Bulletins

Alito seems cool now with the godfather of anti-tech antitrust

Three of the Supreme Court's conservatives sound like they've been reading Lina Khan ... and are itching for a fight.

The front façade of the Supreme Court of the United States in Washington, DC.

Some conservatives on the Supreme Court may be interested in going after tech using antitrust.

Photo: Ian Hutchinson/Unsplash

Justice Samuel Alito earlier this week signaled that some Supreme Court conservatives might want the First Amendment to work differently with online platforms than it does today. He may also have dropped some hints that he and his colleagues feel the same way about antitrust.


In a dissent released Tuesday, Alito wrote for himself and two of his fellow conservatives that he would let a Texas law proceed during an appeal. The law in question punishes big social media companies for their treatment of particular viewpoints in a way that most scholars think violates those corporations' free speech rights. A majority of the Court blocked the law.

But Alito also was clear to refer to "the power of dominant social media corporations" and gave a shoutout to Justice Louis Brandeis, the progressive icon of the early 20th century. That framing of the might of services like Facebook, and the approving reference to a jurist who's more or less the patron saint of the hipster antitrust movement, suggested to some that a bloc of Supreme Court conservatives may be sympathetic to the strange-bedfellows push to beat back the companies through antitrust enforcement.

"We have no doubt that champagne bottles were being popped at the law firm of Wu, Khan and Kanter," Blair Levin and Matt Perault wrote in a research note, referring to three high-profile competition-law reformers in the administration.

Lina Khan, the chair of Federal Trade Commission, is pursuing the agency's competition case against Meta, while Jonathan Kanter heads up the Justice Department's Antitrust Division, which is pursuing a lawsuit against Google. Both are expected to go through lengthy appeals — or even potentially end up before the Supreme Court — and both have fans among certain prominent Republicans who view antitrust enforcement as a way to punish Big Tech for how it handles right-wing speech.

Tech policy watchers have, in fact, often labeled the movement to use competition law against Big Tech as "Neo-Brandeisian" in reference to the justice's longtime skepticism of Big Business and his work to help build the FTC.

Brandeis, then, would seem to be an odd choice for avowed contemporary conservatives such as Alito and Justice Clarence Thomas, who joined his colleague's dissent, to cite. After all, the two had previously been viewed as reliable votes to limit the government's reach on antitrust. Yet in his dissent, Alito appealed to Brandeis' writings from way back in 1932 about states' ability to tackle “changing social and economic” times without overly hasty interference from the federal government — even though Brandeis himself was writing in dissent and wasn't forming court precedent.

Conservatives and state lawmakers of all stripes do routinely bring up a concept Brandeis formulated in the same text: that states can function as policy laboratories. Alito eschewed that line, though, and instead grabbed for the less-cited notion about the changing of society and the market. The latter does seem to share an outlook with Khan's frequent meditations on the evolution of business models as a reason she wants to push antitrust law in new directions.

In their note, Levin, a longtime tech industry analyst and former FCC staffer, and Perault, a onetime top policy official at Facebook, said all this intellectual winking and quoting seemed to add up to an interest by Alito, Thomas and others in anti-tech antitrust lawsuits, whether by the federal government or states.

"Alito’s dissent suggest to us that several Justices will be open to novel antitrust arguments in the future," they wrote.

Latest Bulletins

Mobile game revenue will decline for the first time in history this year, market research firm Newzoo now says in a revised outlook for the 2022 global games market. While the whole game industry is expected to contract by 4.3% — another first since Newzoo began tracking the market in 2007 — the company is predicting a 6.4% decline in mobile game spending on top of a 4.2% decline in console game spending.

Keep ReadingShow less

Amazon is planning to lay off thousands of employees, Protocol has learned, ahead of what the company has cautioned will be a slow holiday shopping season.

Keep ReadingShow less

Google agreed to pay $391.5 million and make changes to its user privacy controls as part of a settlement with a coalition of 40 state attorneys general. The coalition accused Google of misleading customers about location-tracking practices that informed ad targeting.

Keep ReadingShow less

FTX has filed for bankruptcy and the crypto company also announced that founder Sam Bankman-Fried has resigned as CEO.

Keep ReadingShow less

Salesforce recently updated its internal policies to make it easier for managers to terminate employees for performance issues without HR involvement, Protocol has learned, a move that comes as the software giant looks to shed as many as 2,500 jobs.

Keep ReadingShow less

The Consumer Financial Protection Bureau said fraud and scam reports comprise the top complaint it receives about virtual currencies — and that customers are finding little help from companies when it happens.

