Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.
Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain speech (for example, speech that promotes economic efficiency) receives indirect protection as a byproduct of antitrust law. The potential challenges associated with indirect, rather than direct, protection of such speech are then explored. Significantly, such de facto protection does not, however, extend to speech furthering noneconomic values. We then consider some of the pros and cons associated with extending protection to nonefficiency speech values.
Central to society’s improved treatment of such speech within antitrust settings is a willingness to recognize the pitfalls of the status quo, to undertake incremental change and to consciously cultivate learning. Perhaps the reality that such interface issues are only likely to worsen given the ever-growing and evolving information economy will get society talking.