Meta’s settlement with state attorneys general is being celebrated as a victory over Big Tech. It may turn out to be something closer to the opposite: a case study in how regulation ends up entrenching the companies it’s meant to restrain.

Meta will pay billions to settle claims involving Facebook and Instagram. More consequentially, it agreed to an elaborate regulatory regime for users under 18—daily use limits, nighttime restrictions, school-hour notification limits, enhanced age verification, restrictions on certain features, stronger parental controls, and scrutiny from an independent auditor and the attorneys general themselves.

Some of this may be sound policy. But stack the pieces together and paradoxes emerge, ones that ought to bother conservatives—and anyone wary of government’s expanding footprint in private markets.

Start with privacy. Part of the original complaint was that Meta collected too much information about children. The fix requires Meta to get considerably better at identifying them. A 15-year-old claiming to be 19 can’t be taken at his word, so Meta needs sharper age-assurance tools—and the harder government pushes to stop teenagers from slipping past the restrictions, the more sophisticated that identification machinery has to get. We are protecting children’s privacy by requiring a company to know more about them.

Parental authority runs into a similar knot. The settlement is billed as empowering parents, and in places it does. But plenty of these decisions used to belong to parents alone, and now they don’t. Nobody’s mother or father decided that two hours was the right amount of Instagram for a 15-year-old—the attorneys general did. Nobody’s parents set midnight as the cutoff either.

Giving Meta a mandate to let parents impose limits is one thing. Having government impose the limits itself, with parents free to loosen them if they notice and bother to act, is another. The first approach hands parents real authority. The second substitutes a state official’s judgment for theirs and calls it choice.

Parents aren’t helpless here, whatever the settlement implies. They buy the phones. They pay the wireless bills. They control the Wi-Fi. Nothing stops a parent from restricting apps, capping screen time or banning phones from bedrooms. Teenagers have been dodging house rules since long before Mark Zuckerberg was born, and the fact that enforcement is hard doesn’t mean the job transfers to a state attorney general.

Regulation by litigation raises its own questions. This settlement dictates when minors can use a communications platform, how long, when notifications may reach them, and which features they encounter—with an independent auditor checking Meta’s compliance every year and the states retaining continuing oversight. Whatever you call that, it functions like regulation.

Except Congress never passed it. No legislature debated whether two hours was the correct limit or midnight the correct bedtime. No agency worked through notice and comment to arrive at these rules. Prosecutors alleged potentially ruinous liability, and a set of product rules got negotiated into existence as the price of making the case go away.

The First Amendment angle deserves a mention too. Social-media feeds are, among other things, distribution systems for speech. Rules governing how lawful information gets recommended or delivered can raise real constitutional questions—even granting that minors’ rights and parental authority complicate the picture. A restriction that would draw constitutional scrutiny if government imposed it directly shouldn’t necessarily dodge that scrutiny because it arrived wrapped inside a consent judgment.

The deepest paradox is economic. For years the government’s message has been that Meta is too powerful—its acquisitions attacked, its dominance targeted for reduction. Now government is loading it up with expensive new obligations: age assurance, content controls, compliance infrastructure, parental-control architecture, an outside auditor checking the work. Meta can absorb costs like that without much trouble. Whether the next Instagram could is a different question entirely. Regulatory compliance behaves like a fixed cost, and a company of Meta’s size bears it far more easily than two programmers building a social app in a garage without Meta’s legal team, engineering bench or compliance department. What antitrust law is supposed to prevent—a barrier that keeps new entrants out—is exactly what this settlement risks building.

One feature of the deal is stranger still: Part of Meta’s eventual payment is tied to whether YouTube, TikTok and SnapChat adopt comparable protections and make comparable payments of their own. Meta, in other words, is actively pushing its rivals to sign onto the same framework. The logic isn’t hard to follow: Restrictions that apply only to Meta put it at a competitive disadvantage, and restrictions that apply to everyone erase that disadvantage. Government has managed something unusual: turning the target of its enforcement action into a lobbyist for extending that enforcement to its competitors.

If Meta broke children’s privacy laws, enforce them. If it deceives consumers, prosecute that. Give parents tools that actually work and hold Meta accountable for honoring the choices parents make. What’s harder to justify is turning prosecutors into product designers, and a settlement negotiated behind closed doors into national technology policy.

The contradiction sitting at the center of all this isn’t subtle. Government insists Meta has grown too powerful, then hands it responsibilities that used to belong to parents while piling on regulatory costs that smaller rivals may not survive. We are, somehow, asking the company to become both less powerful and more responsible for managing American childhood at the same time.

