The new Trump administration has thrust antitrust’s role in protecting free speech into the spotlight. Jan Polański discusses how this development should inform the European Union’s own debates about antitrust and free speech.
This article is part of a series that explores the ways in which the Federal Trade Commission can use its powers to protect free speech. You can read previously published articles here.
When X (then Twitter) and Facebook banned Donald Trump in 2021, few people expected that in just a few years Trump would be “so back” that X’s new owner, Elon Musk, would actively campaign for him or that Mar-a-Lago would become Mark Zuckerberg’s Canossa. But now that it has happened, these events mark a turning point in conversations about Big Tech, censorship, and free speech online.
The United States is not the only jurisdiction grappling with questions about Big Tech’s domination of online discourse. Europe, too, has struggled with questions about content moderation of political opinions and controversial claims. Unlike the U.S., Europe has antitrust provisions that can more easily address private censorship. Instead of questions about whether EU law can address censorship and free speech, the relevant question might be how to do it in a workable way, particularly within the current international environment.
Free speech or free pass?
In the U.S., antitrust and free speech have been on a crash course for years as Big Tech accumulated market power and questions arose about how they police speech online. During Trump’s first administration, concerns about free speech started to appear in the public speeches of U.S. antitrust enforcers. The idea of “free speech antitrust” also found its way into mainstream narratives during the 2020 U.S. presidential elections, it was present throughout the COVID-19 pandemic, and it became a rhetorical tool in X’s struggle against an alleged collective boycott by advertisers.
Accumulated tensions have at last collided antitrust enforcement with free speech early in Trump’s second administration. Shortly before November’s election, Trump’s running mate, JD Vance, made it clear that he holds a “non-traditionally Republican” view that in the context of censorship concerns, Big Tech companies should be broken up. This was hardly campaign palaver. One of the first decisions of the Federal Trade Commission under the new leadership of Chair Andrew Ferguson has been to open an inquiry into tech censorship.
The new administration soon exported this narrative beyond U.S. borders. During his visit to Europe in February, Vice President Vance criticized the European elites for their approach to free speech. However, he also called on the EU to re-think its regulatory policy toward U.S. Big Tech, that is, in practical terms, to reduce U.S. Big Tech’s regulatory burdens, offer them a free pass on content moderation, and allow them to expand in European markets, particularly the nascent artificial intelligence industry.
Some may wonder, then, how Washington would react to EU antitrust enforcers opening a tech censorship probe similar to that started by the FTC. Would the U.S. administration respond positively to the EU investigating Big Tech to open up the marketplace of ideas, as Vance recommended on the campaign trail? Contradictions aside, Vance’s diagnosis that antitrust has failed to intervene to protect free speech may be correct. However, the current transatlantic political clashes also reveal the dangers of antitrust enforcement getting out of hand. A patient study of the current regulatory imbroglio offers positive and negative lessons to inform how EU antitrust enforcers could approach free speech.
Citizen Kane is Consumer Kane
Vance’s view that Big Tech companies gained too much power over free speech and might need to be broken up is certainly “non-traditional,” and not just for members of the traditionally business-friendly Republican Party. For the last few years, much of the discussion about antitrust has focused on reconsidering the primacy of the consumer welfare standard and its exclusive focus on prices, output, quality, and innovation. Against this backdrop, a political value, such as free speech, may seem like an antithesis of consumer-focused enforcement. In Robert Bork’s seminal The Antitrust Paradox, for example, free speech as an antitrust issue appears mostly as a villain.
But in the long term, excluding political values might be a disservice to the consumer welfare standard. The Trump administration’s priorities offer an opportunity to reconsider arguments that presented by someone else like, for example, the Neo-Brandeisians, would be met with much more hostility.
Conceptually, there is no issue with treating free speech as part of product quality, and thus consumer welfare, rather than distinguishing it as part of a more obscure “citizen welfare.” The question is rather how to specifically address free speech interests in antitrust once it is recognized that private censorship might be an antitrust topic, aside from being a fundamental rights issue.
The formulation of this question in Europe is no different from its formulation in the U.S. scenario. The similarities come down to the same type of concerns: controversial politicians banned from social media? Check. Big Tech removing content? Check. Online marketplaces banning books? Check.
European antitrust agencies have also received complaints about the online censorship of private individuals and met merger cases with free speech arguments.
