Amy Coney Barrett and the Looming Google Antitrust Case

Republicans appear set to confirm Amy Coney Barrett to the Supreme Court. Ryan Grim talks to Ilyse Hogue of NARAL Pro-Choice America about the last 50 years of right-wing legal activism. Then Luther Lowe, senior vice president for public policy at Yelp, breaks down what could become the biggest antitrust case since Microsoft.

[Musical interlude.]

RG: I’m Ryan Grim. Welcome, to Deconstructed.

We’re less than 18 days away from the Election, and Senate Republicans have spent the past week pushing Amy Coney Barrett through the Judiciary Committee.

Anger at the audacity of Republicans for moving so quickly to fill RBG’s seat, even as people are already voting for the next president, has triggered a historic flood of small dollars to Joe Biden and Senate Democratic candidates.

Here’s South Carolina Senator Lindsey Graham:

Senator Lindsey Graham: My opponent will raise almost $100 million. I’m being killed financially. This money is ‘cause they hate my guts.

RG: And it’s given Democrats the higher ground in those races. Here’s Lindsey Graham’s opponent, Jamie Harrison, in their recent debate:

JH: Your words, your promise was that no judicial nominee considered or approved or what have you, in the last year of an election. And you even named President Trump when you said it. Just be a man of it, and stand up, and say, “You know what? I changed my mind. I’m going to do something else.” But don’t go back and blame it on somebody else, for a flip-flop that you’re making yourself.

RG: In the third quarter, Harrison raised a stupefying $57 million, and Graham, Chairman of the Judiciary Committee, clearly thought that this hearing would be a way to even the score.

Here he is in a Senate office building this week. Bear in mind when listening that soliciting campaign cash inside a federal building is a crime:

LG: I think people in South Carolina are excited about Judge Barrett. I don’t know how much it affected fundraising today. But if you want to help me close the gap, lindseygraham.com, a little bit goes a long way.

RG: For their part, Democrats made the confirmation hearings about the Affordable Care Act. But if the court does strike down the ACA in the upcoming case, Democrats can fix it with a one-line piece of legislation if they control Congress in the White House next year. Still, it was clearly smart, short-term politics and has Republican incumbents scrambling to promise they’ll protect people with pre-existing conditions and on and on.

Roe v. Wade, however, is not so safe. Listen to what Barrett told Graham about whether she could ever see Brown v. Board of Education being overturned:

LG: One of the reasons you can say with confidence that you think Brown v. Board of Education is super-precedent is that you’re not aware of any effort to go back to the good old days of segregation by a legislative body, is that correct?

Amy Coney Barrett: That is correct. And I’ve also said in lectures that Brown was correct as an original matter. So that is the kind of thing since I’ve said it in writing, I felt like I could express before the committee.

RG: Graham also has a piece of legislation that would ban abortion after 20 weeks. Listen to what she said when he asked about that.

LG: So that Roe v. Wade compared to Brown v. Board of Education is not super-precedent.

ACB: Not super-precedent, as I was using that term in the articles that have been referred to.

RG: If ACB is confirmed, opponents of Roe would have 5 votes to overturn it. Maybe they’ll blink, or maybe Democrats will make sure there are 6 votes to uphold it by expanding the court. But, either way, the fight isn’t over.

It’s not often that politicians talk openly about the forces that are driving the agenda. To understand that, we need to go back to the 1970s, when radical Republican operatives figured out how to link the interests of big business with the grassroots energy of the evangelical vote, by manufacturing concern about he issue of abortion, which had been non-controversial even into the mid-to-late-1970s.

That project has now grown extraordinarily sophisticated and well funded, as democratic Senator Sheldon Whitehouse laid out during the hearing:

Senator Sheldon Whitehouse: Pretty big deal. I’ve never seen this around any court that I’ve ever been involved with, where there’s this much dark money and this much influence being used. Here’s how The Washington Post summed it up: “This is a conservative activist’s behind-the-scenes campaign to remake the nation’s courts. And it’s a $250 million dark money operation” — $250 million is a lot of money to spend if you’re not getting anything for it. The Republican Party platform tells us to look at how they want judges to rule to reverse Roe, to reverse the Obamacare cases, and to reverse Obergefell and take away gay marriage. That is their stated objective and plan. Why not take them at their word?

RG: That Amy Coney Barrett is on the brink of the Supreme Court is the culmination of that strategy. We’re joined now by Ilyse Hogue, president of NARAL Pro-Choice America, and author of the new book “The Lie That Binds.”

Ilyse, welcome to Deconstructed.

Ilyse Hogue: Thank you Ryan. It’s great to be here.

