In a surprising move, the U.S. Justice Department’s (DOJ) Antitrust Division has thrown its weight behind a lawsuit that could reshape how courts—and antitrust enforcers—think about competition in digital media. The agency’s statement of interest filed last month in Children’s Health Defense v. Washington Post doesn’t merely take up the legal merits of a questionable claim, but signals a distinct philosophical shift, with the DOJ now arguing that the Sherman Antitrust Act can and should protect “viewpoint diversity” in news markets.
This is a dangerous turn. If accepted, the theory would transform the Sherman Act into a regulatory tool for adjudicating ideological disputes, exposing publishers and platforms to antitrust liability for “suppressing” dissenting views. That’s not competition law; it’s compelled distribution masquerading as enforcement. As the Wall Street Journal’s editorial board rightly put it: “curating information is now an antitrust violation.”
Moreover, the risk isn’t merely legal overreach; it’s the weaponization of antitrust law to regulate speech, editorial judgment, and private standards-setting under the guise of competition enforcement.
The Lawsuit: From Disinformation to Conspiracy
Filed by Children’s Health Defense (CHD)—the organization previously chaired by U.S. Health and Human Services Secretary Robert F. Kennedy Jr.—and several “alternative” media outlets, the underlying lawsuit targets major news organizations (including the Washington Post, BBC, Reuters, and the Associated Press) for their participation in the Trusted News Initiative (TNI). TNI was a cross-platform effort initially aimed at curbing COVID-19 misinformation, but which later expanded to address political disinformation, including content related to election integrity and other controversial issues.
The plaintiffs claim that TNI functioned as a horizontal conspiracy to suppress “non-mainstream” news sources—especially those promoting anti-vaccine or lab-leak narratives during the pandemic—from being able to access dominant internet platforms like YouTube, Facebook, and Twitter.
Invoking Northwest Wholesale Stationers Inc. v. Pacific Stationery Printing Co. and Associated Press v. United States, they argue that TNI amounted to a classic group boycott, in violation of Section 1 of the Sherman Act, in which the defendants used their influence over the platforms to “cut off access” to essential distribution markets. The crux of the complaint is that, by coordinating standards for misinformation and working with platforms like Facebook, Google, and Twitter (none of which are defendants), TNI suppressed competitive speech on matters of public concern, particularly pandemic-related claims.
The complaint is colorful and sprawling—more a political tract than a competition pleading. It offers no plausible product-market definition, fails to establish market power, and essentially equates deplatforming with market exclusion. Until July, few legal observers took the case seriously, and most expected the suit to be dismissed on standard Twombly grounds. The defendants moved to dismiss, arguing (correctly) that there was no plausible product market, no price effect, no proof of market power, and no standing to assert antitrust injury.
The case looked destined for the procedural graveyard. But then the DOJ Antitrust Division showed up.
The DOJ’s Statement: ‘Viewpoint Competition’ as Antitrust Harm
The DOJ filing insists that suppressing “diverse perspectives” in news markets may itself be a restraint of trade, actionable under Section 1 of the Sherman Act, and explicitly supports the viability of “viewpoint diversity” as a dimension of nonprice competition. The DOJ is careful to note that it “takes no position on the application of the law to the facts alleged in the Plaintiffs’ complaint or on the resolution of Defendants’ motion.”
But even if procedurally modest, the filing endorses a substantive theory that risks blurring the line between editorial coordination and anticompetitive conduct. According to the filing:
The Sherman Act protects all dimensions of competition, including competition in information quality.
[T]he diversity, quality, and availability of perspectives in the relevant news markets are allegedly key dimensions of competition.
Elimination of competition in news content can constitute an unreasonable restraint of trade.
News consumers desire and demand diverse perspectives. Americans therefore vitally depend on viewpoint competition in the marketplace of ideas to limit the abuse of market power and ensure the free flow of information in our democracy.
