Author: Steven Cernak
On July 11, the Department of Justice Antitrust Division filed a Statement of Interest in a private lawsuit alleging anticompetitive collusion among defendants like The Washington Post and with non-defendants like X to suppress certain views on COVID and U.S. politics. DOJ’s move generated unpleasant surprise among some in the antitrust community and beyond; but the move seems consistent with numerous statements by the Administration and its supporters, including the America First Antitrust principles recently outlined by Division head Gail Slater.
Summary of Case and Defendants’ Motion to Dismiss
Children’s Health Defense and several other publishers of original content alleged a group boycott (under both per se and rule of reason analyses) by The Washington Post, BBC, Reuters, and Associated Press from their participation in the Trusted News Initiative. According to the plaintiffs, these participants used TNI to collude with each other and platforms like Facebook, YouTube, and X to remove or suppress plaintiffs’ competing content on COVID and U.S. politics. According to defendants, TNI aimed at ensuring news credibility and combating disinformation.
After the case bounced among several federal courts, defendants filed a motion to dismiss in the District Court for the District of Columbia. That motion gave several grounds for dismissal, including that “suppressing competition in the marketplace of ideas … is not a cognizable antitrust injury.” In support of that proposition, defendants cited several cases involving candidates denied spots in debates or other media coverage that dismissed antitrust claims because there was no “injury to commercial competition.”
DOJ’s Statement of Interest
DOJ took exception to defendants’ claim that suppression of competition in the marketplace of ideas could never amount to an antitrust injury. As is always true in these statements, DOJ weighed in only on that point of law “to attend to the interests of the United States” in the proper interpretation of federal law and took no position on the application of the law to the facts.
DOJ argued that the defendants’ references to cases involving failed political candidates did not apply to claims, like those of plaintiffs here, involving market participants who allegedly suffered competitive harm by having their opportunities to reach potential paying customers reduced. Potential consumers of news also would be harmed because their “individual liberty—and consumer welfare—benefit greatly from viewpoint competition in news markets and can suffer when that competition is reduced.” DOJ cited several Supreme Court antitrust cases involving the news media, especially the 1945 Associated Press case finding antitrust issues with some of AP’s bylaws, to counter any claim that the First Amendment provided defendants with some level of antitrust immunity.
DOJ also equated the presentation of diversity of viewpoints with the quality of a product and noted the numerous cases that found the antitrust laws protect competition in both price and such non-price elements. Finally, DOJ elaborated on the considerations that would go into a rule of reason analysis of an alleged agreement about the restriction of product features versus the potential establishment of product standards.
Why the Surprise?
Many commenters, on social media and elsewhere, were unpleasantly surprised by DOJ’s action. For example, an editorial from The Wall Street Journal on July 18 seemed to misunderstand that DOJ’s statement was only about the legal principles involved, not whether the facts met them, and that no facts had been proven at this dismissal stage. The editorial pushed back on reliance on the 1945 Associated Press case both because the media landscape has changed and AP had boycotted non-members for commercial, not viewpoint, reasons. Again, the editorial seemed to miss that DOJ was asserting that the principles of that 1945 case remained applicable even in the changed media landscape and that DOJ assumed that the plaintiffs here had at least arguably alleged commercial, not just viewpoint, reasons for the defendants’ behavior.
But these kinds of arguments by DOJ should not have surprised anyone listening to DOJ Assistant Attorney General Slater or others in and around the Administration. As this blog covered earlier, Slater’s first speech, outlining what she called America First Antitrust, said DOJ would focus on industries that affected freedom and pocketbook issues, including online platforms. In a quote from that speech included in the Statement, she said “[t]oday’s online platforms . . . control not just the prices of their services, but the flow of our nation’s commerce and communication . . . [and] play a critical role in our digital public square.” Also, when DOJ won the Google AdTech case in April, the quotes from Slater and AG Pam Bondi talked about “encroachments on free speech” and Google’s ability to “censor and deplatform American voices.”
In that first speech, Slater also cited Senators Lee, Hawley, and Grassley as well as conservative commentators Sohrab Ahmari and Oren Cass for similar views. Finally, she quoted Vice President Vance as worrying back in February 2024 about “companies that control the flow of information.” Earlier this month, Vance showed his views had not changed: “Censorship of viewpoints was a major problem, and we needed to get serious about antitrust and we need to get serious about actually treating these companies as the monopolists that they were.”
Conclusion
Many of the initial actions by the Trump Administration antitrust agencies seem to signal loosened antitrust enforcement, such as settlements of merger challenges or decisions not to challenge some large mergers. Also, this Administration has abandoned the regulatory initiatives and general anti-business rhetoric of the prior one. But where antitrust enforcement can help the Administration’s goal to, again quoting Vance, “just [help] normal people to have a good life,” the enforcers have not hesitated to act. Slater’s first speech mentioned DOJ’s successful prosecution of an employer fixing the wages of nurses. Our prior post described other recent DOJ actions against bid-rigging in paving and forest firefighting contracts. While this Statement of Interest is much more creative, it is against an industry and actions that the Administration said would be its focus. It should not have been a surprise.
Image by Gerd Altmann from Pixabay