RG: I wanted to start with Mike Lee. He made some news this week with a kind of startling assertion on Twitter, and was a point that he kind of elaborated on during the confirmation hearings and on Twitter he wrote that, Democracy isn’t the objective; liberty, peace, and prosperity are. We want the human condition to flourish. Rank democracy can thwart that.”

Now, that sentiment sounded awfully familiar to me after reading your book. One of the founders of the Christian conservative movement, Paul Weyrich, said this at a 1980 convention, where Reagan and Jerry Falwell also spoke.

Paul Weyrich: Now many of our Christians have what I call the goo-goo syndrome — good government. They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people; they never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.

RG: And so, Ilyse, who was Paul Weyrich and what’s the link to people like Mike Lee?

IH: Paul Weyrich is the most influential person on the right-wing that most people have never heard of. He was sort of the cornerstone that started the new radical right, funded so much infrastructure that dominates the landscape today, including Heritage, including Federalists Society. And he called himself a dominionist. He straight-up said he believed God gave white Christian men dominion over all systems of power, certainly including the family, but including economic systems, social systems, and political systems.

And you have to remember, he was living and working to build this infrastructure in the late 60s and early 70s, when the country was in the throes of change! You know, the civil rights movement had become mainstream, the gay liberation movement was underway, women’s lib, black power, and he essentially said, in order to maintain order — in order to maintain order in this society, sound familiar — we have got to assert tighter control over these systems and that requires actually minority rule. So how do we do that?

And I think the straight line between him and what Mike Lee said this week is not just the shared philosophy that you’ve got a white male power structure that is intent on maintaining a status quo against people clamoring for change, but that, in fact, this is the end game for a strategy that Weyrich launched, which did involve subverting democracy — certainly through suppressing the vote, certainly through disinformation and monopolization of the narrative, but absolutely, through capturing the courts. And that strategy, which was initiated through the 70s and the 80s, is what we are living through, end-game this week, with these hearings.

RG: And so, you and others have talked about the way that he linked up kind of big business interests, and this nascent, you know, Christian Right in order to create kind of an electoral front for the movement that you talked about to kind of defend the status quo. So you know, Mike Lee is a part of that. Josh Hawley, too — he’s on the committee, he’s another religious conservative who talks a lot about right-wing populism and kind of reining in the monopoly power of big tech.

Now, he went to the Senate floor recently, after the Bostock decision, that was the Supreme Court decision that said that LGBT protections apply in the workplace, essentially. He went to the Senate floor, and just ripped into it and spoke more openly about the alliance that you’ve talked about, then I’ve ever really seen in public, at least on the Senate floor.

Senator Josh Hawley: Now, this is a very significant decision. And it marks a turning point for every conservative, and it marks a turning point for the legal conservative movement.

You know, the legal conservative project has always depended on one group of people in particular, in order to carry the weight of the votes to actually support this out in public, to get out there and make it possible electorally. And those are religious conservatives. I’m one myself. Evangelicals, conservative Catholics, conservative Jews, they’re the ones — let’s be honest — they’re the ones who have been the core of the legal conservative effort.

And the reason for that dates back decades, back to the 1970s. The reason for that is these religious conservatives are from different backgrounds, but what they have consistently sought together was protection for their right to worship, for their right to freely exercise their faith as the First Amendment guarantees, for their right to gather in their communities, for their right to pursue the way of life that their scriptures variously command and that the Constitution absolutely protects.

RG: So, Ilyse, what’s he saying there? And what does a speech like that say about where this alliance is headed?

IH: I mean, it’s really fascinating, isn’t it? Because they were kind of trying to have it all ways. You have a founding infrastructure deeply committed to economic rule, which requires alliances with increasingly unaccountable corporations. But that doesn’t lead to a lot of foot soldiers, right? Not a lot of corporate executives are going to be knocking doors in the districts and states that you need.

So they created all of this narrative and infrastructure around exactly the constituencies that Josh Hawley lays out, right? Pretty extreme fundamentalists in certain elements of religious society that previously had not been mobilized to politics generally. But if they had been and had been around an entirely different set of issues. And they had been lulled into politics by actually the idea that they’re being threatened — threatened by these changes in society.

RG: To their way of life.

IH: Their way of life, right?

And arguably, that’s true, and we think their way of life was not threatened, right? But their way of life was threatened as being the only way of life that was acceptable in this society.

RG: Right.

IH: And those of us who stand for social progress and plurality and diversity think that is a positive thing. And I think what Hawley is speaking to is the fact that there were always that one sort of crack in the armor, because a lot of these people are actually working people who do stand to lose from the very same aims of this movement, when you look at the way that they have sided with corporate titans over working people. And it’s a very interesting thing.

