The consumer welfare standard has been the lodestar of antitrust policy for decades.  Yet after the election of President Joe Biden and rise of the Neo-Brandeisian movement, the Department of Justice and the Federal Trade Commission often dismissed the consumer welfare standard and instead attempted to use antitrust to achieve other progressive societal goals such as “diversity, equity and inclusion” (DEI) or labor protection.  Traditionalists argued that this deliberate abandonment of antitrust norms did more harm than good.

But what does the re-election of President Donald Trump bode for non-economic uses of antitrust?  Given the Neo-Brandeisians’ gleeful destruction of antitrust norms, will the new Administration respond in kind by also abusing antitrust to achieve their own preferred political goals?

An early sign that we may not be returning to traditional antitrust norms is President Trump’s call for the DOJ and FTC to use antitrust to curtail “Big Tech censorship.”  Perhaps the most comprehensive articulation to date of how this crackdown might play out can be found in then-FTC Commissioner Andrew Ferguson’s concurrence in the case of FTC v. 1661, Inc. d/b/a GOAT (December 2, 2024).  As President Trump has now appointed Commissioner Ferguson to chair the FTC given his “proven record of standing up to Big Tech censorship,” Ferguson’s arguments deserve some attention.

According to Ferguson, the DOJ and the FTC have a mandate to “vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly.”  To do so, Ferguson offers two areas where the government should focus its enforcement: (1) prosecuting “any unlawful collusion between online platforms” regarding content moderation policies (a view shared with fellow Republican Commissioner Melissa Holyoak); and (2) confronting “advertiser boycotts which threaten competition among those platforms.”

As to his unlawful collusion hypothetical, Ferguson starts with the fundamental proposition that, other than Elon Musk’s X, there are no “suitable free-speech-respecting substitutes to … censorious platforms.”  Pointing to the record in the Supreme Court’s ruling in Murthy v. Missouri last term, Ferguson then accuses digital platforms of “censorship collusion” and “conspir[ing] on censorship policies.”  Although the extensive discovery in that proceeding did not prove that digital platforms coordinated content moderation policies with each other, Ferguson nonetheless maintains that “digital platforms colluded amongst each other to set shared censorship policies” and thus that such conduct is “tantamount to an agreement not to compete on contract terms or product quality” in violation of the Sherman Act.

As to advertiser boycotts, Ferguson argues that such boycotts could qualify as “[c]oncerted refusals to deal” which “are illegal under the Sherman Act.”  And in his view, such illegal advertiser boycotts run rampant in the tech space.

Ferguson provides two anecdotes to support his argument. 

As Exhibit A, Commissioner Ferguson points to the mass exodus of advertisers from Twitter (now X) shortly after it was purchased by Elon Musk (although press reports indicate these advertisers have largely returned).  X alleged that this mass advertiser exodus was concerted and was facilitated by the World Federation of Advertisers’ Global Alliance for Responsible Media (GARM) initiative, a self-described coalition of “marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”  After X sued GARM under the antitrust laws and the initiative received some unflattering scrutiny from Capitol Hill, GARM ceased operations in the summer of 2024 (although according to press reports some of this litigation remains ongoing).

As Exhibit B, Ferguson points to a company called NewsGuard.  Among the products it offers, NewsGuard produces news reliability ratings that are developed by “a team of expert journalists [that] rate and review the reliability of news sources across the open web, social media, and content platforms based on a set of apolitical criteria of journalistic practice.” NewsGuard also sells a product called “NewsGuard for Advertising” that “enables brands to confidently advertise on quality news sources—while avoiding wasteful spending on made-for-advertising sites (MFAs), AI content farms, misinformation, and low-quality content.”  Ferguson maintains that given its popularity in the market, if a “website gets a poor rating on NewsGuard’s ‘nutrition label,’ it can choke off the advertising dollars that are the lifeblood for many websites—including platforms on which millions of Americans every day speak their minds.”  Ferguson’s beef is that NewsGuard “seems to give a free pass to deceptive and biased news coverage by major left-leaning outlets,” even though he concedes that “NewsGuard is, of course, free to rate websites by whatever metric it wants.”

But the Trump Administration may find that using antitrust to curtail “Big Tech censorship” is complicated.  Not only does this policy objective raise significant questions about the appropriate role (and powers) of antitrust law, but the First Amendment comes into play any time the government puts its thumbs on the scale about what speech is or is not acceptable.  While this interplay between these areas of jurisprudence will no doubt dominate the legal debate over the next several years, there are some obvious intellectual conflicts with Chairman Ferguson’s arguments that come immediately to mind.

First, similar to efforts to treat digital platforms as “common carriers” just like the old Ma Bell telephone monopoly, Ferguson is trying to use a statutory regime expressly designed to focus on economic conduct—i.e., the antitrust laws—to regulate the speech of private actors.  The Sherman Act focuses on “restraint[s] of trade or commerce” and the monopolization of “any part of the trade or commerce”; Clayton Act Section 7 and Section 5 of the FTC Act focus on activity and practices in or affecting commerce.  Under the plain reading of these statutes, using the antitrust laws to govern private speech falls clearly outside of the DOJ’s and FTC’s statutory mandate.

