Antitrust, Free Speech and Google

By Mark Epstein, Wall Street Journal

Donald Trump’s 2016 campaign promised to use antitrust law against oligopolies it said were “destroying an American democracy that depends on a free flow of information and freedom of thought.” The Justice Department’s investigation of Google may appear to fulfill this pledge. But Makan Delrahim, who heads the antitrust division, has voiced skepticism.

In a 2018 address, he rejected the notion that “antitrust enforcers should step beyond consumer welfare and think about . . . values like the free speech the First Amendment protects.” He worried it would lead to subjective enforcement because “Republican and Democrat prosecutors, or those of any party or political orientation, carry with them their own perceptions of what is good and bad for our democracy.”

Yet platform neutrality isn’t a strictly partisan issue. When Facebook temporarily blocked Democratic Sen. Elizabeth Warren’s campaign ad in March, she tweeted: “I want a social media marketplace that isn’t dominated by a single censor. #BreakUpBigTech.” Her Republican colleague Ted Cruz agreed: “She’s right—Big Tech has way too much power to silence Free Speech.”

The Justice Department does have authority to consider how Google’s dominance affects the marketplace of ideas, and federal prosecutors routinely make decisions with partisan policy implications when enforcing campaign-finance, election-fraud, and voting-rights laws. Even in the antitrust context, regulators must consider viewpoint diversity in cable and broadcast mergers.

Special statutes apply to these industries, but there is also precedent to address similar concerns under the broader antitrust laws. In Associated Press v. U.S. (1945), the Supreme Court held that the Sherman Antitrust Act of 1890 complemented the First Amendment, which “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Antitrust law has evolved since Associated Press to focus solely on consumer welfare. But as Maureen Ohlhausen, then a member of the Federal Trade Commission, argued in 2016, the consumer-welfare standard applies to “values like openness and free speech” because “consumers care about a host of qualities for Internet access, not just price.”

Thus the Justice Department may consider whether Google uses its dominance to reduce consumer choice. Many startups, for instance, attempt to compete against big tech by offering less-moderated content. As Google-owned YouTube enacted content guidelines, some creators and viewers moved to freer platforms such as BitChute and DTube. Antitrust enforcers could use the welfare standard to evaluate whether Google used its dominance in the search or mobile operating system market to exclude these competitors.

Antitrust law isn’t a panacea, and the department should avoid getting caught in the partisan bickering over fake news and censorship that consumes most congressional hearings on Silicon Valley. Whether Google abuses its market dominance in search, online advertising, and mobile operating systems is a question that directly affects consumers and worries Democrats and Republicans alike.

Mr. Epstein is an antitrust attorney and freelance writer.

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