Now, where does that mean the movement is heading? I mean, I think we’ve seen that. Right? Isn’t Trump the manifestation of that right-wing populism and his constant tension with the more establishment Republicans, and he makes them a little crazy. So I think that we are potentially headed for a very big rift in the GOP that has been very fragile-y bound together for the last 40 years. And you know, I think that would be a positive thing, quite honestly.

RG: Now, does Amy Coney Barrett make somebody like Josh Hawley happy, finally? It seems like he’s saying, look, you know, we’re suffering in this alliance, because our people are getting hurt by these corporate titans. But all we asked for is that our status quo be maintained, yet it’s not being. But if you get an Amy Coney Barrett, does he say, “OK, fine, this alliance was worth it. Is that kind of what the implication is here?”

IH: I think that they really do believe that the cementing of a right-wing majority — an unimpeachable super-majority, some would argue, on the Court, if they have a 6-3 ideological split — plus what she personally represents, which is this sort of perversion of what we believe the intention of religious liberty is. You know, we define religious freedom as: I get to do what I want, in my home, because of my own religion, you aren’t going to tell me not to do that. But I don’t get to tell you, Ryan Grim, what you should do, because of my faith.

They, on the GOP side, actually, completely invert that, and say: anytime I don’t get to tell you what to do because it offends my faith, that’s religious persecution. And I think they see her as simpatico in that. Right? I think that’s why they’re trying so hard to goad the Democrats into a fight over faith, which you know, I will give them credit, they did not take the bait. Right? And nor should they, because this is a question of record decisions, ability to actually judge impartially. And she has absolutely failed on all of those fronts. But they are trying so hard to make this a war over faith.

And they’ve been wanting this war over faith for a long time. Right? This goes fundamentally back to when they fought school desegregation in the late 60s, because they claimed that it violated their religion to have to integrate their schools. Their interpretation of their own religious faith and their own religious liberty is so tied up in control, power, and oppression of others, that it is not actually an acceptable interpretation through the Courts, through legislation, or any other mechanism to embrace that in a diverse and pluralistic society.

And guess what? Whether they like it or not, that’s what America is.

RG: Ilyse, you’ve also talked about the role of women in this particular movement. And so I want to finish up with Marsha Blackburn, who was kind of the clean-up hitter at the hearing. I’ll play a little bit of what she said and get your take.

Senator Marsha Blackburn: You don’t fit into their elitist format. You’re a girl from the South, from New Orleans. You went to school at Rhodes, in Memphis. I don’t know if my colleagues have ever been to Memphis or ever been to Rhodes, but you don’t fit into their Harvard, Ivy League group. You’re not a part of the clique or the club. You came to D.C.; you clerked. But Judge, you messed up: you went back to Notre Dame, and you chose to teach and to have a family. They don’t want to admit you got where you got; you earned it. And that is why we are so honored to support you.

RG: What is Marsha Blackburn doing there?

IH: So, I mean, begrudgingly Ryan — you know how begrudgingly — I actually thought she did an excellent job of what she was trying to do. What Marsha Blackburn is saying, over the backdrop of an entire American public who does not want this nominee rammed through, wants to actually be able to elect a next president and have that president fill this seat, what Marsha Blackburn is saying to a constituency that the GOP has been losing steadily for the last four years since Trump was elected, which is predominantly suburban white women — right — she’s saying you, women, have more in common with Amy Coney Barrett than you do with those coastal elites. They don’t like you, they don’t respect your way of life, and by them opposing this nominee, they are actually rejecting who you have chosen to be in the world.

Of course, nothing could be further from the truth. [Laughs.]This nominee is way too extreme for most of this constituency of voters. But what Marsha Blackburn is doing is relying on the allegiance of optics, the allegiance of “I look like her, I sound like her, I’m a mom like her,” over an examination of what are quite fundamentally radical views that would put off the same constituency of voters.

So Marsha Blackburn was sent out there to do a specific thing, which was to not just put a capstone on this illegitimate confirmation that they’re pushing through, but actually to try and mitigate the damage that it will do with a constituency of voters that they very much need, not even just to hold the White House, which, you know, the gender gap is so big at this point, it’s hard to believe. But she was saying, you know, even down-ballot, even the Senate races, even these people sitting on this dais, like Tom Tillis, like Lindsey Graham, who are on the ballot in 19 days, these people respect who you are, the other side does not.

I mean, this is literally from the playbook of Ronald Reagan when he was absolutely hemorrhaging women because of his policies and his misogynistic tendencies in his first term. And they were like: What do we do? What do we do? And they were like: I know! Let’s just name the first woman Supreme Court Justice, and they did, with Sandra Day O’Connor. And it saved them that time. I think it’s a much higher hill to climb for this to win women voters back to Trump.

RG: Republicans are pushing such an unpopular agenda here. How is it that Democrats can’t stop them? What are they doing wrong here?

