Monopolizing Free Speech
By Gregory Day
The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas.
Because “big tech’s” ability to abridge speech lacks constitutional obstacles, many litigants, politicians, and commentators have recently begun to claim that the act of suppressing speech is anticompetitive and thus should offend the antitrust laws. Their theory, however, seems contrary to antitrust law. Since antitrust is intended to promote consumer welfare in commercial markets, antitrust liability is typically reserved for firms that have harmed consumers economically. This generally requires showing higher prices or restricted output. As such, the courts have largely declared that speech entails noncommercial activity antitrust has no authority to govern, despite the emergence of rhetoric and lawsuits seeking to do just that.
This Article argues that, contrary to precedent, antitrust law can and should promote commercial speech. The economy has evolved such that firms and consumers depend on information, ideas, and speech even when traded at zero prices—known as the “information economy.” In turn, technology firms encounter incentives to suppress types of commercial speech and, when wielding market power, the ability to do so. For example, Apple and Google allegedly bury information, advertising, and other forms of commercial expression about rival products to achieve anticompetitive ends, harming consumers and markets. This Article asserts that in certain instances, enforcement should condemn the exclusion of commercial information even when consumers enjoy low prices while resisting the emergence of rhetoric calling for the integration of all types of speech—e.g., expressive, political, and social speech—into antitrust’s framework. If antitrust promoted noncommercial speech, it would erode the First Amendment as well as antitrust law.