That isn’t a fix for Big Tech’s power. It might be the mechanism that makes it bigger.

This article also appeared in the Wall Street Journal.

Meta is an inviting defendant. It’s enormous, plenty of people dislike it, and—not incidentally—it’s fabulously wealthy. Its executives have written embarrassing things in internal messages, its products can consume too much of a teenager’s attention, and most parents have at some point wondered whether the glowing rectangle in their kid’s hand is doing more harm than good.

None of that makes Meta legally responsible for the youth mental-health crisis, and it certainly doesn’t justify a financial penalty that Meta says could reach $1.4 trillion. When a civil lawsuit starts to resemble the federal budget, common sense ought to get a hearing too.

The trial beginning in Oakland is formally a consumer-protection and children’s-privacy case brought by California, Colorado, Kentucky and New Jersey, with claims involving 29 states in all. Politically, though, it’s being sold as something much bigger: a verdict on Facebook, Instagram, and the entire social-media age. The states’ lawyers want to cast Meta as the Big Tobacco of the smartphone era, knowingly addicting children while hiding the consequences from the public.

It’s a compelling story. It also runs well ahead of both the science and the legal claims that actually survived to trial.

Some young people undeniably have bad experiences on social media. Kids get bullied, exposed to disturbing material, kept up too late, drawn into ugly competitions over looks and popularity. A platform can make things worse for a child who’s already anxious, depressed, or isolated. Parents have every reason to worry about this, and Meta can be scrutinized over what it knew and what it did about it.

Meta’s internal documents don’t make that defense any easier. Researchers and employees discussed “problematic use,” compared Instagram to a drug for some users, and worried about teenagers staying up late scrolling. If Meta told the public one thing while its own researchers privately believed another, a court can and should examine those statements one by one. If it knowingly collected data from children under 13 without the parental consent required by federal law, it should answer for that.

But “some children were harmed” is a different claim than “Meta caused a generation’s mental-health crisis.” The first is plausible on its face. The second is the sort of claim lawyers reach for when they want to turn a messy social problem into an enormous damages number.

The National Academies’ review of the evidence didn’t back the sweeping conclusion that social media causes population-wide changes in adolescent mental health. Most studies find effects that are small, inconsistent, or highly dependent on the individual. And causation likely runs both ways—troubled teenagers may turn to social media in unhealthy ways, while others find community, information, or real help there.

That distinction matters. Identifying a risk factor is not the same thing as making a single company financially responsible for the mental health of an entire generation.

Plenty of things shape how kids feel: family life, school quality, preexisting conditions, neighborhood safety, the pandemic, money troubles, sleep, drugs, academic pressure—the list goes on. Instagram didn’t invent cruelty, vanity, exclusion, or teenage obsession. It gave those old problems a faster way to spread, which is worth taking seriously, but that’s not the same as treating every troubled teenager as a compensable injury Meta is on the hook for.

There’s a real gap between the states’ rhetoric and their actual legal case. Most of the public criticism is about infinite scroll, recommendation algorithms, notifications, likes, and similar engagement features. But Section 230 rulings have already cut deeply into design-based claims like these. What’s left concerns narrower matters: appearance-altering filters, time-management tools that allegedly don’t work well, and the ability to run multiple Instagram accounts.

Those claims can still go to trial. But proving them isn’t the same as proving Meta built an addiction machine that caused a mental-health crisis—and it’s a stretch from there to justify handing four state attorneys general and a single federal judge ongoing authority over Instagram’s algorithms and interface.

The filter allegation is probably the strongest of the surviving design claims. It’s not hard to see why software encouraging teenagers to reshape their nose, alter their body, or smooth their skin might feed appearance anxiety, and Meta will have to explain its choices there. The time-limit claim is weaker: a tool can be imperfect, or get circumvented by inventive teenagers, without being fraudulent. And the multiple-accounts claim is weaker still—a general feature doesn’t become illegal just because some minors use it to dodge their parents.

Meta also has a real record of trying to address these concerns. It’s rolled out private-by-default teen accounts, overnight notification limits, screen-time reminders, and parental controls, among other things. Critics say some of this came too late, or was more about public relations than protection. Maybe. But a company that’s made imperfect efforts is not the same as a company that made none.

Then there’s the money. Meta says the states’ damages theory could produce a $1.4 trillion penalty. The states dispute that framing and have floated a number closer to $200 billion instead—which is a bit like arguing over whether a ransom note demands the moon or merely several large continents.

