What Times-Picayune Tells Us About the Antitrust Analysis of Attention Platforms

Times-Picayune, a 1953 Supreme Court decision involving newspapers, has gained notoriety from the Court’s American Express decision concerning credit-card networks. The Amex dissent argued that the Court had already decided how to apply the rule-of-reason analysis to two-sided platforms in Times-Picayune, and got it right then, but got it wrong in Amex. Times-Picayune is a shaky foundation for that proposition. In that case, the Government had alleged per se tying involving advertising and monopolization of the dissemination of news and advertising. By the time the case reached the Supreme Court it was mainly about per se tying, and didn’t pose the particular two-sided issues that concerned the Court in Amex. After dismissing the per se tying claim, the Court provided a short rule-of-reason analysis which is consistent with considering the newspaper platform overall, and not just one side. In particular, the lower court had analyzed the Government’s predation claims for the newspaper by considering the platform in its entirety, and the Court relied on its conclusion.

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