Key Takeaways
- A recent statement of interest from the U.S. Department of Justice focuses on "fact checking" efforts as potential antitrust violations due to the potential to suppress competition within the "marketplace of ideas."
- Proposed "truncated analyses" of relevant product features would make it easier for plaintiffs to allege anticompetitive conduct.
- Companies with "fact checking" programs should engage experienced counsel, as such activity may draw heightened scrutiny from DOJ and the Federal Trade Commission.
Is there a marketplace for your ideas? The U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) think so, which could implicate any company involved in "fact checking" any type of website, direct messaging, message boards, or social media. "Fact checking" includes removing content believed to include inaccurate or misleading information.
A recent statement of interest (SOI)1 filed by DOJ makes clear that the administration is now focused on the alleged "marketplace of ideas" and considers industry efforts to moderate content through "fact checking" to be potential violations of federal antitrust laws. The SOI considers coordinated content moderation as "fixing product features," such as viewpoint quality and diversity, which suppresses competition in the marketplace of ideas. It also argued for a "truncated analysis" for an unspecified subset of those agreements. This "truncated analysis" appears to advocate for a quick-look review to make it easier for plaintiffs to allege and show anticompetitive conduct (and may leave open the door for DOJ to later argue for per se review).
The implications for companies with "fact checking" programs may be significant. Companies engaging in "fact checking" content, even if unilateral, may find their mergers subject to increased scrutiny by DOJ and FTC. Companies engaged in industry discussions, groups, or collectives around "fact checking"—in and out of the media space—may be the focus of DOJ and FTC antitrust investigations. In both instances, companies engaged in those activities should consult antitrust counsel to evaluate their potential antitrust exposure under DOJ's new interest in viewpoint moderation and potential mitigation options.
Background
DOJ's SOI was filed in Children's Health Defense, where plaintiffs alleged that several large news outlets colluded through an industry partnership known as the Trusted News Initiative (TNI), which included large internet companies.2 Plaintiffs alleged that through TNI, "Defendants [] worked together [] to exclude from the world's dominant Internet platforms rival news publishers who engage in reporting that challenges and competes with TNI members' reporting on certain issues relating to COVID-19 and U.S. politics."3 The viewpoints that are alleged to have been suppressed involve, for example, that the COVID-19 pandemic is no more dangerous than the flu and that face masks do not prevent the spread of the virus.4 DOJ contends that the alleged suppression was accomplished through a group boycott that limited the "type or quality of information that may compete in the marketplace for ideas."5
The alleged antitrust harm is that the suppression of certain viewpoints caused the plaintiffs, as viewpoint purveyors, to lose revenue by missing out on social media monetization opportunities.6 They further allege that the American public was deprived of the benefits such viewpoints would have provided had they been disseminated on "powerful digital platforms."7
In a motion to dismiss, the news outlet defendants argued, in relevant part, that the "marketplace of ideas . . . is not an antitrust market that the antitrust laws reach" and that the complaint failed to plead antitrust injury, namely "any plausible economic injury" or "reduced competition" resulting from the defendants' alleged conduct.8 The defendants did not raise First Amendment or Section 230 defenses.
DOJ's SOI addressed each of those points. First, it argued that viewpoint collusion is subject to antitrust laws and that "the Sherman Act's prohibitions apply fully when restraints of trade limit non-price features such as the type or quality of information that may compete in the marketplace for ideas."9 Second, DOJ argued that the rule of reason or another "truncated analysis" similar to a quick look applies to the alleged conduct, and impacts on content, diversity, and quality of views are dimensions of competition that can be harmed by the alleged conduct.10 The implications of both positions are discussed further below.
Relevant Market: Alleged "Marketplace of Ideas"
DOJ's increased emphasis on maintaining what it believes is a competitive "marketplace of ideas" may have significant implications in antitrust merger and conduct investigations. Any company—not merely traditional print and news media—that employs "fact checkers" could face increased antitrust scrutiny by DOJ and FTC.
The leadership of both agencies views the marketplace of ideas and variations thereof as viable antitrust markets. Assistant Attorney General Abigail Slater stated, "This Antitrust Division will always defend the principle that the antitrust laws protect free markets, including the marketplace of ideas."11 FTC Chairman Andrew Ferguson has expressed his concern that the marketplace of ideas is affected by "censorious practices," especially in the social media space.12 Such practices, "whether carried out by state actors, private aggregations of power, or a combination of the two—[are] inimical to the free expression that makes our marketplace of ideas possible."13
If involved in a merger, companies with content moderation policies—even if the policies are unilateral and were not discussed with competitors—could face increased scrutiny because the administration might allege that the transaction could eliminate an independent center of decision-making for viewpoint choice. 15 U.S.C. § 7. Then, the remaining firms in the alleged marketplace of ideas may, in the view of regulators, inappropriately coordinate, reduce the diversity or quality of perspectives available to users, or facilitate the post-merger adoption of more restrictive content moderation policies.
