Contrary to some early predictions, the Trump administration appears committed to vigorous enforcement of the antitrust laws. While the Antitrust Division of the Department of Justice and the Federal Trade Commission (FTC) may be retreating from some of the more novel, and perhaps aggressive, tactics of the agencies under the Biden administration,1 the activity of the agencies in addressing core antitrust concerns shows no signs of abatement. In an address on April 28, 2025, at the University of Notre Dame Law School, Abigail Slater, Assistant Attorney General for the Antitrust Division, emphatically asserted that antitrust enforcement was a corollary of the conservative values of a free marketplace and individual freedoms.2
The agencies under the Trump administration have not rescinded two of the more controversial actions taken during the tenure of their predecessors in the arena of merger review. The 2023 merger guidelines, with their lower thresholds for triggering antitrust scrutiny, remain in effect. And the new and greatly expanded Hart-Scott-Rodino forms, despite pushback from some in the business community, are not going away.
There is, however, one area in which the Trump administration agencies are staking out their own territory. Both the FTC and the Antitrust Division have let it be known that they intend to combat what they perceive as collusion and suppression in the marketplace for ideas. Most recently, the Antitrust Division has vigorously advocated for the use of the antitrust laws to police restraint on viewpoint competition in its Statement of Interest in Children's Health Defense v. WP Company LLC.3 This follows on the heels of the Joint Statement of Interest of the FTC and the Antitrust Division in State of Texas et al. v. BlackRock, Inc.4 As has been observed, government action in this area harbors the potential for the collision of two fundamental precepts of American jurisprudence. The noble goals of American antitrust law, when imported into the arena of ideas, may come into problematic conflict with First Amendment rights of free expression and association.
Children's Health Defense
The plaintiffs in the case are individuals and entities that claim to publish news and views regarding COVID-19 on various channels, including, among others, Facebook, LinkedIn, X (formerly Twitter) and YouTube. The defendants, which are limited to The Washington Post, the British Broadcasting Corp., the Associated Press and Reuters News & Media, are members of a group called the Trusted News Initiative (TNI), which includes both news organizations and platforms. As stated on the TNI website hosted by the BBC:
The Trusted News Initiative is a partnership, founded by the BBC, that includes organisations from around the globe including; AP, AFP, BBC, CBC/Radio-Canada, European Broadcasting Union (EBU), Financial Times, Information Futures Lab, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Thomson Reuters, Reuters Institute for the Study of Journalism, Twitter, The Washington Post, Kompas – Indonesia, Dawn – Pakistan, Indian Express, NDTV – India, ABC – Australia, SBS – Australia, NHK – Japan.
TNI members work together to build audience trust and to find solutions to tackle challenges of disinformation. By including media organisations and social media platforms, it is the only forum in the world of its kind designed to take on disinformation in real time.
The plaintiffs allege that the defendants have conspired "to exclude from the world's dominant Internet platforms rival news publishers who engage in reporting that challenges and competes with TNI members' reporting on certain issues relating to COVID-19 and U.S. politics." The defendants deny this. They maintain that TNI is "an industry information-sharing partnership . . . aimed at identifying harmful disinformation." While the defendants may flag certain content, each of the platforms makes an independent decision on whether to exclude the content based on their own moderation policies.
The case was filed in 2023 in the U.S. District Court for the Western District of Louisiana but was transferred to the District of Columbia.5 The Department of Justice filed its Statement of Interest in July 2025.6
In their motion to dismiss the complaint, the defendants raised a variety of issues. These include, among others, that the complaint does not allege that the TNI members cut off access of the plaintiffs to any media facility and adverts only to conduct of the platforms and not of the defendant news organizations. But the defense that attracted the attention of the Justice Department was this:
Most of the injuries alleged cannot constitute antitrust injury as a matter of law. The Complaint alleges that Defendants caused injury by "suppressing competition in the marketplace of ideas," but this is not a cognizable antitrust injury. These alleged harms are harms to the free expression of viewpoints, like ideas, and therefore fall outside of the purview of antitrust laws.
The Justice Department expressly declined to take a position on the factual allegations of the complaint or the resolution of the defense motion to dismiss. But it vigorously opposed the position espoused by the defendants that the antitrust laws do not reach the "marketplace of ideas." Among its points in the Statement of Interest, the Justice Department argued that:
- "[T]he Sherman Act protects all forms of competition, including competition in information quality."
