With this new four-part blog series, Public Knowledge unveils a vision for free expression and content moderation in the contemporary media landscape.
In Part I: Centering Public Interest Values, we provide a brief historical perspective on platform content moderation, review the values that Public Knowledge brings to this topic, and discuss the importance of rooting content moderation approaches and policies in user rights. We also consider a theory that user rights should include the right to hold platforms liable if they don’t enforce the community standards and/or product features they contract for in their terms of service.
Here in Part II: Empowering User Choice, we discuss the structure of digital platform markets and the necessity of policy choices that create healthy competition and user choice. We also center digital platforms in the broader ecosystem of news and information, and discuss how policy interventions may offset the impact of poor platform content moderation on the information environment by promoting other, diverse sources of credible news.
In Part III: Safeguarding Users, we discuss an additional array of policy interventions designed to bring about content moderation that respects the imperative for free expression and is in the public interest. These include a product liability theory, limiting data collection and exploitation, and requirements for algorithmic transparency and choice.
In Part IV: Tackling AI and Executing the Vision, we discuss the implications of the new “elephant in the content moderation room,“ generative artificial intelligence, for free expression and content moderation. We also discuss how our recommended policy interventions can be made durable and sustainable, while fostering entrepreneurship and innovation, through a dedicated digital regulator.
Readers looking for more information about content moderation can visit our issue page, learn more about the harms associated with algorithmic curation of content, and explore why multiple policy solutions will be required to ensure free expression and effective content moderation.
Securing User Choice Through Antitrust Enforcement and Competition Policy
The best mechanism to ensure platforms respect users’ rights and honor their contracts is through healthy marketplace competition. In a world with healthy competition, platforms would only be able to optimize profits if their content moderation reflected the expressive and associational preferences of their users. With an estimated audience of 5 billion people, the social media marketplace should boast lots and lots of providers competing for our attention. Yet, the structure of today’s digital markets means Big Tech platforms face little to no competition. We believe the concentration of private power over public discourse allows platforms to optimize content moderation for profit instead of user preference, and is itself a threat to free speech.
For these reasons, we need to anchor our next discussion of content moderation policy in an understanding of digital market structure.
Digital Markets Are Highly Conducive to Monopolization
The markets in which digital platforms operate (e.g., search, social media, e-commerce, and user-generated entertainment) are all highly concentrated, meaning a select few companies have a huge influence on how consumers create, connect, and communicate. Following years of serial acquisitions of both market competitors and disruptors, extreme digital platform consolidation has profoundly influenced the direction and dynamics of content moderation. For example, Meta (formerly Facebook) purchased Instagram in 2012 and WhatsApp in 2014, ensuring billions of users stay entrenched in Meta’s product ecosystem. Now nearly 4 billion people – half of the world’s population – use at least one of the company’s core products, and many content moderation policies have been harmonized across them. Meta’s content moderation policies therefore have a far-reaching impact on how consumers receive and disseminate information online. The same dynamics – compounded by what has been determined to be illegal, specifically monopolistic business practices by Google and its parent company, Alphabet – are true in search. The characteristics of digital markets themselves – most notably high capital investment, the accretive effects of data, network effects, and a tendency toward tipping (an economic dynamic in which one player owns or dominates a market) – favor consolidation and monopolization. Social media networks are particularly “sticky,” making it difficult for consumers to abandon their established networks or switch services because their social circles are entrenched in a specific platform.
We are seeing this play out in real time as we write this post. After Elon Musk’s acquisition of Twitter, he fired most of the platform’s trust and safety team and reversed many content moderation policies, allowing hate speech and misinformation to flourish. But as anyone who has tried to switch from Twitter (now known as “X”) to Bluesky or Mastodon knows, rebuilding your feeds and follower base can feel like an impossible feat. Meanwhile, Meta’s Threads challenged X’s dominance by allowing users to import their followers from Instagram, rapidly gaining 100 million users in just five days. It demonstrated that the ability to transfer one’s social network is crucial for a platform’s adoption and success. (It took the extraordinary disruption of the 2024 national elections to provide an inflection point and allow Bluesky to overtake Threads in terms of user count.)
