Previously posted on SSRN.

Abstract

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 is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.

Because the ability of “big tech” to abridge speech lacks constitutional obstacles, an array of 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 a showing of higher prices or restricted output. As such, the courts have largely declared that speech entails noncommercial activity which 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 whereby 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 are alleged to bury information, advertising, and other forms of commercial expression about rival products so as to achieve anticompetitive ends, harming consumers and markets. This Article asserts that enforcement should condemn, in certain instances, the exclusion of commercial information even when consumers enjoy low prices, though resist the emergence of rhetoric calling for the integration of all types of speech — e.g., expressive political, and social — into antitrust’s framework. If antitrust promoted noncommercial speech, it would erode the First Amendment as well as antitrust law.

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