Attorney General Jeff Sessions plans to meet with state attorneys general later this month to discuss whether tech companies may be “intentionally stifling the free exchange of ideas,” the Justice Department said Wednesday in a statement.
The announcement comes a week after the White House said it would explore regulating Google — and minutes after senior executives from Facebook and Twitter finished testifying before a Senate panel on the companies’ efforts to stem the tide of misinformation on the platforms.
Agency spokesman Devin O’Malley said the meeting also will consider whether tech platforms “may have harmed competition” with their actions, a hint that the Justice Department may be weighing antitrust action against the firms.
The meeting, which had been in the works since before Wednesday’s hearing, is expected to take place in Washington on Sept. 25 — and at least three state attorneys general have agreed to participate, according to a person familiar with the matter who was not authorized to speak on the record. The person declined to say which states were involved. But the group does not include New York, whose attorney general, Barbara Underwood, will not be attending, according to her spokeswoman, Amy Spitalnick.
“We haven’t seen an invite,” said Spitalnick.
Representatives for several other state attorneys general did not respond.
DOJ’s announcement significantly heightens the stakes for the tech companies in Washington, where policymakers have widely criticized the digital platforms but have refrained from passing legislation or launching probes into their conduct.
“Pressing Google, Facebook and Twitter on political bias is mostly noise at this point,” said Paul Gallant, an industry analyst at the market research firm Cowen & Co. “But if those discussions are implicitly backed by antitrust threats, that’s an escalation that will set off alarm bells in the companies.”
It also raises fresh questions about whether President Donald Trump’s own rhetoric may undercut the Justice Department’s efforts. In recent days, Trump has said the companies may find themselves in a “very antitrust situation,” accusing Google and Facebook of “suppressing” conservative viewpoints.
But the White House is not supposed to interfere with the law enforcement activities of independent agencies. For example, when the Justice Department went to court this year to block AT&T’s proposed merger with Time Warner, the telecom giant sought to compel White House documents that could have showed whether Trump may have inappropriately directed antitrust regulators to stymie the deal.
Twitter and Google declined to comment on the Justice Department announcement. Facebook didn’t immediately respond to a request for comment.
Pressure has been mounting on antitrust officials to scrutinize the tech industry. Last week, Sen. Orrin Hatch, R-Utah, called on the Federal Trade Commission to reopen a probe into Google and its data practices, as well as its decisions to ban certain types of advertisers from its platform.
But antitrust experts say it would be difficult to turn generalized allegations of political bias into a compelling case. When it comes to Google, court rulings have held that search engine algorithms are constitutionally protected under the First Amendment. And in order to prove an antitrust violation, the government would need to show that a tech company competes with conservatives in a particular market, such as the market for news.
“So long as Google doesn’t vertically integrate into news, the conduct is not discriminatory” from an economic perspective, said Hal Singer, an economist at George Washington University’s Institute of Public Policy.
Still, legal experts said the Justice Department announcement “clearly suggests” a willingness to intervene on behalf of conservative critics who say they are victims of discrimination by the companies.
Sessions regularly faces withering public criticism from Trump, but the attorney general has also been one of the president’s most loyal supporters, particularly on policy matters such as immigration and policing. Sessions’ statement Wednesday on social media firms marks another instance in which he has echoed points raised earlier by the president.
“The irony here is that conservative media has long opposed governmental measures to enforce equal treatment of content by distribution platforms,” said Marc Martin, a technology lawyer at the firm Perkins Coie. One prominent example, said Martin, may be found in the Fairness Doctrine — a 1949 policy set by the Federal Communications Commission that required TV and radio broadcasters to air opposing viewpoints on a given issue. That policy is no longer enforced.
Others called the Justice Department’s move unusual and a potential threat to the First Amendment rights of social media platforms, who may alter their behavior because of the implicit threat of action by federal and state investigators.
“It’s not clear what they’re investigating. If they’re investigating companies without a clear reason, it’s possible that the investigations themselves will stifle free speech,” said Alex Abdo, a senior staff attorney at the Knight First Amendment Institute at Columbia University. “DOJ without some clear implication of wrongdoing, should not be meddling.”
Originally published by The Washington Post.