The Biden Administration stretched antitrust laws for political ends, and now the Trump crowd is doing the same. The latest exhibit is the Justice Departments bizarre legal filing in a lawsuit (Childrens Health Defense v. WP Company) by anti-vaccine activists against media companies.
Childrens Health Defense the anti-vaccine outfit that Health and Human Services Secretary Robert F. Kennedy Jr. previously led and like-minded plaintiffs claim the Washington Post, Reuters, Associated Press and the BBC colluded with Big Tech companies to censor them. The platforms are unnamed alleged co-conspirators.
How did this supposed conspiracy work? Plaintiffs say the media companies joined an industry partnership around 2020 called the Trusted News Initiative, which shared misinformation on Covid, vaccines, elections and other matters. They claim the goal of this industry partnership was to undermine competitors with differing views.
They add that social-media platforms censored information at the direction of this media partnership. This is an illegal group boycott under the Sherman Antitrust Act. Or so their argument goes, which isnt very far. Antitrust inquiries depend on facts and evidence. The plaintiffs dont show that platforms censored them at the direction of the media partnership.
Media companies say they at most collectively decided what to count as misinformation, and the platforms made independent decisions. By the way, Childrens Health Defense accused Biden officials in a separate lawsuit of jaw-boning platforms to censor it. So who are the real censors behind the curtain the media or government officials?
Another major problem with the lawsuit is that consumers dont seem to have suffered harm. Consumer welfare has been the north star of antitrust law for 40 years because it provides an intelligible standard for determining what counts as anti-competitive conduct.
Plaintiffs say internet users were deprived of diverse viewpoints and that some of their censored posts e.g., on natural immunity, social distancing and the viruss origins werent erroneous. But many were. Internet users could still find diverse views about such subjects in other places, including in these pages.
None of this matters, according to the Justice Departments statement of interest. DOJ isnt taking a side in the case, but it endorses the plaintiff argument that the Sherman Act protects competition in viewpoint diversity, which apparently includes false statements about vaccines.
Justice claims that antitrust laws bar even tacit collusive agreements, which can involve merely a wink and a nod or an informal gentlemans agreement or understanding. Under this standard, the media coverup of Joe Biden s decline could be an antitrust violation.
One irony is that Biden officials threatened big digital platforms with antitrust regulation if they didnt censor alleged misinformation. The Trump DOJ is doing the reverse. Its legal filing threatens platforms with antitrust liability if they take down content for whatever reason because doing so would suppress viewpoint competition.
DOJ cites a concurrence by Justice Clarence Thomas observing that we will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms. According to DOJ, this is such a case. No, its not.
Justices brief looks to be trying to extend the High Courts 1945 precedent Associated Press v. U.S. The Justices then held that APs prohibition on its members selling content to non-members violated the Sherman Act, and that the First Amendment doesnt shield media companies from antitrust liability.
The precedent is inapt, not least because the media landscape then was different with far fewer news sources. The APs alleged antitrust violation also involved discrimination against non-members for commercial reasons rather than viewpoint. The latter is protected by the First Amendment.
DOJ says a courts antitrust analysis can account for impacts on the content, diversity, and quality of news. This would give judges enormous power over speech and the press. Does the Trump team really believe judges should decide what counts as quality news? Its a strange argument that would weaken the First Amendment in the name of expanding speech.
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