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Paper Abstracts

Collaboration and Competition in Information and News During Antitrust’s Formative Era

Daniel Crane

Crane looks at early 20th century jurisprudence on antitrust and on the First Amendment, showing that in cases concerning antitrust or unfair competition, Justices Holmes and Brandeis expressed the same values and concerns that animated their First Amendment jurisprudence.  Working through dissenting opinions, they opposed both restraints on free competition necessary to the propagation of information and ideas and government restrictions of collaborative information-sharing.  Seeking to work out the relationship between exclusivity, collaboration, and competition, Holmes and Brandeis argued that the government should neither promote informational exclusivity through the imposition of tort liability for unfair competition, nor stand in the way of voluntary and non-coercive efforts to facilitate the free flow of market information and democratic market access. Holmes’s and Brandeis’s dissents planted the seed of an idea about the mutually constructive roles that antitrust, unfair competition, and free speech could play in nurturing marketplace democracy.

The Limits of Anti-Monopoly Law as a Solution to the Problems of the Platform Public Sphere

Genevieve Lakier

Lakier focuses on scholars’ concerns that the First Amendment could be used to thwart many attempts to rein in the power of the tech giants. She finds no First Amendment obstacles to breaking up the largest internet companies, but believes that doing so would not solve many speech- or surveillance-related problems because these are not primarily caused by economic concentration. Lakier then argues that although the First Amendment clearly prevents some kinds of internet regulation—like treating the platforms as public utilities—there are many options that it would not necessarily foreclose. Among these she identifies subsidies granted by Congress to local newspapers to counterbalance the democratic harms posed by the largest internet platforms, regulations that limit the uses that internet companies can make of consumer data, and even targeted speech regulations aimed at violent or harassing speech.

Antitrust & Political Corruption: Overruling Noerr

Tim Wu

Wu reconsiders the First Amendment and antitrust’s best-known area of doctrinal intersection, the Noerr-Pennington doctrine. The doctrine provides an immunity to antitrust liability for conduct that can be described as political or legal advocacy. Dating from 1961, Noerr was strained when decided, and has not aged well. As an interpretation of the antitrust laws, it ignored Congressional concern about political mischief undertaken by conspiracies or monopolies; its legitimacy has always rested on avoidance of First Amendment concerns that surfaced after the statutes were passed. Noerr itself may have legitimately reflected such avoidance, but subsequent development of the Noerr doctrine has blown past any First Amendment-driven rationale for its existence. Others have suggested a reformulation of Noerr—but the better answer is that, lacking constitutional or statutory foundation, Noerr should now be overruled.