IH: Yeah, I mean, the fundamental thing that they’ve done wrong is the Republicans have played the long-game. I mean, we lay out in the book that this is the culmination of over 40 years of strategy — almost 50 years of strategy — and the Democrats tend to treat each election cycle as though it’s a new one [laughs], responding to what’s happening in the moment, which I understand the allure of that and there is certainly a lot happening in this moment.

But you know, we have not seen that same kind of long-term strategy in support of an aspirational vision and ideals on the Democratic side in some time. And then I would argue that there is probably a well-intentioned but misguided over-reliance on the norms and practices that sort of bind together a democracy. And I think that’s true explicitly in the Senate, where we have a lot of institutionalists; you hear a lot of nostalgia for times gone by where you could work across the aisle, you know?

And it’s like: I’m so sorry that those times are gone. But how much more evidence do you need that those times are gone. Right? I mean, you can’t look at the Coney Barrett nomination without going back to 2016 and watching what they did to Merrick Garland and stopping him from even having a hearing, even though Scalia died, and even though Obama nominated him 10 months before the Election, right?

And that was a high-stakes gamble for McConnell at the time. It was such an abrogation of norms, that they basically dared people to call them out and make them pay a huge political price for it. But they thought it was worth it, because they understood the overarching strategy and how crucial this moment was to them in the long game. And they did it. And they won! And they weren’t even punished for it. Right?

RG: Yeah.

IH: And so what do they do? They go on to continue to break rules. And I think that Democrats have, you know, Democrats want democracy to work. So I give them absolute points for their feelings and their intentions there. But they have been slow to recognize that this is just like asymmetrical warfare, where you have one side breaking the system to get minority rule and the other side trying to just play within a broken system in a way that’s never gonna allow them victory.

RG: Well, Ilyse, thanks so much for joining us.

IH: Thank you, Ryan, and thanks for all you do.

[Musical interlude.]

RG: That was Ilyse Hogue, president of NARAL Pro-Choice America.

If Barrett is confirmed, Josh Hawley and Mike Lee will be getting what they want on the culture war front, but it may come at the expense of their top corporate concern, monopoly power. On that front, Barrett and her allies have tended to side with corporate power.

While Coney Barrett was being grilled, Washington was buzzing about two major big tech stories, both related to the Supreme Court. One was the rumor that the Justice Department will soon be filing an antitrust complaint — The United States v. Google. That case has been in the works for years, and, if it’s finally filed, it’ll make one of the biggest fights between the government and concentrated corporate power since Microsoft was beaten back in the 1990s.

This comes as the House Antitrust Committee has just released a major, new bipartisan report calling out Facebook, Google, Amazon, and Apple for abusing their market power, a sign that Congress is ready to move.

Justice Clarence Thomas, meanwhile, also made news this week by arguing that Section 230 — an important provision of law that shields tech companies from liability for what appears on their platforms — should be scaled back, which is one of the Congress’s biggest weapons in its fight with big tech.

Trump latched onto that argument at a North Carolina rally on Thursday:

President Donald J. Trump: And if big tech persists in coordination with the mainstream media, we must immediately strip them of their section 230 protection. [Cheers and applause.] OK? It’s very simple.

Now, we all believe in freedom of the press, but don’t forget, big tech got something years ago that let them become big tech — they got total protection. They don’t get sued; they don’t get anything. They’re totally protected.

So the government gave that. So that takes away that little feeling that, “Oh, gee, we can’t talk to them about freedom of the press, et cetera.” No. We’re going to take away their Section 230 unless they shape up.

RG: The second major tech story was the decision by Twitter and Facebook — though, quite interestingly, not Google — to suppress an article by The New York Post that was based on emails from Hunter Biden it obtained. The Post claimed that the emails had been found on a computer that had been turned in at a repair shop. That’s an awfully unlikely story, and people were quick to surmise that the emails had been harvested from a hack by a foreign adversary.

But so far, the emails themselves have not been debunked as fake.They show a Ukrainian businessman thanking Hunter Biden for creating an opportunity for him to meet with his dad, Joe Biden, and they show Hunter Biden leveraging his relationship with his dad for financial gain. The latter we already knew, but the former — potentially helping arrange a meeting with his dad — that would be news.

Biden’s camp has denied that any formal meeting like the one described was on Biden’s schedule, but they haven’t ruled out the possibility that the two met informally at an event in Washington, which is how you’d expect Hunter to connect somebody with his dad. After all, before the pandemic, Biden likely chatted up dozens of people at events every week. But, by the end of the week, Twitter had reversed itself, and said it made a mistake in censoring the story.

The big tech battle is just beginning, though, and to understand more about it, we’re joined now by Luther Lowe, who is the senior vice president for public policy at the company Yelp.

