Recently, it was reported that the Department of Justice is investigating whether the major television networks violated federal antitrust laws when they suspended pooled coverage of President Trump after CNN was barred from participating. The theory appears to be that the networks acted as a cartel by engaging in a concerted refusal to deal or group boycott that is often treated as per se anticompetitive. The investigation is the latest in a growing series of efforts to use antitrust law to regulate competition in speech markets. Advertisers, advertising agencies, platforms, and media companies have all found themselves in the government’s crosshairs for collective decisions about whom to deal with and which speech to carry or suppress. While antitrust has an important role to play in preserving competition in speech and information markets, the current regulatory approach, which emphasizes behavioral rather than structural interventions, is unlikely to achieve that goal.   

Surge in antitrust scrutiny of “speech cartels”

Following Elon Musk’s acquisition of Twitter and changes to its content moderation policies, major advertisers paused advertising on the platform after their ads appeared alongside antisemitic and other offensive content. In addition to Musk’s antitrust lawsuit against the advertisers, state attorneys general and the Federal Trade Commission (FTC) also investigated whether the boycott constituted an anticompetitive group boycott. The advertisers, meanwhile, argue that compelling them to associate with or subsidize speech they reject amounts to compelled speech in violation of the First Amendment.

The FTC also launched an inquiry into whether technology and media companies coordinated their content moderation policies and thereby acted as a cartel, reducing competition in online news and information markets by collectively deplatforming or suppressing certain types of speech. Likewise, RFK Jr.’s Children’s Health Defense has brought an antitrust suit against the Trusted News Initiative—a coalition of media and platform companies—alleging that it operated as a “truth cartel” by coordinating the suppression of information relating to COVID-19, the Hunter Biden laptop episode, and elections, thereby reducing competition in the marketplace of ideas. Media companies respond that their editorial judgment is constitutionally protected, while platform companies argue that their content moderation and curation decisions are protected expressive activity under Moody v. NetChoice.

The merger of the two largest advertising agencies, Omnicom and Interpublic, was likewise approved only after the merged firm agreed to refrain from engaging in viewpoint-based boycotts. Together, these cases raise difficult questions about when concerted economic conduct that also expresses ethical or political commitments constitutes protected expressive activity, and when it is subject to antitrust liability. More fundamentally, they reveal a broader regulatory trend: rather than preserving competition through structural interventions that prevent concentration and protect the competitive process, antitrust is increasingly being used to police conduct through behavioral prescriptions within already concentrated speech markets.

Political or Economic Boycott?

The Supreme Court’s decision in NAACP v. Claiborne Hardware established that “political boycotts” are protected by the First Amendment and exempt from antitrust liability. The Court held that the NAACP’s boycott of white-owned businesses to advance racial equality remained constitutionally protected even though the organizers “foresaw—and directly intended—that the merchants would sustain economic injury,” because “the purpose of petitioners’ campaign was not to destroy legitimate competition.” Likewise, courts have held that the National Organization for Women’s boycott of convention facilities in Missouri to pressure the state to ratify the Equal Rights Amendment was a “political boycott” beyond the reach of the antitrust laws.

The modern speech-market antitrust cases, however, do not fit neatly within this framework. They are better understood as mixed-motive boycotts—collective refusals to deal that have both expressive and commercial motivations. Unlike the civil rights organizations in Claiborne Hardware, the alleged boycotters here are commercial actors—media companies, platforms, advertisers, and advertising agencies—participating in the very markets allegedly restrained. Moreover, as the Supreme Court observed in Superior Court Trial Lawyers Association, political boycotts are distinguishable from economic boycotts because, although they may inflict economic injury, their objective is not to secure a competitive advantage in the restrained market. By contrast, advertisers boycotting Twitter and media and platform companies engaging in coordinated content moderation often have both expressive and commercial motivations. Advertisers may seek to disassociate themselves from speech they find objectionable while also protecting their brand image. Likewise, media and platform companies may want to disassociate with content they find reprehensible while also preserving the quality of their platforms and facilitating discovery of their news by preventing it from getting buried under other content. The identity of the boycotters, their relationship with the boycotted, and their mixed motives distinguish these cases from traditional political boycotts.

Moreover, the First Amendment doesn’t automatically immunize coordinated conduct simply because it involves speech. In Associated Press, the Supreme Court rejected the argument that the First Amendment shielded the Associated Press from antitrust scrutiny when its members collectively refused to supply news to non-members. Although individual newspapers enjoy inalienable First Amendment rights, the Court held that those freedoms do not extend to concerted economic conduct that excludes rivals and distorts competition.

