Antitrust law does not Trump the right to free speech
© Anna Moneymaker

Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsWhite House backs Stephen Miller amid white nationalist allegations The Hill's Campaign Report: Late bids surprise 2020 Democratic field Sessions vows to 'work for' Trump endorsement MORE recently convened an extraordinary meeting of state attorneys general to discuss whether social media companies “may be hurting competition and intentionally stifling the free exchange of ideas." The attorney general’s summons comes on the heels of a presidential tweet accusing social media companies of “totally discriminating against Republican/Conservative voices.” The attorney general’s action, apparently intended to placate the president, is a dangerous misuse of the antitrust laws that undermines the freedoms of speech and press guaranteed by the First Amendment.

The suggestion that any social media company has a monopoly on the dissemination of news is ludicrous. On the internet alone, there are innumerable websites disseminating news, including aggregators like Google News and Yahoo News, subscription websites like the New York Times and the Wall Street Journal, free general news websites like Fox News and CBS News, and websites that explicitly cater to the right or left like Breitbart News and Mother Jones. In addition, of course, people get news from traditional sources like hometown newspapers, magazines and radio.

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Moreover, even a cursory sampling of the websites criticized by the president demonstrates the absence of bias, regardless of how and by whom that subjective term is defined. For example, on the morning I composed this op-ed, the top three news stories featured on Google News were articles from the New York Times on Deputy Attorney General Rod RosensteinRod RosensteinDemocrats ask judge to force McGahn to comply with subpoena Democrats ask court to force DOJ's hand on Mueller grand jury materials Washington celebrates diplomacy — and baseball — at Meridian Ball MORE, from Fox News on Judge Kavanaugh and from the New York Post on a teen who had survived 49 days at sea on a floating fish shack. And the source of the next three articles about Rod Rosenstein, after the New York Times piece, were Fox News and the Washington Examiner.

In short, any claim of monopoly or bias does not even pass the sniff test. And even if a website had a monopoly and was biased, it is protected by the First Amendment in the political news it chooses to disseminate. The freedoms of speech and press guaranteed by the First Amendment underpin our democracy and assure that even newspapers that have monopolies in local markets or websites that avowedly promote conservative or liberal causes can operate free of government intimidation or intrusion.

The attorney general’s threatened use of the antitrust laws as a cudgel to extract more favorable news coverage of the current administration is not only unconstitutional, but dangerous to our democracy. As the Republican Party Platform itself asserts: “Limits on political speech serve only to protect the powerful and insulate incumbent officeholders.”

A current analog to the attorney general’s tactics is Russian President Vladimir Putin’s use of trumped up criminal charges to stifle political dissent in Russia. And, from our own country’s past, they call to mind President John Adams’ use of the Alien and Sedition Laws to discriminate against non-citizens and intimidate opposition newspapers. The ensuing public revulsion was a significant factor in Thomas Jefferson’s victory in the 1800 election, making Adams the only one of the first five presidents not to win a second term in office.

The attorney general’s attempt to hijack the antitrust laws to intimidate the president’s perceived political foes should be of concern to all citizens, not just antitrust lawyers like me. But the first line of defense should be the state attorneys general. As the chief law enforcement officers in their states, they should remind Attorney General Sessions of his obligation to uphold the Constitution and to enforce the laws fairly without regard to political considerations. Even if he is not motivated by principle, the Constitution and the Republican Party platform, he should consider the precedent he’d be setting when inevitably the levers of power are held by a Democratic president and attorney general.    

Houck, a lawyer with Offit Kurman, was formerly Chief of New York State’s Antitrust Bureau and has done legal work for Google.