Consumer-protection penalties exist to punish proven violations and discourage repeating them. They shouldn’t turn into an exercise in multiplying every user, every statement, every day and every technical interaction until the total has no relationship to any actual injury. A number that reaches hundreds of billions of dollars isn’t measuring harm anymore—it’s leverage.

And that leverage extends well beyond this courtroom. Thousands of private lawsuits have been filed against social-media companies, including suits from individuals and school districts, and plaintiffs’ firms are actively recruiting clients for “social media addiction” claims. A state victory here—especially one with sweeping factual findings attached—would raise the settlement value of all of it.

I haven’t seen any evidence that the four states in this case have promised an outside law firm a cut of the recovery. But the case sits inside a much larger industry where public enforcement and private mass-tort litigation feed each other. Look at New Mexico’s separate case against Meta: Reuters reported that the firm Motley Rice could collect as much as $67.1 million under a contingency arrangement, tied to a $942 million award that’s still on appeal. Financial incentives don’t disprove the underlying allegations, and lawyers are entitled to get paid. But they help explain the appetite for tobacco comparisons, sky-high damages demands, and legal theories broad enough to turn nearly any adolescent difficulty into a claim against a solvent company. State attorneys general have their own incentives too, including the ability to tell voters they brought home a multibillion-dollar settlement.

A case against Meta generates headlines, national attention, and a chance to look like the protector of children. None of that means the underlying claims are false. It just means prosecutorial outrage isn’t proof.

There’s also an institutional question here that should matter even to people who have no love for Meta. Congress passed a specific privacy law covering children under 13. Enforce it. If lawmakers think platforms need stricter age verification, real time controls, limits on appearance filters, or special duties toward teenagers, they can write those rules and debate the costs before putting them into effect.

That’s how this is supposed to work in a democracy—not asking a court to invent a national regulatory code out of broad consumer-protection statutes and then apply it retroactively with penalties large enough to bankrupt a company.

The stakes go beyond compensating individual children. The remedies being sought could reach how Facebook and Instagram select, rank, and present content to hundreds of millions of adult users. The Supreme Court has already recognized that social-media feeds involve editorial judgments protected by the First Amendment. Whatever you think of Meta’s editorial judgment, it shouldn’t become something state attorneys general get to run.

Meta’s strongest defense is that the states are trying to bridge some large gaps: between risk and causation, between concern and deception, between imperfect safeguards and unlawful conduct. They’re taking a narrow set of disputed practices and trying to use them to hold one company responsible for one of the most complicated social shifts of our time, then asking for remedies that go far beyond what those narrow claims could support.

Parents, schools, legislators, and tech companies all have a role to play here, and Meta should carry its share of the responsibility. But it shouldn’t be turned into a national scapegoat, a piggy bank for the litigation industry, or a public utility run out of a federal courtroom.

Hollywood has finally produced a drama in which the script has been lost and every actor has forgotten the storyline.

Paramount Skydance wants to acquire Warner Bros. Discovery. California Attorney General Rob Bonta, joined by eleven other state attorneys general, wants to stop it on antitrust grounds. Paramount CEO David Ellison has responded by threatening to move much of the company out of California to Tennessee, Georgia, or Texas unless Bonta negotiates. Bonta calls that “blackmail.” Meanwhile, Paramount is considering major strategic moves, from selling CNN to moving its headquarters, preserving studio lots, guaranteeing theatrical windows and making various promises about jobs and film production.

Almost none of this involves antitrust law or enforcement.

The Clayton Act, one of the pillars of antitrust law proteting competition, does not guarantee California a motion-picture industry. It does not protect Hollywood jobs, preserve famous studio names, regulate CNN’s editorial direction or require five historic movie companies to remain independent forever.

Antitrust law asks whether a transaction may substantially lessen competition. Properly understood, that means determining whether the merger is likely to give the combined company sufficient market power to raise prices, reduce output, diminish quality or obstruct competitive entry.

And yet Bonta’s case is not frivolous. Paramount and Warner Bros. are direct, horizontal competitors. The states allege that the combined company would distribute approximately 27% of wide-release theatrical films, more than 30% of anticipated blockbusters and roughly 27% of basic-cable programming. They contend that fewer major film distributors would enable the combined company to demand a larger share of box-office revenue from theaters. They also argue that a company controlling CNN, MTV, Nickelodeon, Comedy Central, HGTV, TNT, TBS, Cartoon Network and dozens of other channels could extract higher carriage fees from cable and satellite distributors.

Those are complaints based on recognizable consumer-welfare theories. If the states can establish that Paramount and Warner meaningfully constrain one another today, and that their combination would lead to higher prices or less programming tomorrow, they will have identified a legitimate competitive problem. Though often characterized as laissez-faire, traditional antitrust enforcement defined does not stamp approvals on mergers merely because business wants them. Concentration can create market power, and undue market power can harm consumers.