No Apparent Harm to Competition

The more fundamental problem is that, in these cases, it is far from clear that the concerted action harmed competition in any properly defined market. Nothing suggests that advertisers’ boycott of Twitter reduced competition in digital advertising markets. Rather, advertising spending appears simply to have been reallocated in response to concerns about product quality and brand safety. Indeed, Twitter itself alleged that advertisers shifted their spending to rival platforms despite Twitter offering lower price—a market response that reflects consumer preferences rather than a reduction in competition.

Likewise, coordinated content moderation may reduce output in the short run by removing some content from a platform. But some degree of content moderation is necessary for the market itself to function. Without it, platforms risk becoming overrun with spam and abusive content, driving away publishers, advertisers, and users alike. In that sense, content moderation may increase rather than reduce competition by making platforms more attractive to participants. Similarly, it is far from clear that the television networks’ temporary suspension of pooled White House coverage reduced competition in any cognizable market.

Every contract restrains trade in some sense, but antitrust condemns only unreasonable restraints that harm competition. Regulators therefore ought to exercise their enforcement discretion by bringing cases only where coordinated conduct plausibly harms competition. The DOJ and the FTC recognized precisely this principle during the COVID-19 pandemic, when they declined to challenge coordination among pharmaceutical manufacturers that was necessary to respond to an unprecedented public health emergency. Speech markets deserve the same disciplined focus on competitive harm.

Risk of Distorting Antitrust Doctrine

Regulators pursuing these cases risk more than wasting scarce enforcement resources. They also risk distorting antitrust doctrine itself. Courts confronted with disputes involving media companies, platforms, and advertisers—entities that enjoy substantial First Amendment protection—will inevitably be pulled toward creating constitutional carve-outs from antitrust liability. Even if many of these cases do not fit neatly within the political-boycott framework, the combination of weak evidence of competitive harm and strong First Amendment interests may encourage courts to extend constitutional immunity.

History suggests that such immunities rarely remain confined to the facts that produced them. The Noerr-Pennington doctrine, which shields collective petitioning from antitrust liability, offers a cautionary example. Through doctrinal creep and the gravitational pull of First Amendment, the doctrine has been extended to protect conduct such as fraud, bribery and misrepresentation, which originally wouldn’t have received even First Amendment protection.

Bringing weak antitrust cases that unnecessarily place antitrust on a collision course with the First Amendment therefore risks weakening antitrust law itself. Broad First Amendment carve-outs for coordinated conduct would incentivize sophisticated economic actors to characterize their commercial coordination as being expressive of some ethical or ideological position, creating an escape hatch from section 1 liability. Antitrust should not be pulled into this battle with the First Amendment absent a clear showing of competitive harm.

Antitrust’s Proper Role in Speech Markets

Antitrust has an important role to play in preserving a competitive marketplace of ideas. But that role is primarily structural rather than behavioral. Instead of policing editorial judgments or content moderation policies after markets have become concentrated, antitrust should focus on preventing concentration and preserving competitive market structures. Diverse ownership of media companies and platforms naturally generates diversity in editorial standards, content moderation policies, business models and political perspectives. That means challenging mergers, preventing monopolization, protecting local journalism, and safeguarding publishers from exclusionary conduct by dominant platforms.

Regulators have had ample opportunities to intervene in precisely these structural ways. The Paramount-Warner Bros., Paramount-Skydance, and Nexstar-Tegna mergers further concentrated already consolidated media markets. Facebook’s acquisition of Instagram contributed not only to greater concentration but also to the convergence of privacy and content moderation policies across social media platforms. If regulators were genuinely concerned that conservative publishers struggled to attract advertising revenue, preserving competition among advertising agencies by challenging the Omnicom-Interpublic merger would have been a more natural antitrust response than imposing viewpoint-based conditions on the merged firm. Likewise, regulators should devote greater attention to preventing dominant platforms and AI companies from exploiting publishers by appropriating their content without consent or compensation, conduct that may constitute monopsonization or monopoly maintenance. These structural interventions directly protect publishers from exclusionary conduct and market exit while preserving competition over editorial standards and business models.

Instead, antitrust enforcement has increasingly focused on attempting to regulate conduct within already concentrated speech markets. That approach predictably invites First Amendment challenges while doing little to improve competition. Antitrust’s comparative institutional advantage lies elsewhere: dispersing economic power, preventing concentration and preserving competitive market structures. In speech markets, those structural interventions naturally foster viewpoint diversity without requiring regulators or courts to supervise editorial decisions. The marketplace of ideas is therefore best protected not by regulating how speakers associate after markets have concentrated, but by ensuring that no single firm—or handful of firms—becomes powerful enough to shape public discourse.

Madhavi Singh is the Deputy Director of the Thurman Arnold Project and a Resident Fellow at the Information Society Project at Yale Law School.