Luther, welcome to Deconstructed.

Luther Lowe: Hey, thanks for having me, Ryan. Great to be here.

RG: So this is a really exciting time, in the world of antitrust. You don’t just have the House antitrust subcommittee report; you’ve got the rumors of the United States v. Google complaint coming. You’ve got the talk of the Attorney Generals getting together to sue Google over various practices. And you’ve got this Supreme Court nominee winding through the process, you know, who is going to have the power to kind of reshape or constrict what, you know, what prosecutors are able to do when it comes to Google.

I wanted to have you on ‘cause you’ve had such a long running back and forth with Google, that you know this area about as well as anybody. So for people who are kind of new to this, can you tell us a little bit about how Yelp first wound up in Google’s crosshairs back in the day?

LL: Sure. Well, we’ve got a long history, complicated relationship with our friends down in Mountain View. And it started, really, as a friendship. When Yelp was a tiny startup in 2005, we entered a partnership with Google. And for example, if you did a search on Google for sushi in San Francisco, and really Yelp was pretty tiny back then and really probably only had content for places like LA and San Francisco, you would see a box at the top of the screen, not just 10 blue links, but they’d kind of created this new user interface, and inside the box, you have a map and you have some businesses with reviews. And those reviews would be coming from Yelp — it wouldn’t be all of our stuff, it would be like a snippet of it. And then the idea would be that, you know, it sort of was a win-win: Google would be able to offer this richer search result page, and Yelp would be rewarded with traffic for helping cultivate that content. And they had these types of partnerships with TripAdvisor and some of the other sites as well.

And this lasted for two years. And then in 2007, there was a moment where the license was about to expire and Google added a button that said “Click here to write reviews.” And you know, if you’re sitting there looking at Yelp or TripAdvisor content, you see a button that says click here to write reviews, you might think: OK, I’m about to go write reviews on Yelp or TripAdvisor. But of course, it was the beginning of their competitive posture where they’re sort of collecting content of their own.

So we said: You know what? Thanks, but no thanks, on the partnership; we’ll just live in the 10 blue links world. And from ’07-’09, we know now through some documents that leaked out of the FTC, that Google was sort of ripping its hair out, frustrated that without the third-party content from TripAdvisor and Yelp to help power its local search results, people were not really that inclined to leave reviews.

So it’s sort of like a chicken-egg problem — you have to have some content before people feel like the need to leave content. And so in ’09, those FTC documents showed that executives at Google said, “Hey, Eric Schmidt, can we try to buy Yelp?” And in late ’09, Google tried to buy Yelp and, for a variety of reasons, we decided to stay independent. And then that began the era of scraping where they were just taking everybody’s content and powering their local experience, kind of like they were from ’05-’07. But in this case, they were offering no link-back or no attribution — and so:

RG: Right, so what were they doing? They were just copying your reviews and just pasting them right into Google?

LL: Yeah, like if you went to a Verizon store in like, May of 2010 and bought an Android phone, and ripped off the cellophane and booted it up, you would see an app called Google Places. It was like literally un-deletable, it’s on the first page, you click on it, and if you pulled up reviews for you know, like Cheesecake Factory in Kansas City, you’d be reading Yelp reviews with no link-back or no attribution.

And so it was really bad for over a year and a half. Google was was doing this and saying, when we protested behind the scenes, saying, listen, if you don’t like it, you can just like de-index yourself; you can go to robots.txt and say, “No follow” and effectively, you know, giving us this false choice of like if you don’t like how we’re treating your content, you can basically kill yourself and knock out this thing that gives you 80 percent of your traffic or whatever.

RG: Go live on yahoo.com.

LL: Exactly, yeah. People I’m sure will find you on Bing or whatever.

RG: Right. You hear echoes of that argument today. If you don’t like Twitter censoring your news, then just, you know, go elsewhere.

LL: Right. No. There is definitely — Matt Stoller had a funny tweet yesterday dunking on Justin Amash about how monopoly is sort of the limit of libertarian logic. Because the whole idea of monopolies, you don’t have a choice, there’s actually no alternatives.

RG: Right.

LL: And these services are kind of like the guts of the information infrastructure. And so you can’t escape Google; you can’t escape these large tech platforms.

But anyway, what ended up happening was we went to a conference of Attorneys General in July of 2011, and kind of had our coming-out-of-the-closet party, if you will, and appeared on a panel where we publicly kind of described what Google was doing to us. And there were like, 35 state agencies in the room, plus Google lobbyists and, like, literally the next day, Marissa Mayer, who at the time was running all local search stuff at Google at the time, called our CEO and said: Hey, we got some exciting updates! We’re not going to use third-party content anymore.

