Limits, Limitations, and Outer Boundaries of Antitrust: Censorship, Free Speech, and Dominance

Abstract

Big Tech undertakings have much power over what information becomes available online. Concerns have been voiced in this context that some of their content moderation practices may amount to private censorship and a restriction of free speech. Antitrust enforcement could be looked at as one of possible remedies to the risks associated with the use of market power to stifle free speech, since the prohibition of abuse of dominant position is very open-textured. Still, even assuming that an undertaking is dominant, antitrust has its limits and limitations which put free speech cases closer to the outer boundaries of antitrust rather than its core. This article explores those outer boundaries of antitrust and speculates whether private censorship could be framed as an abuse of dominant position. To do so, it discusses the limits and limitations of antitrust and then provides five perspectives from which private censorship could be looked at under antitrust. It concludes that while free speech might seem to constitute a political interest of no relevance to orthodox antitrust enforcement, it is possible to consider it under antitrust to relieve some social tensions generated by mostly unchecked power of large undertakings over speech. While a classic consumer welfare standard perspective can be preserved, more novel types of approaches also remain available, yet they would likely face similar problems as those discussed in the article, i.e., the problem of designing workable standards of assessment.

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Keywords: free speech, censorship, non-economic interests, public goals, consumer welfare

JEL Classification: K21, K38, L40