Keep ReadingShow less

Elon Musk sent his first email to Twitter staff late Wednesday, warning of a difficult economic road ahead and telling employees they need to be in office for a minimum of 40 hours per week. "Sorry that this is my first email to the whole company, but there is no way to sugarcoat the message," he began, ominously.

Keep ReadingShow less

Binance isn’t buying FTX after all. The crypto giant said Wednesday it has decided that it “will not pursue the potential acquisition” based on a “corporate due diligence” review.

Keep ReadingShow less

On Wednesday, John Kerry unveiled a plan for a new carbon credit program aimed at mobilizing private capital to help middle-income countries transition away from coal and move toward renewable energy.

Keep ReadingShow less

Meta announced it was laying off more than 11,000 employees Wednesday morning, slashing jobs in its recruiting department and refocusing its remaining team on AI discovery, ads, and its investment in the metaverse.

"I want to take accountability for these decisions and for how we got here," Mark Zuckerberg wrote in a message to employees that was also posted online. "I know this is tough for everyone, and I’m especially sorry to those impacted."

Keep ReadingShow less

Al Gore has one mission this week at COP27, and that’s to give climate negotiators what he hopes will be a critical tool to address the crisis at hand: an independent, global inventory of greenhouse gas emissions, down to the individual facility.

The Climate TRACE coalition just released the world’s most detailed inventory of global greenhouse gas emissions, which Gore, a founding member, is unveiling on Wednesday at the United Nations climate summit in Egypt.

Keep ReadingShow less

Way back in March, your friendly Protocol Climate team offered you some tips for writing a climate plan that doesn’t suck. Surely you took that advice. But if for some reason you didn’t, the United Nations has your back.

Keep ReadingShow less

Binance CEO Changpeng “CZ” Zhao said Tuesday the crypto powerhouse signed a deal to acquire rival FTX.

Keep ReadingShow less

Salesforce is preparing for a major round of layoffs that could affect as many as 2,500 workers across the software vendor, Protocol has learned, in a bid to cut costs amid a new activist investor challenge and harsh economic conditions.

Keep ReadingShow less

BlockFi has introduced a new digital assets interest product for accredited investors, after previously agreeing to shut down a yield-paying crypto product that the SEC said was illegal.

Keep ReadingShow less

The Justice Department said Monday it seized $3.4 billion worth of bitcoin stolen in the 2012 hack of the Silk Road dark web marketplace.

Keep ReadingShow less

U.S. election infrastructure is exceedingly secure, and voter fraud here is so rare it’s comparable to your annual chances of getting struck by lightning. Despite this, former President Donald Trump and a long list of allies in the Republican Party have spent the last two years questioning the overall integrity of the U.S. election system. Many of those allies are now candidates themselves, and their coordinated attack on the country’s status as a democracy is not a relic of 2020. Some have already started repeating these “Big Lie” charges ahead of next week’s midterms. And the social platforms that help them spread their message have prepared few measures to stop it.

Keep ReadingShow less

The White House just laid out its climate tech priorities to reach net zero by 2050.

Keep ReadingShow less

Coinbase said Thursday that it lost more users in the third quarter. But the decline wasn’t the disastrous drop that Wall Street was expecting, and that sparked a rally in the crypto company’s shares after-hours.

Keep ReadingShow less

The Biden administration announced $9 billion in funding Wednesday to improve home efficiency, which could help support the installation of up to 500,000 heat pumps. With winter approaching and utilities warning of gas shortages, there are some major challenges facing the technology that money can be used to tackle.

Keep ReadingShow less

Block beat earnings expectations, with strong growth largely fueled by its Cash App business. Traders sent shares up more than 12% after-hours Thursday.

Keep ReadingShow less

Stripe is laying off 14% of its staff, its co-founders said Thursday, as the fintech startup must start "building differently for leaner times."

Keep ReadingShow less

Roku saw its revenue growth slow in Q3, and warned investors Wednesday that things are about to get worse: “A lot of Q4 ad campaigns are being canceled,” said Roku CEO Anthony Wood during the company’s Q4 earnings call. “We’re seeing lots of big categories pull back. Telecom, insurance … even toy marketers are planning on reducing their spending.”

Keep ReadingShow less

Green jobs and corporate climate pledges abound, but skilled sustainability professionals are scarce.

Keep ReadingShow less

Robinhood reported a drop in third-quarter revenue but also a narrower loss on Wednesday, in a sign that it might be stabilizing its business as it attempts to recover from a staggering drop in the stock and crypto trading activity that fueled its growth.

Keep ReadingShow less
Bulletins