So the lightbulb sort of went on for us that, wow in antitrust, your weakness is your strength. It’s sort of like a judo move. And that, you know, the a-word is like the only thing that Google respects. And so ever since then, we’ve had a scrappy effort to try to agitate and create as much attention to how they sort of put their hand on the scale on the internet, and it’s finally kind of coming to this really important crescendo.

RG: Now, so many people use Yelp, that I would expect it’s easier to get publicity around the problems that you guys are facing with Google. You know, all of those AGs sitting in that room, you know, had probably used Yelp at one point or another. And there’s something kind of valorous about it.

You know, people love that idea that people are going to shops and restaurants and using their own time to drop a review, to just help out the community and try to make the community a better place.

And so I wonder if you know you’ve got some of that sort of political capital. You’re not a small business, but you kind of have the virtues of having one in the minds of people like those AGs. Most companies don’t have that. So, you know, what’s it like for other other small businesses that are trying to deal with the problem as it relates not just to Google, but to some of these other platforms as well?

LL: Yeah, I mean, I think we’re, we’re pretty lucky because we’re sort of in this Goldilocks zone of we invested early enough in having an app on the iPhone, that we were able to dis-intermediate Google, and we were out there early enough that people kind of knew what Yelp was, at least people in the U.S., and so when folks started buying iPhones and smartphones and downloading apps, that allowed them to sort of sidestep even using Google as the middleman.

And that has really kind of saved our bacon as a company and created the, you know, the ability for us to have a little bit of budget to sort of stir the pot and try to agitate on these issues. But it’s a great point. Like, one of the compelling testimonies in the House antitrust subcommittee that you read about and also, Adrian Jeffries covered this story as well for I believe it was The Outline, but his story has come out a little bit.

This guy that runs this website Celebrity Net Worth, and it’s kind of a silly website, like the premise is like, you know, we’re gonna make an educated guess on what this person might be worth based on stuff in the public domain. But the reality is that he is responding to demand in the marketplace. It turns out it is like a very common thing that people search for, even though there’s no way to know it because people’s bank accounts are private.

RG: Right.

LL: But for maybe some public company officers where there have to be disclosures.

RG: I’ve noticed that if you google anybody’s name, what pops up after it is Net Worth.

LL: It pre-populates. Exactly. Because it’s such a common query.

RG: We’re so weird.

LL: Yeah. [Laughs.]

So anyway, but this guy, he’s clever. And he said: Hey, there’s a lot of folks who are doing these types of searches. And nobody is even making an attempt at making an educated guess of what people might be worth. And so I’m going to create content to sort of respond to this.

And that was the original bargain with Google, it was like, to consumers: If you come to Google, and you do a search, I promise you, you’re never going to use Yahoo or AltaVista ever again, because our technology is so much better.

To webmasters: Hey, if you architect your site in this particular way, if you focus on cultivating great content, you’ll be rewarded with an audience. And so he was sort of responding to that tacit promise that, listen, you will be rewarded if you create content that people are looking for.

And so, anyway, at the height of this business he was making millions of dollars, he had 12 employees and a pretty interesting story.

And then, at some point, basically the same playbook that they used on us, they came in, they called and said, “Hey, could we get all your data in sort of a structured format, we want to start powering our answer boxes with it.”

And he said, “Why would I do that?” Then people will just sidestep going to my site and seeing the ads, and it’ll ruin my business. And basically, what happened was they didn’t give him a choice anymore, they just took his stuff. And he had to lay everybody off. And now it’s just kind of like a side project.

There are countless stories about how Google, I think, really betrayed the web. Because roughly the first decade of Google it was all about: Hey, let’s get you out to the web, let’s get you on Google, out to the web as quickly as possible. We are a turnstile.

RG: Right.

LL: But now they’re more of a portal. It’s all about sort of keeping people, keeping the traffic on Google, such that another finding of that House Antitrust Subcommittee report was that last year, the majority of traffic going to Google either terminated on Google or went to Google’s secondary pages. So it’s really just the negative externalities, in terms of how it’s negatively impacted small startups and little websites. It’s really hard to understate.

RG: And the premise of Google was always that, you know, they’re going to give you the most relevant, best results that they possibly can with the most sophisticated algorithm that’s ever been developed. And if you type something into Google, you know, you can trust that they’re doing their absolute best to return to you what you’re looking for, and that’s what’s going to keep you coming back.

And then they’re going to sell ads around the side: there’s going to be ads on the side, there’s going to be some ads on the top, and consumers kind of understand that bargain in a capitalist society — if I want to click on the ad, I’ll click on the ad. But if I just want an organic result, then I’ll click on that.

