Viewpoint discrimination isn’t just un-American, it’s unlawful. And thanks to the Antitrust Division of the Department of Justice’s new antitrust doctrine, it’s finally being recognized for what it is: collusion in plain sight.
The DOJ filed a statement of interest in federal court last month, arguing that antitrust laws apply when dominant media firms conspire to suppress dissenting voices. This represents a long-overdue course correction in competition enforcement.
At the center of the underlying lawsuit, brought by a coalition of political commentators and Children’s Health Defense (the nonprofit formerly chaired by Health and Human Services Secretary Robert F. Kennedy Jr.), is the Trusted News Initiative. According to the plaintiffs, legacy media, together with tech platforms, collaborated to suppress or remove disfavored opinions about politically sensitive issues.
The DOJ’s filing calls on the US District Court for the District of Columbia to reject the idea that antitrust law has no role in protecting viewpoint diversity in the press. The DOJ is right—American legal history says the opposite.
In Associated Press v. United States, the US Supreme Court held that “freedom to publish means freedom for all and not for some.” That protection extends to dissenting voices, especially those the political or media elite might prefer to silence.
The court rejected the notion that the First Amendment shields private media cartels from antitrust scrutiny. The DOJ’s position in the TNI case builds on this precedent, arguing that collusion among dominant media and technology companies can distort the marketplace of ideas in ways that harm both consumers and competitors.
The notion that antitrust enforcement should protect expressive competition isn’t new. In the mid-20th century, courts repeatedly recognized that control over channels of communication can produce market harms beyond price effects—namely, the foreclosure of rival viewpoints. When those harms are the result of agreements among competitors, they fall squarely within the Sherman Antitrust Act’s prohibition on concerted restraints of trade.
Unfortunately, over the last four years under the Biden administration, DOJ enforcement often treated political dissent as a threat to be neutralized rather than as protected expression. At the same time, it ignored genuine threats to liberty, such as the TNI’s alleged coordinated suppression of speech, and instead directed enforcement toward private companies with large market shares.
An oft-cited example is its meritless lawsuit against Visa, a company that operates in a competitive debit industry where retailers already have multiple routing options by law. Despite there being no sign of price-fixing, the case treated consumers and businesses’ voluntary use of Visa as a market share concentration problem while leaving actual collusion—such as the TNI issue—unaddressed.
The DOJ’s new leadership under the Trump administration has taken a different approach. It recognizes that size alone doesn’t make a company harmful, and that enforcement should focus on conduct, not just market share. The DOJ’s new emphasis is on identifying and stopping coordination among powerful corporations, especially when that coordination suppresses information or limits competition. This broader view treats collusion to silence ideas as just as harmful as collusion to fix prices.
Through her TNI statement of interest, Assistant Attorney General Gail Slater has emphasized that viewpoint competition is essential to both economic and expressive freedom. In practice, this means antitrust enforcement must look beyond narrow price effects and consider whether collusion is being used to silence disfavored ideas. A free market of ideas can’t exist if only one side is allowed to speak.
James Madison recognized this. He didn’t define a man’s property as just land or money; a man also “has a property in his opinions and the free communication of them.” He understood that the ability to speak freely—and to hear others speak freely—is essential to the security of all other rights. That is the animating purpose behind the First Amendment and a natural complement to competitive markets.
This insight connects directly to modern antitrust principles. The consumer welfare standard, which has guided US enforcement for decades, isn’t limited to price and output. Its welfare also encompasses the quality and diversity of products and services, which includes diversity of viewpoints. If dominant firms conspire to limit that diversity, they reduce consumer welfare in a way that antitrust law is intended to prevent.
For decades, competition law largely overlooked this expressive dimension, partly because markets were more diffuse and technological barriers to entry were lower. But the rise of dominant digital platforms, combined with traditional media consolidation, has made it possible for a small group of firms to decide, collectively, what information hundreds of millions of people can access. When that collective decision is the product of agreement among competitors, it should be subject to the same scrutiny as any other market allocation scheme.
The DOJ’s statement in the TNI case signals that viewpoint competition is once again on the enforcement agenda. If courts affirm that principle, it won’t be a radical expansion of antitrust but a return to its foundational purpose—preventing private agreements that harm the public, whether through higher prices, lower quality, or suppression of ideas.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Mehek Cooke is an attorney, legal analyst, commentator, and chief executive officer of American Frontier Strategies and Ten Talents NIL. She formerly served as Assistant Chief Counsel for the Governor of Ohio.
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