Monday 19 July 2021 6:00 am

Facebook and Amazon are losing the antitrust argument but are gambling on America's broken politics to save them

Josh Williams is managing director of The Draft

In recent weeks, Amazon and then Facebook launched legal challenges against Lina Khan, the new Chair of America’s antitrust regulator, the Federal Trade Commission. Both argued that Khan should step aside in any future investigation into competitive practices and any possible pursuit of a Big Tech breakup.

Rather than offering much criticism of the content of her ideas, both level their attacks on Khan herself, suggesting she is biased against them. In rhetorical circles, the approach is called an ad hominem argument, one that targets the character of a speaker rather than the content of their case. Aristotle, in his Sophistical Refutations, considered the approach fallacious: an illogical argument.

Those subjected to such arguments have been known to delight in them. As Prime Minister, Margaret Thatcher gladly admitted she would “cheer up immensely” whenever she was the butt of one. “If they attack one personally,” she thought, “it means they have not got a single political argument left.”

Lina Khan should be cheered too. That two of America’s Tech titans should have launched an attack against her suggests they fear her arguments.

They have every reason to. Aged just thirty two, Khan has made a name for herself as one of America’s foremost thinkers on antitrust policy. She is one of the leading figures in the so-called neo-Brandeis movement of anti-monopolists, named after Louis Brandeis, the crusading lawyer who helped break up Big Oil in the early twentieth century.

These neo-Brandeists argue that America’s competition law has failed to keep pace with the changing nature of the modern economy, and that the laws of their land must now change.

The old antitrust consensus was that monopolists are only of concern if they push consumer prices upwards. Khan and her ilk argue that this view is outdated in a world in which huge corporations offer their services for free, or hold prices artificially low in order to squeeze out smaller competitors. Stifling competition and reducing consumer choice is a danger in and of itself,  the neo-Brandeists argue.

Amazon and Facebook have yet to mount much of a defence against the content of these claims. By limiting themselves to an attack on Khan, they seem destined to fail. Before Khan was appointed Chair, the agency’s ethics board would have already judged whether she is a suitable person to lead these antitrust investigations. After all, Khan was hired because of her views on Big Tech, not despite them.

This leads us to the tricky question of what, precisely, Amazon and Facebook think they can achieve by launching these complaints. The answer may well lie on Capitol Hill, where attitudes to the neo-Brandeists follow familiar party lines. Amongst Democrats, Khan is widely revered. Republicans have been less fulsome in their praise.

While the complaints filed by Amazon and Facebook might have nominally been directed at the FTC, therefore, their true audience likely resides elsewhere. Ad hominem attacks, after all, are popular politics for a reason. “Crooked Hilary,” may have held little water in a court of law, but few can doubt its political power.

This seems to be the Big Tech calculation. If antitrust reform can become a partisan issue, then America’s sclerotic politics could come to the aid of Big Tech. Lina Khan has little to fear from Facebook and Amazon’s legal complaints, but the real battle is on Capitol Hill and it’s just getting started. 

City A.M.'s opinion pages are a place for thought-provoking views and debate. These views are not necessarily shared by City A.M.

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