The DOJ and an antitrust case against media companies

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 isn’t very far. Antitrust inquiries depend on facts and evidence. The plaintiffs don’t 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, Children’s 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 don’t 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 virus’s origins—weren’t 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 Department’s “statement of interest.” DOJ isn’t 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 ‘gentleman’s 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 didn’t 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, it’s not.

Justice’s brief looks to be trying to extend the High Court’s 1945 precedent Associated Press v. U.S. The Justices then held that AP’s prohibition on its members selling content to non-members violated the Sherman Act, and that the First Amendment doesn’t 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 AP’s 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 court’s 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? It’s a strange argument that would weaken the First Amendment in the name of expanding speech.