The Department of Justice Just Sided with RFK Jr. Group's Claim That News Orgs Can't Boycott Misinformation
Applying antitrust statutes to alleged publisher boycotts doesn’t protect free speech. It does the opposite.
The Children's Health Defense (CHD), a nonprofit founded by Robert F. Kennedy Jr. to end "childhood health epidemics by eliminating toxic exposure," submitted an antitrust complaint against The Washington Post, the BBC, the Associated Press, and Reuters in January 2023. On Friday, the Justice Department published a statement of interest in favor of the CHD, which implores the federal court hearing the case to recognize that harm to viewpoint competition is grounds for antitrust prosecution.
In the case, Children's Health Defense v. Washington Post, the CHD alleges that the defendants violated federal antitrust law through their establishment of the Trusted News Initiative (TNI) shortly before the COVID-19 pandemic. The complaint claims that the TNI formed a "group boycott" to exclude publishers of "misinformation" partially or entirely from popular internet platforms such as Facebook, YouTube, Twitter, Instagram, and LinkedIn.
The complaint cites a March 2022 statement by Jamie Angus, senior news controller at BBC, who said "the real rivalry now is…between all trusted news providers and a tidal wave of unchecked [reporting] that's being piped out mainly through digital platforms," as evidence of "the economic self-interest behind the TNI's group boycott [and] the anti-competitive purpose and effect of that boycott." CHD misconstrues the meaning of Angus' words in an attempt to persuade the court that the TNI is a "horizontal agreement among competitor firms to cut off from the market upstart rivals threatening their business model."
CHD alleges that TNI's restrictions are unreasonable not only because they "collusively reduce output" and "lower product quality"—conventional indicators of illegal collusive behavior—but because "they suppress competition in the marketplace of ideas." Assistant Attorney General Abigail Slater of the Justice Department's Antitrust Division is running with CHD's argument.
Slater said that the "Antitrust Division will always defend the principle that the antitrust laws protect free markets, including the marketplace of ideas," in a press release. In the department's statement of interest, Slater references the majority opinion from U.S. v. Associated Press (1945) to argue that "right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection."
Joseph Coniglio, director of antitrust and innovation policy at the Information Technology and Innovation Foundation, agrees with Slater that "collusive viewpoint restrictions can be antitrust violations." However, he emphasizes that, "if the platforms allegedly taking down content are not defendants and don't have vertical agreements with…TNI to do so, it's hard to see how the latter could be illegal." (CHD alleges that censorship "by Facebook, Google and Twitter, [caused] damages to date of over $1,000,000," but does not name these platforms as defendants in its suit.)
Slater's statement was submitted amid ongoing litigation between Media Matters and the Federal Trade Commission (FTC), the other federal antitrust enforcement agency. The FTC opened an investigation into Media Matters in May for facilitating an alleged advertising boycott against the social media platform X. Advertising holding companies Omnicom Group and Interpublic Group of Companies agreed not to enter into "any agreement or practice that would steer advertising dollars away from publishers based on their political or ideological viewpoints" as a condition of their merger settlement with the FTC in June. Media Matters has challenged the FTC's probe into its operations on First Amendment grounds.
The Constitution respects Americans', including publishers', freedom of speech even when they're abusing that freedom. The Washington Post is entitled to persuade platforms to deplatform content that it considers to be factually incorrect, misleading, or for no reason at all. While the plaintiffs may have been wrong to suppress unpopular opinions, they still retain their First Amendment shield against antitrust prosecution.