If successful, the DOJ’s position would hobble media’s efforts to fight disinformation.

Just like any market in which competitors sell goods and services, the Department of Justice Antitrust Division argues that the marketplace of ideas, diversity of perspectives, and “viewpoint competition” are subject to antitrust laws.

A pillar of the DOJ’s argument is a 1945 Supreme Court antitrust case that went against the Associated Press, which at the time was blocking competitors from its service. The Associated Press has, once again, found itself as a defendant in a news distribution case, but the facts are fundamentally different.

In 1945 the issue was about restricting competitors’ access to AP’s news service, alleged to be a group boycott of an essential facility — even if that terminology was not used to describe the situation. The case had little to do with the content of AP’s material and much to do with its distribution. The DOJ’s current concern is about multiple news organizations alerting social media platforms about harmful disinformation and thereby blocking viewpoint competition.

DOJ made its argument in a statement of interest in a case originally brought in January 2023 by now-Secretary of Health and Human Services Robert F. Kennedy Jr., the anti-vaccine Children’s Health Defense organization, which Kennedy founded, and a group of alternative media producers, Creative Destruction Media and TrialSite News among them. The plaintiffs say they were deplatformed by mainstream publishers and social media companies because their healthcare and political views were outside the mainstream.

The defendants, The Washington Post, the BBC, the Associated Press, and Reuters, stand by their anti-disinformation efforts and say the case fails to meet any of the requirements of the Sherman Act.

Mainstream media companies, the suit maintains, colluded via the Trusted News Initiative (TNI) to suppress alternative content on Facebook, Instagram, LinkedIn, Twitter, and YouTube. As the defendant publishers put it, though, TNI is a media partnership whose goal is to identify and combat disinformation harmful to the nation’s health, relating to the COVID-19 vaccine, for example, and the democratic process, such as unfounded reports challenging the legitimacy of the 2020 election (Children’s Health Defense, et al. v. Washington Post, et al., No. 1:23-cv-2735-TJK, D.DC).

Alternative Media: Viewpoint Diversity is Critical

The alternative media plaintiffs argue that collusion among the mainstream outlets and social media platforms restricted viewpoint diversity in violation of Section 1 of the Sherman Act. They claim the TNI targeted non-mainstream perspectives, leading to censorship, shadow-banning, and de-platforming of their content. Exclusion from digital platforms was an unreasonable restraint of trade, they say, depriving them of revenue.

“Viewpoint competition,” the plaintiffs maintain, is a critical dimension of the news marketplace, where consumers value diverse perspectives. They argue that antitrust laws protect such competition, ensuring the free flow of information which they say is essential to democracy.

Mainstream Media: Combating Disinformation is Critical

According to their argument, defendant publishers say the TNI involved alerting the social media platforms about misinformation, which then acted independently according to their respective content moderation policies. The news organizations assert that even if their actions harmed the plaintiffs, “These alleged harms are harms to the free expression of viewpoints, like ideas, and therefore fall outside of the purview of antitrust laws.”

In their two-year-old motion to dismiss, the mainstream media defendants argue that the suit fails to meet the legal standards required by the Sherman Act. While the plaintiffs claim the TNI participants acted as a “group boycott” to suppress smaller online news publishers, the complaint lacks sufficient factual allegations, the defendant media companies say. They argue the complaint fails for several reasons:

• Lack of Conspiracy Allegations. Plaintiffs fail to plausibly allege a conspiracy between the defendants and social media platforms to take unlawful action against them. The platforms acted independently.
• Failure to Define a Relevant Market. Plaintiffs fail to establish that TNI members have a dominant position in the alleged “U.S. online news market.” The market is expansive, with numerous competitors.
• No Exclusion from Competition. The plaintiffs continue to publish content on their own websites and other platforms, demonstrating that they are not excluded from the market.
• Procompetitive Justifications. TNI’s alleged conduct has plausible procompetitive justifications, such as enabling platforms to identify harmful disinformation more effectively. The Communications Decency Act protects platforms’ rights to moderate content.
• No Antitrust Injury or Harm to Competition. Plaintiffs fail to allege antitrust injury or harm to competition. “The antitrust laws are designed to protect competition, not competitors.”
• Insufficient Allegations Against Individual Defendants. The complaint lacks specific allegations of actionable conduct by each defendant. “Generic pleading, alleging misconduct against defendants without specifics as to the role each played in the alleged conspiracy, was specifically rejected by [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)].

Antitrust and Non-Price Restraints

The Justice Department cites as inspiration the comments of Associate Justice Clarence Thomas who wrote that digital platforms have too much power. He predicted 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.”

“This is such a case,” the DOJ wrote. “[The mainstream media’s] proposed rule of law exempting viewpoint collusion from the antitrust laws would free major news organizations and dominant digital platforms to block competitive threats that offer alternative, competing viewpoints.”

The DOJ maintains that the Supreme Court has held that agreements among competitors to limit product features—such as the diversity of news content—can violate Section 1. In Associated Press v. United States (326 U.S. 1 (1945)), the court stated, “The widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Conclusion

The 1945 opinion concluded that the Associated Press’s restrictive bylaws, which limited access to news and blocked competitors from joining, violated the Sherman Act. The court rejected the notion that news is exempt from antitrust scrutiny simply because it is a form of expression, the DOJ argues. “Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not,” the court wrote.

However, denying competitors access to information or keeping them from publishing is not the issue in the Children’s Health Defense litigation. It is about alternative media seeking wider distribution of, in some vital cases, “alternate facts,” and news publishers trying to uphold their obligations to report and advocate for, as best they are able, true and accurate information.

Edited by Tom Hagy for Mogin Law LLP.