Antitrust and Collusion on Regulating Misinformation: Thoughts on the DOJ’s Statement of Interest
The U.S. Justice Department (DOJ) Antitrust Division filed a statement of interest late last week in a private antitrust case brought against a number of major news publishers by, among others, the Children’s Health Defense—the organization previously chaired by U.S. Health and Human Services Secretary Robert F. Kennedy Jr.
Nominally, the DOJ’s statement can be distinguished from an amicus brief filed on behalf of or in support of a party, and the department is careful to note that it “takes no position on the application of the law to the facts alleged in Plaintiffs’ complaint or on the resolution of Defendants’ motion.” Still, there is no mistaking the fact that the DOJ’s statement is supportive of the plaintiffs.
This marks the agencies’ latest foray into issues at the intersection of antitrust and content moderation (or, as some FTC statements would have it, private “censorship.”) Our prior ruminations in this space were motivated by, e.g., the Federal Trade Commission’s (FTC) Feb. 20 request for comments on “technology platform censorship” and informal comments by FTC Chairman Andrew Ferguson (here and here). And the DOJ’s statement was preceded, if only barely, by its statement of intent to file the statement and by relevant remarks on “product fixing” by Deputy Assistant U.S. Attorney General Dina Kallay, who is also an FTC veteran.
Having spilled a fair amount of ink on the intersection of antitrust and speech, we read the statement and the plaintiffs’ complaint with great interest. Below, we offer some initial thoughts. Spoiler alert: this may be the strongest of these recent agency forays onto a hazy field of battle; but that’s not to argue that it isn’t, as the kids say, “problematic.”