A Briefer on Antitrust Law and Why It Matters for Free Expression and Content Moderation
Throughout U.S. history, antitrust laws have played a crucial role in ensuring healthy competition in key sectors such as railroads, oil production, and automotive manufacturing. In more recent decades, the telecommunications and technology sectors have become focal points of antitrust scrutiny. This includes the breakup of AT&T into seven regional companies in the 1980s. Later, in the late 1990s and early 2000s, the antitrust lawsuits against Microsoft centered on the company’s alleged abuse of its monopoly in the PC operating system market. The main U.S. case, filed in 1998, focused on Microsoft bundling the Internet Explorer browser with its Windows operating system, which the government claimed stifled competition in the web browser market. After a tumultuous legal process, Microsoft settled in 2001, agreeing to share its application programming interfaces or APIs and allow computer manufacturers more freedom in pre-installing non-Microsoft software. Both the AT&T and Microsoft cases resulted in new waves of innovation and competition and allowed the entry of new players, some of which grew to be today’s tech giants.
Fast forward two decades, and there is a renewed focus on antitrust enforcement against Big Tech. It has been a challenge, however, for antitrust enforcers to mitigate digital platform monopolization. Thanks to years of narrowing jurisprudence, antitrust regulators use the consumer welfare standard, which determines whether business conduct harms consumers in the relevant market – and that has been interpreted to mean unreasonably high prices charged for services. Since many digital platform services are free to users, proving consumers are harmed by self-preferencing and other monopolistic behavior is much more complex. That is why the Chair of the Federal Trade Commission, Lina Khan, is advocating for a neo-Brandeisian framework, where the number of firms and size of the largest player are the most important factors in assessing anticompetitive behavior. In other words, a single dominant company is always a threat to competition, and the only true remedy is more competitors.
The decision against Google in the Department of Justice’s search antitrust case, which found that Google violated antitrust laws by illegally maintaining its monopoly over search and search text advertising, could significantly enhance free expression by encouraging fairer competition in the search engine market. It is undeniable that Google made the vast and infinitely expanding web more navigable, presenting search engine results pages with the exact information you were seeking – for free! The issue here is not that Google has the most-used search engine in the world, facilitating nearly 95 percent of searches on smartphones. The issue is, as the court found, that Google’s practice of using contracts and payments to make its search engine the default option for Android and Apple phones violates antitrust laws. What’s more, because of its dominant position, Google had less incentive to maintain high-quality search results, instead prioritizing advertisers and paid placements. It also used a variety of practices to keep users on its search engine results page instead of clicking through to online publishers for information. If Google faced real competition, it would be incentivized to present a high-quality search service or lose out to alternatives – like DuckDuckGo, which does not use targeted advertising. Increased competition in search text advertising would also give advertisers and publishers more choices, leading to a richer diversity of information and enhancing opportunities for free expression.
Public Knowledge strongly supports both the Federal Trade Commission and DOJ’s antitrust enforcement efforts. This includes DOJ’s final proposed remedy calling for both structural and behavioral mandates in its ad tech case against Google, and the 2020 FTC lawsuit against Meta alleging abuse of monopoly power and the illegal acquisition of Instagram and WhatsApp (which may also call for divestiture of these platforms). We also support the efforts of the FTC and the DOJ to curb Big Tech’s consolidation by blocking new mergers and acquisitions and potentially breaking up existing industry giants.
Legislative Solutions To Tackle the Anticompetitive Digital Market
Adapting how regulators and courts tackle antitrust enforcement in Big Tech will take time, as litigation can drag on for years while technology platforms continue to rapidly innovate and evolve. Therefore, we also advocate for legislative solutions to proactively create competition and choice in digital markets as a means of furthering free expression.
One way to open up competition among digital platforms is through mandatory data portability and interoperability – that is, requiring platforms to facilitate the transfer and utilization of data and to allow communication across different systems or applications. Interoperability would reduce the impact of network effects and remove one of the highest barriers to entry for new platforms. Data portability and interoperability will not be standard among digital platforms unless they are mandated by law and then enforced by the FTC. (Yes, in great irony to the free market absolutists, regulation is needed to have a competitive social media market.) Just as consumers can send and receive emails from Gmail to Outlook and call from one phone service provider to another, social network users should be able to send private messages and see public images from any platform and on whatever platform they like best – including smaller entrants and community-run services that can connect to the dominant platforms.
