Speaking at an event hosted by the Federalist Society earlier this month, FTC chairwoman Lina Khan hinted that Texas may be on the right track with its law challenging social media censorship, which is currently working its way through the courts.
The Supreme Court is set to deliberate on the Texas law, which declares social media companies to be common carriers, and enables users to sue for the reinstatement of banned accounts and censored content in court. Under the law, the Texas attorney general may also sue tech companies on behalf of groups of users.
In her comments at the Federalist Society event, the Biden-appointed chairwoman of the FTC hinted that she held some common ground with the legal arguments behind the Fifth Circuit Court of Appeals’ decision to uphold the Texas law.
“Revisiting the the fifth circuit opinion, I was struck by analogues that we see between overbreadth doctrine and what that’s designed to do from a First Amendment perspective right, where it basically says that there are certain forms of restraints that are so intrinsically problematic because they’re having a chilling effect,” said Khan.
“And so you don’t need to have an actual exercise of government power. The mere possibility of it, through certain types of statutory schemes, is intrinsically problematic because it’s chilling speech.”
“I think there are analogues to that in antitrust and anti-monopoly, where it was recognized that certain types of concentrations of power, certain types of mergers, created structures that could intrinsically create certain types of chilling effects on pro-competitive behaviors, such that you don’t have to show endless types of… effects because the structure itself would create risk. And so I think there is really just interesting analogues between parts of First Amendment doctrine and parts of antitrust doctrine that we’ve seen historically as well.”
Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.