Academic journal article William and Mary Law Review

Antitrust as Speech Control

Academic journal article William and Mary Law Review

Antitrust as Speech Control

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                    1218  I. FIRST AMENDMENT AND ANTITRUST LANDSCAPE                     1219     A. Immunity                                                 1221     B. Remedies                                                 1223     C. Liability                                                1227        1. Collusion                                             1228        2. Invitation to Collude                                 1229        3. Information Sharing Generally                         1231        4. Information Sharing and Mergers                       1232        5. Information Sharing, Joint Ventures, and Other        1233           Collaborations        6. Industry-Wide Information Sharing                     1234        7. Self-Regulatory Initiatives and Professional          1236           Organizations        8. Boycotts                                              1238        9. Vertical Price Fixing                                 1241     D. Monopolization and Attempted Monopolization              1243        1. Disparagement                                         1243        2. Predatory Design                                      1244 II. PROTECTION OF SPEECH                                        1246     A. De Facto Protection for the Economic Efficiency Value    1247        of Speech     B. The Challenges Associated with Protecting Nonefficiency  1251        Values of Speech        1. Considerations For and Against Broadening First       1252           Amendment Protection        2. Distinguishing Speech Deserving of Solicitude--An     1258           Illustrative Example        3. Balancing                                             1262     C. A Speculative Look at Future Challenges                  1263 CONCLUSION                                                      1266 

INTRODUCTION

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though less than one might expect. (1) The interface between these two areas of law (2) is the subject of this Article.

Navigating the interface of First Amendment and antitrust law has always been challenging (3) and, we argue, is potentially becoming more so. The Supreme Court has couched antitrust in terms of constitutional qualities, such as when it characterized the Sherman Act as the "Magna Carta of free enterprise." (4) The Court has also employed economics-based metaphors in the First Amendment context, such as when it describes the "marketplace of ideas." (5) The two legal regimes are, nonetheless, rooted in different--and incommensurate--systems. This central tension appears throughout precedents that address the interface and has led to the spheres-of-influence solution. (6)

This Article examines these issues by recasting antitrust thinking in terms of speech control. Speech facilitates a substantial portion of conduct that runs afoul of antitrust laws and sometimes constitutes the objectionable conduct itself. (7) Standard analyses of the antitrust-First Amendment interface usually focus on whether the speech of concern is political speech. (8) Such analyses do not examine speech in the context of what seem to be garden-variety antitrust cases. Surveying the broader antitrust landscape with a speech lens, as we do in Part I of this article, allows for that.

Most of antitrust law can be swept into this speech control framework given the strong role of communications in the negotiation and consummation of commercial agreements as well as in mergers and in monopolization conduct that involves communications. (9) Understanding the role of speech in these varied contexts allows one to identify if speech values are directly or indirectly present and, if so, how well they are protected. Furthermore, the analysis highlights the problems posed in complex settings involving "hybrid" speech that has both economic efficiency and nonefficiency impacts. …

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