Muzzling Antitrust: Information Products, Innovation and Free Speech

Abstract

How well does the American legal system balance the diverse values society espouses? Courts must often navigate values that are not consistent, commensurate, or subject to ordinal ranking. This article examines the confluence of incommensurate values within the important context of antitrust challenges to information product redesigns (e.g., Google, Nielsen).

The information economy has given rise to the emergence of powerful firms in the business of information products. Some of these firms have had product redesigns challenged as anticompetitive. This article examines two defenses to these challenges. First, the products constitute protected speech and should be immunized entirely from antitrust scrutiny. Second, the product changes embody procompetitive innovations and, therefore, are not anticompetitive.

When addressing antitrust challenges to search engine modifications, for example, the courts must account for free speech — a value exogenous to antitrust — as well as competition and innovation, two goals often considered in tandem within an antitrust framework focused on consumer welfare. Navigating speech and consumer welfare considerations presents a classic incommensurability problem. Moreover, even competition and innovation have proven to be largely incommensurate in practice, notwithstanding their shared consumer welfare orientation.

Despite antitrust’s ostensible facility with more nuanced tradeoffs, the courts have been largely unwilling or unable to transcend binary “all-or-nothing” outcomes when either speech or innovation-based defenses are implicated. When those product redesigns are decidedly incremental and arguably anticompetitive, the application of all-or-nothing legal standards provides inadequate protections for the underlying First Amendment rights and competition policy values at stake. This article explains why legal middle grounds, while potentially difficult, can and must be established to deal with speech and innovation.

Keywords: antitrust, First Amendment, innovation, internet, product redesign, search engine, speech, commercial speech, Sherman Act, monopolization, Google, Nielsen

JEL Classification: K21, L41, O38