The statement of interest cites Associated Press v. United States and FTC v. Indiana Fed. of Dentists to argue that antitrust law looks not just at price or output, but also reaches agreements to restrict product features, such as information flow or diversity of views. The DOJ thus characterizes ideological diversity as a form of product differentiation, akin to quality or innovation, and posits that suppressing “diverse and antagonistic sources” may constitute an antitrust injury—even when the conduct involves no price fixing, no exclusive dealing, and no foreclosure in the traditional sense. Indeed, the DOJ implies that it may amount to a per-se violation or, at minimum, a cognizable harm under the rule of reason.
In this telling, the TNI becomes something like an industry cartel—its members fixing not prices, but “truth.”
Problems with the DOJ’s Theory
This argument may be bold, but it is deeply flawed.
In their recent Truth on the Market post on the subject, Ben Sperry and Daniel Gilman offer a measured reading of the DOJ’s statement of interest, noting its limited procedural ambition and its plausible alignment with antitrust precedent on nonprice competition. But while they are right to raise concerns about standing and the potential First Amendment overhang, I would argue that the deeper risk lies in how “quality” and “diversity” are being used interchangeably in the DOJ’s theory. Antitrust may tolerate some degree of qualitative analysis, but importing viewpoint pluralism wholesale into competition doctrine represents a much more radical shift.
The attempt to graft “viewpoint diversity” onto the consumer welfare standard risks serious distortions, blurring the lines between editorial discretion and economic coordination. There are at least three concerns:
Detaching Antitrust from Consumer Welfare
The consumer welfare standard—long the bedrock of U.S. antitrust law—is under growing tension. The so-called “neo-Brandeisians” have called for added focus on fairness, labor, and firm-size risk, which critics argue dilutes the core economic principles of antitrust. Meanwhile, enforcement agencies have increasingly signaled a departure from traditional consumer-welfare-centric approaches, favoring more structural or noneconomic considerations (see here).
Expanding this shift to encompass expressive diversity introduces a wholly distinct set of policy values. Consumers may well desire diverse viewpoints, but “diversity” in this context is not easily priced, nor is it the sort of measurable nonprice output traditionally used to assess anticompetitive harm. Ideological disagreements, however vigorously held, are not substitutes for empirical evidence of foreclosure or market power.
The DOJ’s brief is long on First Amendment rhetoric, invoking Justice Oliver Wendell Holmes’ “marketplace of ideas,” but short on economic grounding. The theory that consumers are harmed by “reduced viewpoint competition” lacks any empirical support. What’s the marginal consumer surplus of a deplatformed RFK Jr. livestream?
As the Wall Street Journal put it, the DOJ’s theory “would transform competition law into a government tool for adjudicating speech disputes between rival media outlets.”
Collapsing Editorial Judgment into Market Coordination
TNI participants allegedly shared misinformation alerts and adopted voluntary standards for demoting false or misleading content. But this looks much more like protected editorial discretion than coercive market behavior. Courts have long warned against conflating shared judgment with concerted action (Bell Atlantic v. Twombly).
It’s not clear from the DOJ’s filing what kind of coordination it would consider to qualify as illegal. The TNI involved information sharing without formal enforcement power, and it did not exclude anyone from a physical-distribution network. The platforms, which are not defendants, acted independently based on their terms of service. To turn such arrangements into per-se group boycotts is to jettison decades of case law distinguishing vertical and horizontal conduct, and lawful standards from anticompetitive agreements.
Indeed, the Supreme Court has repeatedly warned that private entities do not violate the First Amendment by exercising editorial discretion—even when they do so collectively. Editorial judgment, even bad editorial judgment, is not an antitrust harm.