Some bipartisan bills intended to make current anticompetitive practices perpetuated by Big Tech gatekeepers illegal include the American Innovation and Choice Online Act (AICOA) and the Augmenting Compatibility and Competition by Enabling Service Switching Act (the ACCESS Act). We support AICOA because it prevents covered platforms from “self-preferencing” at the expense of competitors and prohibits those platforms from using non-public data to unfairly advantage their products, thus indirectly benefiting free expression. And we support the ACCESS Act because it promotes interoperability among large platforms without dictating their specific functionalities, thus enhancing competition while avoiding user isolation. Supporters of the ACCESS Act and interoperability broadly might also consider promoting the development of newer decentralized protocols, like NOSTR and Holochain, on which digital platforms might be built. Like HTTP and the World Wide Web in the 1980s and 1990s, new decentralized protocols may provide the technical capability that policies like the ACCESS Act envision, without specific technical mandates in statute.
In the meantime, we believe Congress should pass sector-specific legislation, like The Ending Platform Monopolies Act, which would give both the FTC and DOJ the ability to impose structural separations and line-of-business restrictions on a covered platform to restore competition to digital markets. Likewise, we believe that Congress should create a digital regulatory agency that would be able to craft rules of enforcement around these legislative mandates and develop a regulatory framework for the industry. We discuss this more in Part IV: Tackling AI and Executing the Vision.
Addressing the Broader Information Ecosystem
As they relate to information distribution and free expression, digital platform markets live within a broader ecosystem of news and information. That means we can also use policy to offset the impact of poor platform content moderation on the information environment by promoting other, diverse sources of credible news. The problem is, local news – at least in its traditional forms – is dying.
In the last 20 years, the number of local news outlets in the United States has shrunk by a third, down from 9,000 to around 6,000 today – and is still decreasing. Despite legacy news advocates’ attempts to pin this decline completely on Google and Facebook, the reality is more complex and the problem started well before those two platforms rose to scale.
Newspapers have decried the entry of new technology players for decades. For example, the Newspaper Preservation Act of 1970 authorized the formation of joint operating agreements among competing newspaper operations within the same media market area, in part to address publishers’ claims that they needed to be able to compete more effectively for advertising revenue with radio and television. The news crisis intensified in the 1990s as consumers started migrating to the internet, which spawned new information channels that catered (and advertised) to them, ending newspapers’ own monopoly on local retail ads and highly profitable classified ads. Craigslist, a classified advertisements website that went live on the internet in 1996, typified the internet’s threat to the news industry. By 2013, the Wall Street Journal noted that “Craigslist obliterated the longtime business model of local journalism that relied on classified-ad revenues, which have fallen by 80 percent.” Newspapers themselves also sought to capitalize on the revenue growth opportunities in the online classified advertising space; for example, Classified Ventures, LLC was a joint venture among six major newspaper publishers specifically created to start Cars.com and Apartments.com. But such efforts weren’t sufficient to offset the declines in their core ad business.
Meanwhile, in their race to reach online viewers, many news organizations offered their core offering – news – for free, perhaps forever changing Americans’ attitudes about the value of news. Now, most Americans get at least some of their news from online sources.
In another misplaced bid to “save” the industry, many newspapers ramped up consolidation, hoping to better compete against the internet, offset declining revenues, and reduce costs. This trend accelerated as private equity and hedge funds gobbled up newspapers, pursuing profit maximization under the guise of “synergy.” The result: smaller newspapers were pushed out, newsrooms were decimated, and many reporting jobs were reinvented as “freelance” positions offering a fraction of their previous salaries and benefits. Now, with over half of daily newspapers owned by hedge-fund-run news conglomerates, the quality and quantity of local news reporting is tanking. When independent local journalism declines, so does trust in institutions and democratic participation.
