An 'Essential' Solution: Reworking the Essential Facilities Doctrine to Address Big Tech’s Harm to the Marketplace of Ideas

Abstract

The Big Tech firms dominate our daily lives. We feed them revenue as we feed them our attention. In return, many trust they are providing access to a wide range of content that reflects a wide range of viewpoints. This trust is misplaced. Big Tech censorship is at the forefront of modern discussion. Conservatives aver that the Big Tech gargantuans silence conservative voices by censoring conservative content. But many left-leaning individuals and businesses claim Big Tech equally censors their content as well. Both sides present compelling evidence to back their claims. This Article demonstrates that regardless of one’s political affiliations, it is indisputable that Big Tech censors a substantial amount of content. Of course, it is a normative question whether Big Tech censors too much content or favors particular viewpoints. Meanwhile, Big Tech antitrust litigation has dominated recent news columns. However, none of this litigation seeks to rein in Big Tech censorship; instead, the litigation is based simply on traditional antitrust considerations. Taking a different approach, this Article argues Congress or the courts should utilize antitrust law to deter Big Tech censorship. Antitrust law is best suited to deter Big Tech censorship because censorship causes concrete antitrust harm by impairing the marketplace of ideas. Moreover, other sources of law––such as First Amendment jurisprudence––have failed to remedy this harm. Congress or the Courts should revitalize the essential facilities doctrine to protect the marketplace of ideas and consumer welfare. By preventing the Big Tech firms from refusing to deal with content publishers based on the publishers’ viewpoints, we may finally halt Big Tech’s anticompetitive and anti-democratic behavior.