However, there are also important differences between the two jurisdictions. European enforcers have a significant advantage over their American counterparts to address free speech as an antitrust concern. Unlike in the U.S., in the EU, unilateral actions can be an antitrust infringement, if they are “abusive” and consist in exclusion, exploitation, or discrimination. In cases of non-exclusionary abuses, no market needs to be “monopolized,” no competitor needs to be eliminated, and no impact on “competition” needs to be established—a company simply needs to have a dominant position and act in a way that is detrimental to consumers. Private censorship is not a bad candidate for a form of “abuse.”
The European enforcers have also already experimented with other non-traditional issues in antitrust enforcement, such as sustainability. This experimentation particularly helps to identify how antitrust might approach free speech in the EU.
First, free speech can be integrated into substantive legal tests. For example, in case of horizontal cooperation cases that have inconclusive procompetitive/anticompetitive effects, free speech may work as a ”plus factor”—an indicator that decision-makers should rule with a more cautious approach that favors the preservation of free speech. Such a test would rely on a more probabilistic view of enforcement. This is also not unprecedented in the U.S. and would be similar to Justice Felix Frankfurter’s arguments in Associated Press.
Second, the standard way of enforcing antitrust laws in Europe is to impose administrative fines. Antitrust enforcers can emphasize the relevance of free speech by taking it into account during the fining process. For example, if an authority deals with a standard exclusionary case in a market relevant to free speech, it could impose higher fines, leading to higher deterrence. Some European antitrust agencies have in fact adopted this kind of approach in their fine guidelines.
Third, free speech cases could be prioritized. This might seem like a trivial issue, but agency budgets are not without limits, and the prioritization of cases relevant to free speech does make a difference. This is in line with an old policy of suing “milk cartels before caviar ones.” This kind of policy can also be easily combined with a classic focus on exclusionary conduct and standard theories of harm, with free speech contributing to case selection and resource allocation.
The art of the deal or Faustian bargain?
However, the current political climate also illustrates better than ever the risks associated with dealing with non-standard consumer issues in antitrust enforcement.
Vice President Vance’s apparently “idealistic” position on free speech in the EU contrasts with his harsh criticism of those disagreeing with the administration’s “realist” policy on Russia. The new administration’s realist approach to international politics led some commentators to compare it to that of U.S. President Richard Nixon. From a free speech perspective, this parallel can be extended even further, due to President Nixon’s informal policy of using antitrust to pressure television stations that threatened to undermine his political power.
Coupled with an expansion of Elon Musk’s political influence, Zuckerberg’s post-electoral tribute at Mar-a-Lago, and Jeff Bezos’ adjustment of The Washington Post’s editorial line to silence voices critical of big business, the Nixon analogy provides room for speculation about risks and dilemmas that any jurisdiction mixing antitrust and free speech may face. Since the early days of antitrust enforcement, there has been controversy about distinguishing bad and unruly monopolies from the good and docile ones—the possibility of launching an antitrust case supported with free speech rhetoric might be a powerful tool to ensure that bad monopolies become good ones. This might be even more tempting in a new age of great power competition and a return of harsh political realism, in which the loyalty of powerful companies may become a useful asset in geopolitical struggles.
In theory, maintaining the independence of antitrust institutions is the best way to ensure that antitrust is enforced in a neutral and impartial way. However, there is a visible change in how antitrust institutions are viewed by top political leaders. Removals from the top positions at the U.K. competition authority and the FTC illustrate this. In the EU, antitrust enforcement is handled at the national level by specialized agencies, whose independence is theoretically protected by EU law, but the European Commission itself is a political body. Furthermore, the EU cannot easily protect the independence of national enforcers from state-level interventions such as budget cuts.
Should then antitrust stick to a very narrow conception of enforcement, since using it to address free speech concerns could ultimately become a Faustian bargain over its soul? As noted by other authors, the question does indeed come down to the very soul of antitrust or, looking from a different angle, a new antitrust paradigm. Against this backdrop, one thing should be made clear: the same risks that apply to “free speech antitrust” also apply to “labor antitrust,” “green antitrust,” or, in fact, antitrust in general. The risk of politicization is inherent to antitrust as a political institution—free speech is not the one to blame here. For the time being, recognizing free speech as a topic to be studied under antitrust, treating it as a possible enforcement priority, and analyzing it as part of consumer welfare could be a square deal, ensuring that undue political influence is minimized while important values are protected. Sometimes evolution is better than revolution.
Author’s Note: The views expressed in this text are the author’s own and do not necessarily reflect those of the Polish Office of Competition and Consumer Protection (UOKiK).
Author’s Disclosure: The author was involved in drafting the Polish Competition Authority’s OECD position linked in this article.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