But what’s emerged is that those aren’t actually organic anymore, that Google has a kind of algorithmic tweak that says that if their own products don’t win the search, they win anyway. How did they pull that off? And is that something that prosecutors are looking at?

LL: I hope so. And we’re going to know pretty soon. I think the latest report suggests that the DOJ filing is imminent, like within days, and we’ll be able to see some of the details laid out in that complaint.

But I think you’ve said it well. You know, it used to be 10 blue links and ads. And now there’s like this third category of content, and it’s just sort of like their house product. And the problem with that is it doesn’t go through the same kind of merit-based processes that everybody on the web has to go through.

So for example, I mean, using a local search, which is, you know, where we operate. It turns out local searching is like the most common thing people do on Google — 46 percent of all searches on Google have some kind of local intent.

And so let’s say I’m looking for a pediatrician in New York City. If I type in “pediatrician NYC today” on my smartphone. First of all, it’s most likely I’m doing it on my smartphone: 65 percent of search volume comes from smartphones. The screen size is much smaller on a smartphone. And so Google’s user interfaces, this map and the information being pinned to that map looks useful, because it’s businesses and ratings and stuff. But none of that stuff has gone through the standard organic algorithms. It’s just Google kind of pulling its own pediatrician reviews out of its back pocket. And what that leads to is people are just completely oblivious to the fact that you, if you scroll down the page, you’re going to get far richer reviews from services like ZocDoc, or RateMDs, or Healthgrades, or Yelp.

And what ends up happening is like 80 percent of the people click on stuff that’s powered by Google. And they’re just unwittingly mismatched with this objectively lower-quality information. So I hope that’s a component of the antitrust case, because, really, in antitrust you can show that there’s a quality loss; if you’re not showing a price increase, you can kind of substitute quality loss for price increase in antitrust. And so I hope that that is a component of what the DOJ brings.

RG: And what, in general, are the targets of the prosecution, both the AG and also the U.S.? In other words, what can you do about this? Like, let’s say that we’re only gonna have one dominant search engine, what can you do to a company like Google or Alphabet when it comes to antitrust?

LL: I think we’re gonna see three different angles of attack. On the DOJ case, it sounds like it’s all about defaults. So, for example, I think it’s been estimated that over the last 12 months, Google has paid Apple $13 billion for defaults on iOS. So when I buy a brand new iPhone, and I boot it up, and I start using Siri to search for stuff, unless it’s something that’s like, easily accessible for Siri, the query gets kicked over to Google and Google’s paying top dollar for those defaults.

You know, Google, aggressively ships browsers like Chrome, and even pays — I mean, Firefox effectively is a subsidiary of Google, because all of their money is from the defaults, that for the most part, the defaults that Google buys. And then, of course, Android is an entire strategy to protect Google defaults. It’s like, hey Samsung, and all you phone manufacturers that are non-Apple? You know, good news, we’ve got a free iOS for you; bad news, you have to set it up exactly as we prescribe or you don’t get any of the cool features.

And so all of these you could imagine as being components of a defaults case, which is what the DOJ is apparently poised to file.

And then not long after that the state of Texas. We know this — sunshine laws in Texas are pretty good — so reporters have been basically getting all the case files and subpoenas that have been sent to Google headquarters from the Texas AG. And that case looks like it’s all oriented around advertising technology.

So if you imagine, if you run a blog, and you don’t want to have Salesforce selling ads against the traffic on your blog, you go to your code; you put in HTML and add a little bit of code. And you’ve got a little advertising widget and you know, the entire ad tech stack, as it’s called, Google controls so many elements of that.

It’s a more complicated case, I admit, I’m not the most eloquent on that particular issue. But that is one area of focus. And Texas has a really big and robust team and lots of resources. Their Attorney General is under some controversy, but it appears that’s not slowing their effort.

And then finally, you have a multi-state, bipartisan group that includes states like Iowa, and Nebraska, Colorado, New York. And they’re looking at the search page. So vertical search — things like the how Google self-preferences, and search advertising. So it seems like it’s going to be a really robust set of issues that they take up. And it could ultimately get consolidated, but it’s really just hard to imagine kind of a worse situation for Google with all this antitrust activity in the U.S..

RG: Yeah, I remember watching in real time back in the late 2000s, when Google changed its advertising policy and, in one fell swoop, basically obliterated the independent blogosphere. The blogosphere as we know it doesn’t exist anymore, because overnight, people who’d been able to make a living off of ads on their blogs, couldn’t do it anymore. Now the ones that remain have been sucked up by media institutions, which themselves are now getting annihilated by these monopolistic platforms.

So this fight against Google, it is probably just the beginning. I don’t think you can call a titanic clash like this a warm-up, but Amazon and Apple and Facebook must be watching this very closely.

