Because if you think about what is the primary harm of deplatforming when you set aside individuals—like, you could deplatform a person that engages, for example, in hate speech. But where you see the real economic harm or the harm potentially to competition is when someone is deplatformed and is unable to monetize their speech or their activities online.
And I think one area that was already researched, and I pointed to in the paper, was there’s recent research that comes out of Rutgers University that really looked at what happens to—they looked at 101 online influencers and looked at what happened during these deplatforming episodes. And they found that in aggregate, after one year of the online attention towards the deplatformed personalities was reduced by 64 percent on Google and 43 percent on Wikipedia.
So, it’s hard to extrapolate from what that actually meant to the bottom lines of those influencers or media personalities. But I think that’s why I’m not sure that the fact that the platforms themselves are zero price markets would change much. Because the question is, would really focus on the harm or the inability to monetize and compete for the ad dollars among the creators on those platforms.
TEDDY DOWNEY: And you also discussed this in that gas station decision, that the platform has to have significant economic power, I think is the term that you used.
SHAOUL SUSSMAN: Yes.
TEDDY DOWNEY: And is there another side of that? Is it just the platform has significant economic power and then they foreclose what?
SHAOUL SUSSMAN: I think they’ll have to engage in, right, and it will have to be more than non-trivial foreclosure. I think it’ll be very hard to make a case around shutting down bots that are operated from a foreign country. I think you will have to still say this had a significant economic impact in a market.
And I think, although you might not have to engage in extensive market definition, you would have to broadly describe—for example, in the case of Ken Klippenstein or Steve Bannon or Laura Loomer who are—what’s the set of potential competitors? So, is it 7076 ground coffee? Who are they advertising with? Or I don’t know who else is—what is the set of potential monetization opportunities for those folks? And I think that is probably the way the agencies might think about understanding whether this is significant or insignificant.
But I would also point that the general principle that came out from these gas station cases was that this is a broad rule that certain types of companies that have this significant economic power cannot engage in these types of vertical restraints that suppress competition in this way.
TEDDY DOWNEY: And when you think about a marketplace of ideas, any one voice can be extremely important, even if it’s just one person without a lot of revenue. An idea can come from anywhere. So, it just seems that having the threshold be on significant economic power, and then you’re just foreclosing someone entirely that person’s opportunity for revenue, at least there, is zero, right? So, it seems like it makes sense, particularly for marketplace of ideas.
I’ve got another question here. Where can we find Shaoul’s paper? We will link to it on Monday, if Shaoul’s okay with that, in our weekly. But Shaoul, where can people find your paper if they want to go read it right now?
SHAOUL SUSSMAN: Yeah, so, it was part of, I think, the ABA curriculum for last week’s spring meeting. So, I think it is available online. But as Teddy mentioned, I think it will be also available on Monday. Yeah.
TEDDY DOWNEY: Okay, great. And then, could content moderation simply be a form of quality competition on the part of platform?
SHAOUL SUSSMAN: Right. So, I think there’s very much an argument, right, that companies can differentiate themselves based on the type of content that exists on those platforms, right? I think you see certain platforms that try to differentiate themselves in the market by being an area that is less volatile, maybe has less offensive rhetoric, right?
So, you have platforms like Blue Sky and others that have the reputation or try to differentiate themselves on that ground. And I think there is this question about whether you could have a general policy when it comes to speech. And when a user, within that platform, violates that policy and they get suppressed, whether that’s something that the platform should be able to engage in order to suppress that speech.
I think that ultimately that goes to this question of the significant economic power and also to the amount of harm. So, ultimately, the question is, is the platform that is engaging in that type of targeting a very significant online platform? And then I think the second prong would be whether that act that they engage of suppression resulted in or could result potentially in anti-competitive harm?
So, I think in the case of those other platforms that try to differentiate themselves, it’s harder to imagine that someone that is engaging in more animated rhetoric will decide to put a lot of their eggs in that basket. But there are other platforms that are just so central to our daily activity that I think denying access to those platforms might actually present a broader issue.
TEDDY DOWNEY: And then last question here. I’m not sure I understand this. I’m just going to read what they wrote. Do you consider the current investigation of Omnicom IPG merger to be an example of censorship in the area of mergers? I’m not exactly sure I understand the question.
