News that the Justice Department is investigating five major networks for suspending the White House TV pool last month was met with outcry that it was another example of Trump administration retaliation against the media.
Alarming as it may be to First Amendment groups, among antitrust experts, there are doubts that the DOJ would have much of a case.
Section 1 of the Sherman Antitrust Act restricts competitors that restrain competition. In this case, the five networks that make up the TV pool — CNN, Fox News, ABC News, CBS News and NBC News — last month withheld their participation to protest the White House’s exclusion of CNN. For about four days, that meant fewer video images and other coverage of Trump that week, including the ceremonies surrounding the visit of Chinese President Xi Jinping.
William Kovacic, global competition professor of law and policy at George Washington University, said, “I think you have to take any lawsuit from the Department of Justice seriously.”
But he said an antitrust claim against the networks likely would have a “very remote prospect of success.”
At issue is “what is the predominant character of the behavior: Is it a commercial interest or is it designed to achieve some form of First Amendment expression?”
“To me, if there is a commercial aim to this, it is well hidden,” said Kovacic, a former chairman of the Federal Trade Commission.
Diana Moss, vice president and director of competition policy at the Progressive Policy Institute, said via email, “Group boycotts are illegal when they stifle competition, such as forcing a competitor(s) out of the market.”
She added, “Presumably, the arrangement among the five networks is designed to increase coordination and efficiency in the distribution of news footage. There is no anti-competitive intent or effect. The networks were responding in solidarity to repression of a free press (1st Amendment).”
Court Precedence
The lines between commercial conduct and protected First Amendment activity can be blurred, but courts have sided with boycotting parties even then.
Sam Weinstein, professor at Cardozo School of Law and former attorney in the DOJ’s Antitrust Division, said that “typically a non commercial boycott is protected by the First Amendment.”
“It would seem to be a non starter,” he said.
He cited the Supreme Court’s 1982 decision in NAACP vs. Claiborne Hardware Co., involving an organized 1960s-era boycott of white-owned businesses in Mississippi. The justices held that the state could not hold the protesters liable for damages when they engage in lawful activity protected by the First Amendment.
Weinstein also referred to another Supreme Court case, FTC vs. Superior Court Trial Lawyers, when the justices ruled that a boycott by court-appointed lawyers for indigent defendants violated antitrust law, as its purpose was to to gain increased compensation. The majority compared it to horizontal price fixing.
The latter case, Weinstein said, is different from what happened with the TV pool. Prices and compensation were not at issue.
It’s still unclear whether the networks will comply with the DOJ investigative request, but the networks already made it clear that they were jointly suspending participation in the pool, releasing a statement that “no administration should restrict a news organization because it objects to its reporting.”
“The real question is a question of law, not a question of fact,” Weinstein said.
In a statement, a spokesperson for the DOJ said over the weekend, “Members of the television press pool have boycotted covering White House events. Group boycotts among commercial competitors can violate the Sherman Act. The Antitrust Division is simply investigating to determine whether these news organizations have violated the antitrust laws.”
“An End Run Around”
Democrats already have accused the Trump administration of politicizing the Antitrust Division, violating the norms that have separated the White House from the DOJ since the Nixon era. The investigation of the networks is likely to add another example to their arguments.
Bob Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, said via email, “Threatening an antitrust investigation is just another example of this Administration misusing regulatory authority to punish the media for doing something the President dislikes. Political boycotts are part of a longstanding American tradition and are protected under First Amendment law.”
He added, “Whether the government’s excuses are dressed up as ‘national security’ or antitrust law, this is another attempt by the Administration trying to make an end run around the First Amendment to control news coverage.”