Indeed, if the new goal of antitrust is to mitigate “Big Tech censorship,” then what is the economic harm to be remedied?  As Neil Chilson and Casey Mattox explained in 2020, the “fact that consumers do not get exactly what they say they want from the market with respect to free expression does not mean the market has failed or lacks competition.  In fact, few consumers get exactly what they want in any context.”  So if the government uses antitrust tools to shape online speech to match the views of the President, other politicians, or the regulators themselves—untethered to a tangible economic harm—then we could end up with less speech, not more.

Second, Ferguson’s recital of the facts accords poorly with the record in Murthy. 

Ferguson alleges that the record in Murthy revealed that digital platforms engaged in some sort of concerted action to collude on content moderation policies.  Yet the record revealed the exact opposite: the district court specifically found that the evidence showed that the “social-media companies cooperated [with the Biden Administration] due to coercion, not because of a conspiracy.” (Emphasis supplied.)  This government pressure on digital platforms (including threats of aggressive antitrust litigation, other economic regulation, and Section 230 reform) was not lost even on the dissenting Justices in Murthy, who noted that while the Biden Administration’s jawboning of digital platforms was “subtle” (as opposed to “ham-handed”), the government’s actions were still “coercive,” “dangerous,” and “unconstitutional.”  (Even President Trump recognized that digital platforms did not engage in any form of collusion but were subject to inappropriate jawboning by the government in his Executive Order entitled “Restoring Freedom of Speech and Ending Federal Censorship” that he signed on his first day in office.)  Nonetheless, given the “vast power” of the administrative state, the digital platforms did not sue the government for violating their First Amendment rights, apparently believing that it just wasn’t worth it to fight City Hall (hence the problem of the petitioners’ lack of standing in Murthy).

Most importantly, it is not the job of either the FTC or the DOJ to judge which digital platforms do or do not have politically acceptable content moderation policies.  As the Supreme Court recognized last term in Moody v. NetChoice, the First Amendment “does not go on leave when social media are involved.” Indeed, noted the Court, “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

That point also applies to Chairman Ferguson’s advertising boycott argument.  He is correct that if a bunch of firms deliberately colluded against a rival with the specific intent of driving it out of business to allow them subsequently to raise price and restrict output, then such conduct would probably violate the antitrust laws.  (Cf. FTC v. Superior Court Trial Lawyers Ass’n., 493 U.S. 411 (1990).)  However, what if a firm refuses to do business with another firm as a matter of conscience because they do not like the values or views of that firm?  Such action is not anticompetitive conduct, but the very definition of freedom of expression.  (See, e.g., NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).) 

Like it or not, antitrust law does not recognize a duty to deal with competitors—much less recognize a duty to deal with people who one might find personally abhorrent.  As the U.S. Court of Appeals for the Ninth Circuit explained in detail in FTC v. Qualcomm, 969 F.3d 974 (9^th Cir. 2020), in the years since Terminal Railroad the Supreme Court has repeatedly emphasized that:

the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.”  This is because the antitrust laws, including the Sherman Act, “were enacted for ‘the protection of competition, not competitors.’” Or, as we recently put it, in a bit more colorful terms: “Competitors are not required to engage in a lovefest.” (Emphasis in original.)

Imposing a duty to deal with people whose speech one finds distasteful also runs into serious First Amendment issues.  Justice Brett Kavanaugh, writing for the majority in Manhattan Community Access Corp. v. Halleck, 587 U.S. 802 (2019), reminds us that “text and original meaning … , as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech.  The Free Speech Clause does not prohibit private abridgment of speech.” (Emphasis in original.)  And as Justice Neil Gorsuch noted for the majority in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023):

[A]biding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive, misguided, or even hurtful.”  But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.

These core constitutional principles don’t go out the window when antitrust enters the room, yet it is notable that a sitting government official is openly threatening to do so.  Not only do such public threats raise significant due process questions about the ability to get a fair hearing (echoes of Lina Khan’s suit against Amazon immediately come to mind), but a reasonable argument can be made that similar threats were a key tool of the Biden Administration’s much-criticized jawboning exposed in Murthy. 

Prior to the bait-and-switch appointment of Lina Khan as Chair, the FTC enjoyed an excellent bipartisan reputation for dispassionately enforcing the relevant competition and consumer protection laws and following the facts.  Yet Khan quickly ruined the Commission’s reputation, violating basic due process to achieve her political ends even as morale at the once-respected agency plummeted.

To his credit, along with fellow Republican Commissioner Melissa Holyoak, Ferguson repeatedly has called out Khan’s overreaching. For example, in the recent Grubhub settlement, he agreed with the consumer protection claims against the company, but dissented against the unfair method of competition count.  He noted that even assuming the majority’s dubious standard for an unfair methods of competition violation—that the “conduct tends to negatively affect competitive conditions”—the FTC “still must allege enough about markets, competitors, and behavior to establish a tendency toward negative competitive effects.  The [Grubhub] complaint is utterly silent on any of this.”

To ensure a successful chairmanship, perhaps Chairman Ferguson should focus on righting the ship and distance himself from his predecessor’s proclivities of pursuing politically-motivated (and unconstitutional) goals outside the scope of the FTC’s statutory authority.  But with the recent announcement that the FTC has launched a Request for Public Comment Regarding Technology Platform Censorship, it unfortunately appears that there will be little practical difference between the Biden and Trump Administrations at the Commission.

Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance and social and economic conditions, with a particular emphasis on the law and economics of the digital age.