Antitrust bill targeting Big Tech is great, but can we talk about Ted Cruz's favorite part of it?

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Big Tech is freaking out over a Senate anti-trust bill that would block the biggest firms—especially Google, Amazon, Apple, and Facebook—from using their power to give themselves major advantages over other companies, to the detriment of consumers as well. The American Innovation and Choice Online Act was introduced by Democratic Sen. Amy Klobuchar and Republican Sen. Chuck Grassley and received bipartisan support in a January committee vote.

In a Monday speech in Kentucky, Klobuchar detailed the opposition from tech companies. “They have spent $70 million against us in this effort and that doesn’t even count the advertising, that’s just the lobbying from last year,” she said. “And there’s 2,700 lobbyists from those four companies now roaming the halls of Congress.”

When an industry is that upset about legislation, it’s often a sign that it’s going to be effective at cracking down on that industry’s favored abuses, and that’s absolutely the case with this bill. But some advocates for reining in the power of these massive tech companies say there’s one scary provision in the current bill that needs to come out.

The overarching intent of the bill is good: to prevent a company that controls a marketplace from giving itself advantages over competitors who have to use that marketplace. Amazon shouldn’t be able to put its own products at the top of the search results every time. Amazon also shouldn’t be able to force sellers to use its own fulfillment system to qualify for Prime, if the sellers can provide the needed fulfillment standards independently. Google shouldn’t respond to every video search with a YouTube link. Apple shouldn’t privilege its own apps over other equally relevant ones.

Again: That’s good. But the advocacy organization Free Press has warned that one provision in the bill could make it more difficult for companies to deplatform hate speech, through language that “isn’t merely a ban on big platforms giving their own products an advantage over those of companies that want to compete with the likes of Google, Facebook and Apple,” Free Press Action’s Carmen Scurato said in a statement at the time the bill was in committee.

“This provision could require platforms to host hate speech and other harmful content targeting Black and Brown people, the LGBTQIA+ community, women, immigrants, Indigenous people and other targeted populations. It opens the door to arguments that covered platforms are unlawfully discriminating against hate-and-disinformation purveyors by taking them down. State AGs and future FTC officials charged with enforcing this bill could easily but falsely paint apps like Parler or businesses like Infowars as ‘similarly situated’ to other apps and sites that remain available on the covered platforms,” she continued.

The specific concern Free Press cites is that state attorneys general—like the ones who contributed money to the January 6 planning—could sue, “arguing that those terms of service themselves discriminate against certain viewpoints, claiming that what tech companies rightly define as hate speech, incitements to violence, or vaccine disinformation is really just competing political or health information that must stay up,” according to Scurato.

Other groups in favor of anti-trust legislation in tech, like Accountable Tech, are less concerned, because the anti-discrimination provision only applies to businesses, not individuals. (Though that’s a distinction that can be blurry when you’re talking about, say, Alex Jones the individual and Infowars the business.) Citing worries about losing Republican support for the bill, someone from a group that supports it told Protocol in February, “This is a concern about lawsuits that aren’t going to actually be successful.”

But lawsuits themselves can be deterrents from enforcing rules. If Facebook knows that the attorney general of Texas or Mississippi (or whichever one is looking to make a splash and smooth the way up to senator or governor) is going to sue if the company deplatforms a purveyor of hate speech, it’s probably going to be less likely to deplatform them to begin with. Sen. Ted Cruz voted for the bill as a whole in committee—after he tried to expand this language to allow for private lawsuits, saying, “I am more than happy to unleash the trial lawyers.”

This came after years of Cruz attacking social media platforms repeatedly for limiting the platform they give to conspiracy theorists like Alex Jones and COVID promoters like Dennis Prager. His angle on any bill having to do with big tech is going to be a serious problem—and his support is a red flag.

Sen. Alex Padilla—who it should be said is from California, where several of the most affected companies are headquartered—raised the concern during committee that, “This provision can be a gift to bad actors seeking to prevent platforms from blocking business users that peddle hate speech or … election disinformation.”

Anti-trust powers should be a more frequently used tool against corporate abuses, and big tech is absolutely ripe for it. But we also don’t want an anti-trust bill that gives Republican attorneys general or regulators a way to protect hate speech and disinformation. In the current Senate there may be a real tension between those two things. But it at least needs to be part of the conversation.

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