SHAOUL SUSSMAN: Yeah, it’s hard to fully understand what the question is trying to get at. But it is true that that seems to be a merger that involves major advertisers. And maybe one of the areas that they might look into is who they advertise with, what their policies around content, et cetera. But this is me engaging in pure speculation.
TEDDY DOWNEY: And I’ve got a last question. I mean, is the remedy just re-platform the user? Or is there additional remedies that you could see from this?
SHAOUL SUSSMAN: So, yeah. That’s, I think, where things get really interesting. And I think it will be very hard to speculate. Because some of what we’ve heard are total bans and de-platforming. And there you could imagine that the injunctive relief that the FTC would seek is some type of reinstatement or a private plaintiff, for example.
But then there’s this other thing that you see complaints about, which is suppression or shadow banning, et cetera. And that is a question that really goes to the heart of how content moderation and curation happens on these platforms. So, I think this might go more broadly to your question than Steve Bannon, yes or no, on the platform, Laura Loomer, yes, no, Kent Klippenstein, yes, no. It could be that the case would really focus on the types of algorithms and curation decisions that are happening on the level of the platform.
So, for example, is the algorithm demonetizing automatically certain types of speech? Is the algorithm suppressing type of speech? Like, are you getting less impressions or less views? Because you’re associated with a certain worldview, et cetera.
And I think it’s hard to speculate where the FTC or how they will focus on these issues. But at least for me, from my personal perspective, if they do end up investigating in the space and thinking about developing a case, I think those would probably be the more interesting cases which are going to the app architecture and the way in which platforms make decisions, business decisions, on a broader scale. Not just that some content moderator said, hey, this looks really problematic. Let’s send an email internally and see if we can ban this person. But when there is an actual product design that is basically skewing speech in a certain direction, I think that would be a very interesting thing to look into. And I would be very curious to see what the agency comes up with in that space.
TEDDY DOWNEY: What about just saying, hey, that’s too complicated. You engage in systemic skewing of speech in this way in violation of Section 5. And you just need to be broken up because this ability to cut people off is problematic, and we can’t fix it with this behavioral type of remedy. Is that too out there of a concept?
SHAOUL SUSSMAN: Yeah. So, historically, Section 5 cases did not involve breakup remedies. I don’t have one that I can think of just on the fly. But I would not try to bet one way or another on what the Commission would actually—it clearly seems to be an area of focus for them. So, I don’t know what like the ultimate remedy they’re going to pursue would look like.
TEDDY DOWNEY: Yeah, because I think this is a really interesting thing because it doesn’t seem like there’s agreement on the conservative side. If you talk to Roger Alford, he’s given a series of talks about, hey, the problem really is the concentrated power and ability to cut someone off from speech unilaterally like this, sort of lack of competition on the platform level. And you don’t really get into that with just tinkering around with the algorithm. Obviously, you could resolve potentially a lot of this there. But versus some other people on the conservative side, it seemed to be more like, hey, we’re sort of okay with this as long as you’re promoting conservative speech. Obviously, that is a different sort of way to think about the problem.
SHAOUL SUSSMAN: Yeah, I think for me that felt a bit too speculative in the sense of where they would ultimately go with this. The purpose of the paper and the reason to have this conversation is like, this is definitely an area of interest for them. Like, they did another event last week in conjunction with the DOJ that focused on this area, and it really is to highlight the potential options that they have.
Where they’re ultimately going to end up with remedies or settlements, et cetera, I think it will be very hard to speculate what’s the ultimate agenda there. And I think, Teddy, you’re right, there seems to be a real split among conservative thinking around are certain platforms are too powerful and need to be broken up versus do we ensure that they promote the type of content that we sympathize with more, I guess?
TEDDY DOWNEY: Yeah, well, truly fascinating paper. Also, probably the most readable and digestible legal memo I have ever read. So, I can’t thank you enough for making this concise and compelling and readable. I encourage everyone to take a look. I think it’s going to have a big impact here. And Shaoul, I’m super excited to see what you do next as well. And thank you so much for doing this. It was an amazing conversation.
SHAOUL SUSSMAN: Thanks, Teddy. It was great.
TEDDY DOWNEY: And this concludes the call. Thanks everyone for joining. Thank you. Bye-bye.