Moreover, as Sperry and Gilman also note, embedding viewpoint diversity into antitrust analysis invites courts to adjudicate contested political speech under the guise of economic harm. This approach risks inviting judges to determine what counts as “legitimate discourse” versus “misinformation”—a function entirely alien to the aims of competition law, and in deep tension with First Amendment values. The enforcement of antitrust law should not hinge on whether enforcers (or courts) find a speaker’s views objectionable or fringe. Such an approach risks not only doctrinal confusion but also the erosion of the constitutional firewall that protects editorial autonomy from state interference.
There is also a deeper structural concern. The First Amendment draws a bright line between private and public action. The entire point of the state action doctrine is to prevent constitutional speech guarantees from being misapplied to private conduct. As the Supreme Court reaffirmed in Manhattan Community Access Corp. v. Halleck, the Free Speech Clause “does not prohibit private abridgment of speech.”
The DOJ’s theory threatens to reverse that logic. If antitrust enforcement penalizes publishers for failing to carry certain viewpoints, it would not merely blur the line, but transform state power into an instrument of compelled neutrality. That is a profound shift. As the Court held in Miami Herald Pub. Co. v. Tornillo, the government cannot mandate editorial balance—not even in the name of fairness or access. Nor can it, under the guise of competition law, punish disfavored editorial alignments as if they were price-fixing cartels.
Furthermore, to the extent that the DOJ’s theory would subject publishers to antitrust scrutiny for declining to amplify or distribute certain viewpoints, it raises serious constitutional questions.
Institutional Overreach and Risks of Constitutional Conflict
The DOJ Antitrust Division has been historically reluctant to intervene in the editorial or expressive realms. The statement of interest risks opening the door to lawsuits whenever news organizations agree to discredit, marginalize, or deemphasize certain kinds of content. That’s a recipe for political weaponization, and further undermines the distinction between antitrust enforcement and the regulation of speech.
The DOJ isn’t the only agency threatening to use competition law as a cudgel to force the carriage of speech disfavored by the platform. The FTC has also launched an inquiry into so-called “Big Tech censorship,” exploring whether content-moderation practices may violate antitrust or consumer-protection laws. The agency has invited public comments from users who feel they’ve been deplatformed or shadow-banned, and its leadership has suggested that digital platforms may be “bullying” their audiences.
Even if politically motivated, such efforts represent an institutional shift—extending antitrust scrutiny into areas traditionally governed by editorial discretion. They underscore how enforcement agencies—even those with a consumer-protection mandate—are now actively engaging in speech-adjacent oversight, intensifying the concern over regulatory overreach.
The DOJ’s filing acknowledges the Court’s opinion in Associated Press v. United States, but sidesteps its critical First Amendment holding that antitrust law prohibits “combination[s] to keep others from publishing,” but not private judgments about truth or reliability. Holding platforms or publishers liable for declining to amplify certain claims (e.g., vaccine skepticism) brushes uncomfortably close to compelled speech. As the Wall Street Journal editorial board rightly warned: “Forcing publishers to platform opposing views at antitrust gunpoint would be a frontal assault on editorial freedom.”
A Better Approach: Distinguishing Platform Power from Editorial Choice
To be sure, the digital-news economy raises novel antitrust questions. Platforms can and do exercise gatekeeping power with significant economic effects. But the Sherman Act is not an appropriate tool to punish coordination among publishers who seek to define and elevate certain standards of accuracy. If anything, it would chill legitimate efforts to combat falsehoods, encourage strategic litigation by aggrieved speakers, and entangle the courts in epistemic disputes.
If the DOJ’s antitrust leadership is genuinely concerned about gatekeeping in digital markets, there are more coherent ways to engage. A valid case might involve vertically integrated platform conduct (e.g., Google disadvantaging news rivals through self-preferencing), or exclusionary conduct tied to advertising markets.
But the CHD case isn’t about market foreclosure. It’s about speech, reputation, and whether “establishment” media can coordinate around standards. To treat that as an antitrust violation is to invite endless litigation from every demonetized YouTuber or deboosted blogger claiming to represent a “competing viewpoint.”