- "[The law has a] longstanding recognition that content competition is a critical feature—and consumer benefit—of the news media industry."
- "Defendants' [legal position] would cause grave harm in modern digital markets by effectively immunizing anticompetitive conduct that limits consumers' access to diverse viewpoints."
- "[E]ven if Defendants are correct that their concerted efforts are directed only at defining standards for identifying misinformation, and applying such standards in flagging misinformation for each other, such joint activities are correctly subject to [Sherman Act] Section 1 scrutiny for potential anticompetitive effects . . . . This analysis can account for impacts on the content, diversity, and quality of news wherever they are dimensions of competition that impact consumer welfare in the relevant markets."
Without saying so explicitly, the Department of Justice appears to argue that application of the antitrust laws in this case to ideologically motivated conduct actually promotes First Amendment values.7
State of Texas et al.
In May 2025, the FTC and the Antitrust Division filed a Joint Statement of Interest 8 in State of Texas et al. v. BlackRock, Inc., pending in the Eastern District of Texas. In that case, Texas and a number of other states sued BlackRock, State Street and the Vanguard Group. The states alleged that these asset managers used their substantial shareholdings in multiple, competing coal companies to influence management to reduce the output of U.S. coal production to advance their commitments to climate goals and carbon reduction. Where this type of engagement was ineffective, the defendant asset managers allegedly voted against or withheld votes in favor of management or threatened to divest. The states further allege that the defendants economically profited because the reduction in coal production raised energy prices, from which their investments in coal companies benefited. The action raises claims under Section 7 of the Clayton Act and Section 1 of the Sherman Act. On August 1, 2025, the court denied in substantial part a motion to dismiss the complaint, essentially adopting the legal positions advanced by the agencies.
In the Joint Statement of Interest, the agencies made these points, among others:
- The "solely for investment" exemption in Section 7 of the Clayton Act, which the defendants rely on, can be lost when an investment is used to harm competition.
- While the agencies opposed restrictions on the ability of institutional investors to invest in competing companies, institutional investors cannot use their shares to stifle competition between commonly held companies.
- It is irrelevant that the alleged concerted action among the defendant asset managers, in violation of Section 1 of the Sherman Act, focused on climate issues, as good motives do not validate anticompetitive practices.
Although the agencies framed their arguments in the Joint Statement of Interest in classic terms of output restriction, stifling completion and supra-competitive profits, the agencies implied that the driver for the actions of the defendant asset managers was not economic but ideological. Indeed, without this perceived ideological overtone, one wonders whether the agencies would have filed their Statement of Interest in the case. In contrast to the defendants in the Children's Health Defense case, however, the defendants in this case did not advert in their motion to dismiss to freedom of expression principles and sought to parry the allegations of the plaintiff states with only classic antitrust arguments.9
Antitrust and the First Amendment
Ever since Central Hudson Gas and Electric v. Public Service Commission, 447 U.S. 557 (1980), American courts have authoritatively recognized that commercial speech—that is, speech intended to advance the economic interests of the speaker—is entitled to a somewhat lesser protection than the safeguards accorded political speech. The government cannot impose arbitrary restrictions on speech of a commercial nature, but government interests of sufficient weight can override the rights of commercial speakers to unfettered expression.
In the corporate context as well, the courts seem to have allowed speech to be restricted for a perceived greater good of protecting the collective interests of the corporate body politic. The Delaware courts have consistently upheld shareholder rights plans, which do more than prevent the accumulation of shares by an activist above a prescribed threshold. These plans import the group concept from the federal securities laws, under which a group is formed when two shareholders reach agreement on voting their shares.10 If two shareholders who collectively hold shares in excess of the threshold act together to challenge management, their joint ownership will create a group that will trigger the draconian dilutive consequences of the rights plan to the group members. Effectively, therefore, a rights plan precludes shareholders from exercising their rights of corporate citizenship in a way that would be unthinkable in the political domain.
At issue in the Children's Health Defense and State of Texas et al. cases, however, is not commercial speech. In each of these cases, the defendant actors were motivated, or believed by the agencies to be motivated, by ideas whose expression is classically protected by the First Amendment. In Children's Health Defense, the idea was the social harm of spreading medical information believed to be irresponsible. In State of Texas et al., the idea, as perceived by the agencies, was climate change.
