Courts Have A Way To Punish Twitter

Congress rarely deserves praise for acting swiftly to exercise its oversight responsibility, but the quick response by the Senate Judiciary Committee to Twitter’s outrageous election interference last week in support of Democrat nominee Joe Biden is to be commended.

Shortly after the news broke that Twitter blocked users from sharing a New York Post story critical of Biden, Committee Chairman Lindsey Graham (R-SC) scheduled a hearing (to be held tomorrow), at which time the committee will vote on subpoenaing Twitter CEO Jack Dorsey to appear before Congress later this week to explain himself.

Dorsey has a lot of questions to answer. Over the years, he repeatedly has assured government decision-makers and the general public that his popular social media platform does not discriminate against any political viewpoints. What Twitter did in response to the Post story illustrated the hollowness of those assurances.

The Judiciary Committee needs to stand up for the First Amendment and demand answers. But beyond securing the explanation the American people deserve, the Committee also needs to actively consider avenues to address the platform’s continued assaults on free speech, without itself running afoul of the Constitution.

To his credit, Dorsey himself has apologized for “straight blocking” the news story. This, coupled with his past vocal support for regulating Big Tech, provides at least a glimmer of hope that Congress can come to terms with Twitter on a solution.

Investigations by the Department of Justice and state attorneys general are important, and in some instances appropriate, but they are excruciatingly time-consuming. We have witnessed this tedious, intricate process unfold with the current governmental investigations into Google’s alleged monopoly on search and advertising, which are still not complete despite having been initiated years ago.

The American people cannot afford to wait years for the government to protect their right to free speech. The time for continued talk is long past.

Perhaps the best way to get this started would be for one of the Committee members to inquire of Dorsey if he would be willing to put his company’s commitment to preventing censorship in writing to Attorney General William Barr.

Such agreements, known in legal circles as “consent decrees,” work well in taming artificial monopolies. The government likes them because they create a legal framework for stopping abuse and disciplining further iterations of it. Often the private actors prefer them too, as they do not require admissions of past wrongdoing and can be employed for significant public relations benefit.

When executed in the right manner and with the right intentions, government consent decrees have provided the public with benefits that are significant and long-lasting.

The Reagan administration-brokered consent decree with AT&T, for example, stopped the predatory behavior of the Bell System phone monopoly in the 1980s and caused an outpouring of competition that created the likes of Sprint and MCI. This led to increased service quality and lower costs, which continue to benefit consumers even today, three decades later.

Long before the AT&T settlement, a 1940s-era government consent decree with “Big Music” ushered in America’s “Golden Age of Music.”

Instead of competing against one another, individual music publishers created ASCAP and BMI — a duopoly that today licenses 90-percent of popular music. The decrees signed with ASCAP and BMI to this day are hailed for protecting the functionality of the music industry. No less a music luminary than Bon Jovi remarked just this summer that these long-standing decrees should not be eliminated or weakened since they “protect ASCAP and BMI from using their market power against the small players in the system.”

Twitter’s ability to continue censoring competing viewpoints shares two things with the Bell System and music case studies: an artificial monopoly that could not exist without government forces, and an organizational leader who at least pays lip service to entertaining new government restraints.

As a lawyer and former member of the Judiciary Committee, I am convinced that a consent decree with Twitter to end viewpoint discrimination could work as effectively as these two earlier examples. Not only does it appear to be the quickest, easiest, and surest way to protect the First Amendment, but it can also be paired with future actions the government may decide to take against this social media giant (and perhaps others as well).

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Bob Barr
Bob Barr is a former Congressman who represented the citizens of Georgia’s 7th Congressional District in the US House of Representatives from 1995 to 2003. Bob heads Liberty Guard, a non-profit and non-partisan organization dedicated to protecting individual liberty.