And I’m curious: for people like Mike Lee and Senator Hawley who have been kind of outspoken on the anti-monopoly front, but who are also outspoken advocates of confirming Amy Coney Barrett to the Supreme Court and of a kind of conservative legal movement that has been, in many ways, empowering corporations — Clarence Thomas’ statement the other day about Section 230 notwithstanding — are they sort of taking a culture-war win here and taking an anti-monopoly loss? Is the kind of populist right going to kind of vanish from this scene as we go forward?

LL: It’s a great question. I mean, it’s honestly hard to speculate. But if you look at who vets the sort of judiciary for Republicans, it’s the Federalist Society. And if you actually dig in at all to how the Federalist Society views the world when it comes to antitrust, it’s incredibly narrow, it’s incredibly hostile to enforcement, in plaintiffs, and so I don’t what the long term sort of squaring of the circle is, from, you know, the rhetoric we hear from someone like Senator Hawley, and the type of judges that ultimately, when they get into office, and they hear an antitrust case, inevitably make the jurisprudence so much more narrow.

And so it’s, it’s a real problem. And I think that’s what’s, you know, been a large part of the energy that’s, that’s come about from the so called Neo-Brandeisians that, hey, we need to write new laws to make sure that judges aren’t just being overly restrictive in terms of how antitrust law is enforced, because it’s generated this serious concentration problem in our economy that’s produced all kinds of negative externalities including loss of wage growth and things like this.

RG: If you’ve still got time, I wanted to ask you about Section 230. You know, Trump is making a big stink about Section 230 now; you had the Clarence Thomas statement this week. You know a lot of folks on the left have said that Section 230 needs to be reformed. And that’s essentially a provision of law that says that a platform is not liable for content that it hosts, user-generated content.

In other words, you’re not liable if I post some crazy comment on an article; it’s not the responsibility of that website. And so the push is to say: Well, that’s not fair, that’s giving them too much leeway, and they’re kind of abusing it.

But I also wonder, how do you hold a place — even like Yelp — or Facebook responsible for something content generated by billions of people around the world? I don’t have an easy answer to this one. Where do you come down on this?

LL: You know, we are ardent defenders of Section 230. And it’s not as fun of an issue to talk about, I joke, because it sort of pushes me into Google’s corner. And we agree.

Everybody I talked to on Capitol Hill, who is kind of saber-rattling around 230, I always kind of say: Let’s take a step back. Would we even be talking about this if we were living in an alternate universe where Google and Facebook were not as large? And the answer is always: Of course not.

And so our position has been: Listen, let’s focus on enforcing antitrust laws. Let’s make sure that the enforcers have all the tools that they need to bring successful cases. And then your grievances about what you think 230s are going to solve go away.

Section 230 is axiomatic to the existence of the modern internet. And I think once you start monkeying with the intermediary liability protections, it really unleashes a lot of negative outcomes.

And so, I think part of the problem is that so many of the trade associations and groups that are out there defending 230 take money from big tech, and people just don’t trust them. And it’s like the same guy that’s going in there pitching you on why we shouldn’t enforce the antitrust laws is also saying why 230 is sacrosanct. And I really think there needs to be a coalition of consumer groups and small companies whose pitch is basically: Listen, we hate them too! You know we are not happy about these large tech companies either, but 230 is not the right angle of attack.

It’s going to obviously wind its way through Congress. And there’s going to be some more debates about it. But I hope that we wind up in a more reasonable place on 230. But I think it’s kind of silly season right now, that we’re a couple weeks away from the Election.

RG: Right? Yeah. I’m trying to imagine somebody suing The Intercept, because some crank posted something in our comments section or a restaurant owner sues Yelp because they don’t like one of the reviews that’s posted there. It’s hard to imagine having, like you said, kind of a functioning website — I guess you basically couldn’t have user-generated content, it seems like.

LL: I don’t see how you do it either. And so that’s why it’s really important. And I think next year, I mean, maybe some of this momentum will stall if there’s an administration shift and if there’s a blue wave, who knows. But I think that there’s an appetite by many Democrats to tinker with it as well. And so, you know, hopefully this, this leads to a broader conversation and sort of clear heads will prevail.

RG: Well, I really appreciate you taking some time to join us. Luther Lowe, senior vice president for public policy at Yelp.

Luther Lowe: Thank you again, Ryan. Thanks for the invitation.

[Musical interlude.]

RG: That was Luther Lowe, senior vice president for public policy at Yelp, and that’s our show.

Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

And I’m Ryan Grim, D.C. Bureau Chief for The Intercept. Ilyse Hogue’s book, “The Lie That Binds,” was published by Strong Arm Press, of which I’m a cofounder. If you’d like to support Deconstructed, go to theintercept.com/give — your donation, no matter what the amount, makes a real difference.

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