The downward spiral in local news – especially newspapers, which still create the majority of original reporting – has spurred a number of policy solutions. Many of these focus on extracting revenue back from Google and Facebook, which do dominate the online ad market today. In the last decade, we have seen countries like Spain, Australia, and Canada use different legal theories to try to implement “link taxes,” which require large platforms to pay a fee to news publishers for posting links to articles on news sites. In every case, the platforms have responded by removing links to news – or threatening to do so – to the enormous detriment of news organizations. The proposed U.S. version of a link tax, the Journalism Competition and Preservation Act, creates an antitrust exemption for publishers and would require that digital platforms pay for and carry content from any qualifying journalism provider.
In our view, the JCPA would threaten free and open access to information; undermine content moderation and increase harmful material online; infringe on platforms’ own First Amendment rights; and risk expanding copyright law beyond traditional bounds. The bill also rewards the giant consolidating media corporations that helped create the problem in the first place; sidelines smaller news outlets; and does nothing to ensure funds raised support actual journalists directly. Additionally, by matching tech might with media might, the bill will harm competition and entrench existing power structures rather than foster a healthier journalism ecosystem critical to supporting local news.
Whatever their legal theory or structure, link tax proposals are rooted in an inappropriate model: the idea that the current platforms unjustly enrich their own bottom lines by capturing advertising that belongs to news organizations. Instead, we favor a public interest obligations approach to news. As Public Knowledge has explained, “the public interest obligations approach does not turn on whether or not dominant platforms engage in bad behavior or receive an unfair benefit. Rather, the public interest obligations approach recognizes that we have a classic market failure.” This approach still allows policymakers to place obligations on those most capable within the current market (dominant platforms) to correct the market failure by supporting a valuable public good (local news production). For example, our Superfund for the Internet policy proposal establishes a federal “trust fund” administered by an independent body, with contributions from applicable large online platforms in the form of a federal user fee calculated based on the platform’s number of active monthly users. The funds would then be allocated to qualified news organizations that would apply strong fact-checking principles to platform content, ensuring social media platforms that distribute such news content are contributing to a healthy information ecosystem. A federal tax on platforms for the purpose of funding news would work in a similar way.
We also support solutions that spur public funding mechanisms and favor new journalism business models. This includes legislative initiatives like the Community News and Small Business Support Act, which aims to provide small business tax credits to help pay for advertising in local news outlets. It also gives payroll tax credits to local newspapers for employing local journalists.
Antitrust enforcement and competition policy may also have a role in the news industry itself. Twenty years ago, as we’ve noted, a flurry of mergers and acquisitions of small newspapers made it so the 25 largest news conglomerates owned 70 percent of America’s daily newspapers. This consolidation in the news industry, especially by financially motivated owners (some of whom have come under criticism of late for disallowing presidential endorsements by their editorial boards), has caused documented harm to citizens and workers as well as to media localism and diversity. At a time when there is already an effort to expand the application of antitrust law beyond pricing harm and the consumer welfare standard, we can apply or adapt it to this critical democratic need.
There is ample precedent for the government to use policy to further diversity and locality of views. At the start of 2024, the Federal Communications Commission shared its efforts to bolster local news by giving preference to broadcasters that commit to local content in their license applications and also enhance the availability of region-specific news. This is on top of rules to protect local news and diversity of voices, like limiting the number of broadcast licenses (radio or television) an entity could control in the local market; prohibiting newspaper/broadcast cross-ownership in the same market; and prohibiting cross-ownership of television licenses and cable systems in the same market. Similar pro-competitive rules could extend to localism in the news industry, such as amending the plant-closing laws to require that any chain planning to close a newspaper must give the community 90 days’ notice so they might organize a bid to buy the paper. Similarly, any acquisition by hedge funds should be paused by the government to allow for alternative bid offers from local businesses or nonprofit organizations. Some of these ideas are already being pursued at the state level.
Beyond preventing further news industry consolidation, Public Knowledge supports efforts to de-consolidate, or “replant” newspapers back into communities, with the government providing financial incentives or tax benefits to local nonprofit organizations or mission-oriented businesses that buy newspapers, or hedge funds that sell them. Incentives may include loan guarantees for local organizations that acquire a newspaper, or providing payroll tax credits. Going further, we can incentivize owners of news conglomerates to sell off a newspaper to a local nonprofit by eliminating capital gains taxes in the transaction.
Learn more about safeguarding users in Part III.