The DOJ’s filing is no ordinary amicus brief; it signals a major shift in enforcement posture. Whether the courts will follow remains to be seen. But if viewpoint “collusion” becomes the next frontier of antitrust enforcement, it may be time to revisit first principles.
With that said, the plaintiffs’ own theory also warrants scrutiny. If the DOJ’s filing risks entangling antitrust enforcement with editorial discretion, the complaint doubles down with a doctrinal overreach of its own.
Problems with the Complaint’s Group-Boycott Theory
While the DOJ’s theory of harm is problematic, the complaint’s account of a per-se unlawful group boycott is no less vulnerable. The plaintiffs frame the Trusted News Initiative as a textbook horizontal conspiracy to exclude rivals, invoking Northwest Wholesale Stationers and Associated Press to argue that TNI members “cut off access” to essential facilities—namely, dominant digital platforms. But this framing stretches both doctrine and fact.
First, the claim that this is a per-se violation ignores decades of doctrinal caution around group boycotts. The Northwest Wholesale Court explicitly limited per-se condemnation to cases involving both dominant group control of a key input and clear exclusionary intent. The TNI’s media participants—The Washington Post, BBC, Associated Press, and Reuters—do not own or control any such input. The platforms that executed the alleged suppression—Facebook, Google, and Twitter—aren’t even named as defendants.
Second, the complaint treats editorial convergence as if it were coercive denial. But there is a material distinction between curating content and blocking market access. Whatever one thinks of the TNI’s quality standards or ideological posture, there is no clear evidence that the media defendants coerced platforms into enforcing them. The allegation is not that AP or the BBC threatened Facebook, but rather that they “shared concerns” about misinformation. That may be norm-shaping, but it’s a long way from group-boycott liability.
Third, the complaint rests heavily on the claim that digital platforms are “essential facilities.” But even if one accepted that premise—which the Supreme Court declined to endorse in Trinko, noting that the essential-facilities doctrine is in tension with antitrust principles—it would still not help the plaintiffs here. The media defendants do not own the “essential” infrastructure. At best, they allegedly influenced its moderators. That is not enough to trigger liability under a doctrine that, even at its peak, required monopolist control and a refusal to deal.
Fourth, even if analyzed under the rule of reason, the complaint fares no better. The plaintiffs offer no plausible market definition or theory of competitive harm beyond a generalized grievance about being excluded from major platforms. They do not allege measurable reductions in output, price increases, or barriers to entry. Instead, they rely on the narrative that their viewpoints were suppressed—a narrative that may raise concerns about fairness or bias, but not necessarily about competition.
Courts evaluating rule of reason claims expect more: evidence of actual or likely harm to the competitive process, not just discontent with content moderation practices (see Ohio v. American Express Co.; FTC v. Qualcomm Inc.; Leegin Creative Leather Prods. Inc. v. PSKS Inc.). Without such evidence, a complaint must fail, regardless of the political sensitivities or expressive character of the underlying dispute.
Finally, the plaintiffs lean on Associated Press as if it were controlling precedent for every case involving editorial coordination. But Associated Press involved direct exclusion from a wire service that held monopoly-like power over news distribution. The TNI, by contrast, involved informal coordination among actors without any contractual or institutional control over the platforms themselves. The analogy is more rhetorical than legal.
Conclusion: Antitrust Is Not a Tool for Content Neutrality
The DOJ’s statement of interest in this case is troubling not because it supports politically unpopular speakers, but because it blurs the line between competition law and speech governance. As in National Society of Professional Engineers v. United States, courts must resist attempts to invoke noneconomic justifications (however noble) for expanding the reach of the antitrust laws.
Ultimately, viewpoint diversity may be a worthy First Amendment ideal, but it is a dangerous foundation for Sherman Act liability. If this becomes the basis of competition policy, the result will not be more diversity—but more litigation, more entanglement, and less clarity about the role of antitrust in a liberal democracy.