The agencies may address these concerns with consent decrees that require merging parties to accept limitations on their content moderation policies. For example, in In re Omnicom Group, Inc., the FTC investigated whether a merger of two advertising companies would increase the risk of industry coordination that, in part, deprives media consumers of a diverse range of viewpoints. Ultimately, the FTC accepted a consent order that prohibited advertisers from "engaging in collusion or coordination to direct advertising away from media publishers based on the publishers' political or ideological viewpoints."14 Similar provisions may be more common in DOJ and FTC consent decrees during this administration.
If involved in industry discussions, groups, or collectives related to "fact checking," companies could also face an increased risk of an antitrust enforcement investigation under Section 1 of the Sherman Act, 15 U.S.C. § 1. DOJ and FTC may look to settle these cases with similar nondiscrimination terms as those recently employed in the FTC's merger consent decree.
Standard of Scrutiny: Quick Look
The SOI is less clear about how collective decisions affecting the marketplace of ideas would be evaluated under Section 1 of the Sherman Act, 15 U.S.C. § 1. While the SOI advocates for rule of reason treatment (balancing procompetitive benefits with anticompetitive harms), it suggests that a "truncated analysis" for certain agreements on fixing product features—like diversity, quality, and availability of perspectives—approximating a quick-look analysis may be appropriate.
The "truncated" or quick-look analysis may be DOJ's attempt to reduce the pleading burden on plaintiffs. Proving that content moderation has negatively affected competition in a given market can be difficult, so the quick-look analysis could present a workaround. With anticompetitive effects realized without precisely defining a relevant market or conducting an "elaborate industry analysis,"15 plaintiffs could establish a prima facie claim more easily and shift the burden to defendants to demonstrate procompetitive effects.
The SOI includes a footnote noting that even though plaintiffs briefed a per se analysis for the Sherman Act claim, the SOI "should not be interpreted as a statement one way or another on the validity of the per se claim."16 This footnote may signal that DOJ does not believe that per se treatment is appropriate but declines to take a position in order to avoid harming plaintiffs' chances of prevailing. However, DOJ also may have left open the possibility to later argue that per se treatment is appropriate. (DOJ almost exclusively brings criminal antitrust cases on per se theories for other naked output restrictions like price-fixing.)
Takeaways
The administration's new emphasis on viewpoint competition in the alleged marketplace of ideas, as well as a "truncated analysis" for certain content moderation activities, increase the risk of antitrust enforcement against companies that employ any type of "fact checking." While traditional print and news media may be familiar targets, the broad principles set forth in DOJ's SOI could implicate companies that employ content "fact checking" across any type of website, direct messaging, message boards, or social media. Companies engaged in those activities should evaluate their potential antitrust exposure under DOJ's new interest in viewpoint moderation.
Footnotes
1 Stmt. of Interest of the United States, Children's Health Defense v. WP Company, LLC D/B/A/ The Washington Post, 1:23-cv-02735-TJK (D.D.C. July 11, 2025), Dkt. No. 123 [hereinafter SOI].
2 Compl., Children's Health Defense v. WP Company, LLC D/B/A/ The Washington Post, 1:23-cv-02735-TJK (D.D.C. May 31, 2023), Dkt. No. 1.
3 SOI at 2.
4 Id. at 3
5 Id. at 5.
6 Id. at 3.
7 Id. at 6.
8 Mot. to Dismiss at 2 (Dkt. No. 41-1).
9 SOI at 5.
10 Id. at 15.
11 U.S. Department of Justice. Justice Department Files Statement of Interest on Suppression of Competition in the Marketplace of Ideas Through Deplatforming of Rival Viewpoints (July 11, 2025).
12 PROMARKET. Transcript: FTC Chairman Andrew Ferguson Keynote (April 17, 2025).
13 Id.
14 Federal Trade Commission. FTC Prevents Anticompetitive Coordination in Global Advertising Merger (June 23, 2025).
15 SOI at 12.
16 Id. at 10 n.5.
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