On the one hand, accepting the allegations of the plaintiffs and the agencies in these cases, the manner of expression of ideas had consequences for the economic marketplace. According to the agencies, the defendant actors associated with others with similar views, so that arguments of collusion, which are the staple of the antitrust laws, could be fashioned. And there were, as alleged by the agencies, adverse economic consequences to the objects of their conduct. On the other hand, the agencies' application of antitrust laws to restrain persons whom they believe or understand to be furthering ideological principles partakes at least of a facial inconsistency with the freedoms of expression and association ensconced in the First Amendment.11 These ideological principles seem close to those that were at play in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). There, the Supreme Court held that a group boycott of white merchants to protest the killing of a black man was entitled to First Amendment protection, notwithstanding the intended economic fallout of the boycott.
Conclusion
The positions taken by the federal antitrust agencies in State of Texas et al. and Children's Health Defense, appearing recently in succession at the beginning of a new administration, no doubt reflect the administration's view that the antitrust laws may be legitimately employed for regulation of conduct in the marketplace of ideas that results in economic fallout. The judicial processes in this regard are largely in their early stages, and it is difficult to predict how far the government's position will lead and whether even the line drawn in Claiborne Hardware Co. will remain good law. What is certain is that ideologically motivated actors must exercise caution, at least for the foreseeable future, in engaging in collective conduct that arguably results in economic harm to those with whom they disagree.
Footnotes
1. On August 13, 2025, President Trump revoked Executive Order 14036, Promoting Competition in the American Economy, issued by President Biden on July 9, 2021. It appears, however, that the Trump administration is not so much opposed to the principles articulated in Executive Order 14036 as it is to what it may regard as its overly prescriptive approach.
2. Abigail Slater, "The Conservative Roots of America First Antitrust Enforcement"; available at https://www.justice.gov/opa/speech/assistant-attorney-general-gail-slater-delivers-first-antitrust-address-university-notre.
3. Docket No. 1:23-cv-2735(TJK) (D.C. July 11, 2025). On August 13, 2025, the defendants filed a response to the Statement of Interest, urging that it was not relevant to the defendants' motion to dismiss (see below).
4. Docket No. 6:24-cv-00437 (JDK) (E.D. Tex. May 22, 2025).
5. See Memorandum and Order, dated September 18, 2023, Case No. 3:23-CV-00720 (W.D. La.). In the memorandum and order granting the motion to transfer, the magistrate judge referred to the case as "an antitrust action with a free speech twist."
6. Available at https://www.justice.gov/atr/media/1407666/dl?inline.
7. While the FTC did not join in the Justice Department's Statement of Interest in Children's Health Defense, the FTC has expressed similar concern on what it regards as collusive activity in the media space. See Memorandum Opinion, dated August 15, 2025, in Media Matters for America v. Federal Trade Commission, Civil Action No. 25-1959 (SLS) (D.D.C.) (issuing a preliminary injunction against a civil investigative demand (CID) of the FTC). There, the court quoted the FTC as stating:
The CID issued to Media Matters is part of a broader investigation into similar group boycotts in the advertising industry. In particular, it is one of seventeen still outstanding CIDs issued pursuant to the agency's investigation into whether various entities have conspired to withhold, degrade, increase the cost of, or otherwise diminish the quantity of advertising placed on news outlets, media platforms, or other publishers in violation of Section 1 of the Sherman Act . . . and Section 5 of the FTC Act, under the guise of promoting "brand suitability" and "brand safety" against "misinformation." In particular, the Commission is investigating whether online advertisers and/or advertising agencies have unlawfully agreed to use certain lists promulgated by other industry participants that categorize or rate content publishers as not "brand suitable" or not "brand safe," to coordinate the placement of ads. Accordingly, the Commission has issued CIDs both to advertising agencies and to other entities that the Commission has reason to believe possess information relating to the use of such lists to coordinate ad placement.
The FTC has brought analogous considerations to bear in the context of its merger review activity.
8. Available at https://www.ftc.gov/system/files/ftc_gov/pdf/StatementofInterest-TexasvBlackRock.pdf.
9. See Defendants' Joint Motion to Dismiss Counts I-XIV and XVIII of the Amended Complaint and Request for Oral Argument, dated March 17, 2025.
10. See Yucaipa v. Riggio, 1 A.3d 310 (Del. Ch. 2010) (Strine, V.C.).
11. See, e.g., Lawrence Spiwak, When Antitrust and the First Amendment Collide (February 26, 2025), available at https://www.yalejreg.com/nc/when-antitrust-and-the-first-amendment-collide-by-lawrence-j-spiwak/.
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