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Can the Sherman Act Be Used To Silence the Press?

Apparently, Trump’s DOJ thinks so.

Joyce Vance Oct 10

Saturday night, The New York Times reported that the Trump Justice Department is investigating whether the major television networks that participate in the White House pool—ABC, CBS, CNN, NBC, and Fox—violated the law by refusing to cover Donald Trump for a brief period after he suspended the White House hard passes for CNN, MSNOW, and Politico. The Time report was based on six sources. The Washington Post has now confirmed that report.

Here’s what we know so far:

• The investigation seems to center on whether suspending pool coverage was a violation of federal antitrust law. A DOJ spokesperson, Emily Covington, said, “Group boycotts among commercial competitors can violate the Sherman Act,” one of the primary antitrust laws.

• The Times reports that DOJ sent letters to the networks on Friday and “demanded communications and materials related to the White House TV pool.” They specifically sought “communications among network officials that concerned pool coverage of Mr. Trump, along with any communications about Mr. Trump’s revocation of CNN’s access to the White House grounds, according to two people with direct knowledge of the documents.”

The Times report calls it “a profound escalation of the Trump administration’s ongoing battles with the White House press corps. It also follows a pattern of the Trump administration using the levers of government against its perceived foes in the media.”

Covington said, “The Antitrust Division is simply investigating to determine whether these news organizations have violated the antitrust laws.” But when the DOJ launches a major investigation against the press, there’s nothing “simple” about it. As with so much of Trump’s revenge docket, the investigations into Jim Comey, Letitia James, Lisa Cook, and others, the process is the punishment. Targets have to hire lawyers. It gets expensive, and it’s stressful.

Trump has tried, repeatedly, to intimidate the press. “Quiet, Piggy.” During Chinese President Xi Jinping’s visit to the U.S. last month, Trump lamented the fact that they are not as biddable as the Chinese press. Now, despite his losses in court, Trump is back on the offensive against the people who keep the First Amendment for our democracy.

The Sherman Antitrust Act provides that “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” Violating the Sherman Act is a felony, punishable by fines of up to $100,000,000 for corporations and $1,000,000 for individuals, as well as imprisonment for up to 10 years. The government can also bring civil proceedings to prevent or restrain violations.

But it’s doubtful that the networks’ boycott is the type of restraint on trade that antitrust laws are intended to prevent. The networks didn’t agree to fix prices, allocate customers, or exclude commercial rivals, which is the type of behavior the law is meant to prevent and punish. The pool networks were responding to the president’s treatment of journalists, a temporary protest. Not every “refusal to deal” is an antitrust violation, a restraint on trade that the law prohibits, so it’s a real stretch to investigate here, given the First Amendment implications of the White House’s conduct.

But Donald Trump has long been a fan of announcing investigations into his enemies—regardless of whether they ever come to fruition—as a bully tactic. During his first impeachment inquiry, the Ambassador to the European Union, Gordon Sondland, testified Trump didn’t care about the outcome of an investigation into the Bidens’ Ukrainian business dealings. He only wanted Ukraine’s new President, Volodymyr Zelensky, to “just” publicly announce that his country was opening one. Trump did the same thing after he lost the 2020 election, asking acting DOJ officials to announce an investigation into election fraud. They declined.

It looks like we’re back there again.

I hope posts like tonight’s are what you come to Civil Discourse for. My goal is to follow the investigations and lawsuits that help us stay informed about the state of our democracy. Your support makes it possible for me to devote time to tracking new developments and getting an early read on the law involved. And most importantly, your paid subscriptions help me keep this work available to everyone.

We’re in this together,

Joyce