Speech, Innovation, and Competition

Observers contend that concentrated power in digital markets threatens free speech. At the root of this anxiety is that private companies have accrued unprecedented control over the flow of information, turning free speech into an emerging antitrust issue. Support for increasing antitrust enforcement in the marketplace of ideas has notably come from politicians, litigants, popular commentators, and even the Department of Justice. The obstacle is that courts have so far been hostile to antitrust lawsuits intended to promote free speech. This contribution explores whether antitrust should foster free speech given the emerging challenges of digital markets. It finds that the economic value of ideas and speech in the information age requires a reexamination of antitrust’s consumer welfare standard, though the enterprise should resist promoting political, social, and other forms of non-commercial expression.

By Gregory Day¹

I. INTRODUCTION

Critics contend that concentrated power in digital markets has generated threats to free speech. For a variety of reasons, market power is naturally thought to concentrate in digital markets. The consequence is that “big tech” is said to face little competition; Facebook controls 72 percent of the social media market² while the parent of YouTube (72 percent of the video market)³ is Google (92 percent of the search market).⁴ This landscape has potentially vested private companies with unprecedente