Federal Trade Commission Chair Lina Khan recently commented on the court battle over Texas legislation that would allow lawsuits to be brought against social media companies over censored content or banned accounts, and seemed to imply some support for the law.
The Supreme Court will issue a decision on the Texas law and a similar law recently passed in Florida, both of which concern state governments' ability to prevent social media companies from censoring or removing accounts.
Khan, while speaking at an event for the Federalist Society earlier this month, commented on the case, and specifically the legal arguments that the Fifth Circuit Court of Appeals used to uphold the law in Texas.
“Revisiting the Fifth Circuit opinion, I was struck by analogs 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,” Khan said.
“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,” she added.
Khan went on to say that she saw "analogs 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.”
She concluded that there are "just interesting analogs between parts of First Amendment doctrine and parts of antitrust doctrine that we’ve seen historically as well.”