Kaleb Byars argues that while Big Tech censorship may constitute antitrust harm, without reform current law does not provide antitrust agencies or the courts a remedy.
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.
Throughout the past decade, members of Congress and advocates from both sides of the political aisle have criticized Big Tech censorship. In 2023, Democratic Senator Elizabeth Warren expressed concerns that Meta suppressed pro-Palestinian content following Hamas’ invasion of Israel on October 7, 2023. Democratic Senator Richard Blumenthal and independent Senator Bernie Sanders have highlighted other ways in which Big Tech firms’ business practices have harmed the marketplace of ideas, such as leveraging their market power to eradicate local news media. In March 2025, Republican Representative Jim Jordan sent letters to multiple Big Tech firms demanding the firms to produce documents that could provide evidence of censorship.
Recent conversation surrounding Big Tech censorship has centered on President Donald Trump’s appointment of Andrew Ferguson as the chairman of the Federal Trade Commission (FTC). In December 2024, before taking his new seat, Ferguson foreshadowed that a priority during his FTC tenure would be to use antitrust law to combat Big Tech censorship and protect free expression. In an X post, Ferguson said that the FTC would “end Big Tech’s vendetta against competition and free speech.” In a concurring statement released a week earlier, Ferguson noted that the FTC “must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly.” As the impetus for the need for enforcement, Ferguson highlighted familiar claims of censorship, including the Big Tech firms’ suspensions of President Trump’s social media accounts and suppression of the Hunter Biden laptop story.
Ferguson’s comments reinvite familiar questions I considered in a previous article. First, should antitrust law be responsible for addressing harm caused by Big Tech censorship? Second, if so, what antitrust theories might provide remedies?
Big Tech censorship as a cause of antitrust harm
Whether antitrust law should be used to combat censorship depends on whether censorship causes harm that may be fairly deemed harm to competition. Historically, the consumer welfare standard has been the lodestar for determining whether harm should be remediable by antitrust law. Under a traditional formulation of the consumer welfare standard, corporate action causes antitrust harm only if it increases prices or decreases output. A classic example of anticompetitive conduct is collusion. When Company A and Company B conspire to produce and sell less of a certain good, the supply of that good decreases, and its price increases.
Applying the traditional consumer welfare standard strictly, Big Tech censorship does not appear to directly cause antitrust harm. Individual users need not pay to create or use Facebook, Google, or X accounts. Thus, when Big Tech firms censor advertisements or posts, the censorship itself does not require users to pay more to use the platforms or use the platforms less frequently.
Nonetheless, many scholars, judges, and regulators now support a broader definition of antitrust harm, whether under the consumer welfare standard or competing standards. The benefits of competitive markets are not just lower prices and greater output. Robust competition also promotes innovation, leading to higher-quality and more diverse products that provide consumers with greater choice. In 2017, Former FTC Chair Lina Khan argued that even a broader consumer welfare standard would define antitrust harm too narrowly.
Recognizing the broader benefits of competition, more recent antitrust guidance has embraced a broader definition of antitrust harm. Under this broader definition, Big Tech censorship causes antitrust harm. Big Tech firms offer “information products” (e.g., search engines, social media platforms) designed to provide users with data. Meanwhile, First Amendment and free speech theory suggest that access to competing ideas and information in the marketplace of ideas is optimal because it provides the best chance at ascertaining the truth. Logically, then, an information product is of higher quality if it provides its users with more rather than less information. Thus, censorship causes antitrust harm because when Big Tech firms censor content, the firms decrease the information on their products, which inherently degrades the products’ quality.
Big Tech censorship also causes downstream economic harm. Because censored information is more difficult or impossible to locate, researchers face increased transaction costs, spending more time to locate information. In addition, businesses, influencers, and content creators that make their livelihoods by using Big Tech platforms may lose their ability to generate revenue if their content is censored, and their losses may lead to less competition in their markets. Because Big Tech censorship results in lower product quality and causes other anticompetitive effects, Big Tech censorship should be remediable by antitrust law.
Antitrust law remedies for Big Tech censorship
Accepting that antitrust law should provide a remedy for Big Tech censorship, the remaining question is whether any basis for relief under antitrust law currently exists. According to Ferguson, if Big Tech firms work together to censor conduct, collusion and group boycott may provide theories for relief. These theories seem reasonable so long as the concerted action unreasonably restrains trade; other scholars may explore their legitimacy in greater detail.
But what about firms that act independently in censoring content? Section 2 of the Sherman Act is the primary antitrust vehicle for combating anticompetitive actions of single firms. Under Supreme Court precedent, a plaintiff can maintain a claim under Section 2 against a defendant that: (1) has monopoly power in the relevant market; and (2) willfully acquired or maintained its monopoly power by anticompetitive means. The Big Tech firms likely have monopoly power as they all possess high market shares in their respective markets and network effects assure their high market shares persist.
Nevertheless, under current law, Big Tech censorship likely does not qualify as anticompetitive conduct that Big Tech firms have employed to acquire or maintain their monopoly power. Censorship is nothing more than Big Tech firms’ refusal to publish speech of others, and generally, Section 2 does not impose on firms a duty to deal with others.
However, a firm’s refusal to deal with others constitutes unlawful anticompetitive conduct in some cases. Applying the “essential facilities doctrine,” some courts have held that a defendant monopolist is liable under Section 2 if the defendant refuses to provide its competitors with access to a facility that is essential for competing in the monopolist’s market. For example, in its 1912 decision in United States v. Terminal Railroad Association, the Supreme Court held that a railroad association that controlled the only railroad bridges on the Mississippi River in St. Louis was required to allow competing railroad companies to use the bridges on reasonable terms.
The essential facilities doctrine does not seem to apply to Big Tech censorship, though. Big Tech platforms are arguably essential for participating in the modern marketplace of ideas as most people voice their opinions and receive their news online. But because the Big Tech firms make their billions by offering platforms for speech rather than by speaking themselves, they are not competitors with the content publishers who use their platforms. As such, Big Tech censorship does not violate the essential facilities doctrine. Absent reform, then, it seems single-firm Big Tech censorship is not remediable by antitrust law.
There are avenues for legislative or judicial reform. Given that Big Tech censorship causes antitrust harm, Congress or the courts may reasonably create antitrust theories or modify existing theories to create tools to combat Big Tech censorship. For example, in my previous article, I argue Congress or the courts could modify the essential facilities doctrine to allow it to apply when a monopolist refuses to share a facility that is essential to compete in a collateral market (rather than the monopolist’s own market) or the marketplace of ideas. That type of change makes sense from a policy perspective. If a Big Tech firm refuses to publish a business’s advertisement simply because it disagrees with the speech in the advertisement, the advertising business may lose customers and be forced to exit its market. Without that business, less competition would exist in the market, and higher prices, lower output, and less innovation would follow.
Until reform occurs, absent collusive behavior, parties will likely need to seek recourse for censorship outside of the antitrust sphere.
Author’s Note: This article relies on his paper, “An ‘Essential’ Solution: Reworking the Essential Facilities Doctrine to Address Big Tech’s Harm to the Marketplace of Ideas,” which was published in the Mississippi Law Journal in 2023.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