But identifying a theory is not the same as proving it.

The states’ case depends heavily on markets drawn around the declining institutions of twentieth-century entertainment. It treats “major studios” as though the category were ordained in Hollywood’s golden age and preserved in amber. It minimizes Amazon-MGM, Apple, Netflix, Lionsgate, A24, Neon and other companies capable of financing, producing or distributing major films. It also treats basic cable as a self-contained market even as millions of consumers abandon cable and streaming companies compete aggressively for movies, news, sports and entertainment.

Consider: the Justice Department spent eight months investigating the transaction. Its career staff reviewed more than two million documents from more than 80 custodians, examined data, took testimony and heard from third parties throughout the industry. It concluded that the merger was unlikely to harm competition in streaming, linear television or theatrical film distribution. Indeed, the department found that combining Paramount+ with HBO Max and Discovery’s content could produce a more formidable competitor to Netflix, Disney and Amazon—a likely benefit to consumers.

The Justice Department’s conclusion, of course, is not binding on the states or courts. But it deserves more than Bonta’s description of federal approval as a political “rubber stamp.” A state attorney general who wants a federal court to disregard an extensive federal investigation should present better evidence, not louder rhetoric.

Bonta instead keeps drifting into subjects that antitrust law is poorly equipped to address. His complaint and public statements emphasize employment, California’s economy, opportunities for writers and actors, the number of stories that will be told and the breadth of viewpoints reaching the public. These may be legitimate political concerns. They are not substitutes for economic proof that the transaction will harm competition.

Bonta’s description of Paramount’s relocation threat as “blackmail” is equally theatrical. Paramount is entitled to decide to move to Nashville or Nairobi. California imposes taxes, labor costs and regulatory burdens that companies may rationally seek to avoid. Other states, with lower costs, are willing to provide sweeteners like tax breaks. The merger delay itself could cost Paramount approximately $7 million a day in payments to Warner shareholders beginning this fall. Ellison has a fiduciary duty to consider ways of reducing those costs.

Even in this context, however, Ellison’s ultimatum is still problematic.

“Settle by October 1st or we leave” sounds less like a considered business judgment than an effort to put Bonta on the spot. It does nothing to answer the states’ allegations about theatrical distribution or cable bargaining power. Worse, it undercuts Paramount’s earlier assurances that the merger would strengthen Hollywood, preserve employment and expand film production.

If relocation makes economic sense, Paramount should relocate. If it does not, the company should not pretend that moving thousands of employees is a bargaining chip in an antitrust negotiation. The court should give the threat precisely the weight it deserves—none, either way.

There is a revealing test for Bonta as well. If Paramount’s promise to retain jobs and facilities in California would persuade him to abandon the lawsuit, then the case is not really about competition. It is an exercise in state protectionism. If the merger is genuinely unlawful, no employment promise can cure it. California residents do not become immune from higher prices because the company charging them maintains an office in Los Angeles.

Warner Bros.’ corporate history supplies another useful caution. The studio has passed from the Warner family to Seven Arts, Kinney National, Warner Communications, Time Warner, AOL Time Warner, AT&T and Warner Bros. Discovery. Again and again, executives have promised that the latest corporate combination would generate revolutionary synergies. AOL Time Warner became one of the most notorious mergers in American history. AT&T’s adventure in entertainment ended with WarnerMedia being spun off and combined with Discovery. Warner survived these experiments; many of the corporate theories did not.

That history may be a reason for Paramount shareholders and lenders to worry. It is not a reason for an antitrust court to block the transaction. Antitrust law does not prevent executives from overpaying, assuming too much debt or making foolish predictions about corporate synergy. Capital markets discipline bad business judgment. The government’s role begins only when a transaction threatens the competitive process.

Amid all this bluster, however, there may be room for a sensible settlement. If the states can prove that the combined cable portfolio would create excessive bargaining leverage, Paramount could divest a coherent package of channels.

Any remedy should be structural, enforceable and tied to a demonstrated competitive harm. A CNN divestiture might contribute to such a remedy, although CNN’s political slant and editorial policy should have nothing to do with the analysis. Promises to preserve jobs, maintain studio lots, release a specified number of films or protect CNN’s editorial “independence” are irrelevant to antitrust. If such metrics were to be accepted, they would turn antitrust enforcement into continuing industrial supervision.

The twisting of antitrust law could also normalize the use of the law by politicians to dictate where companies operate, how many people they employ, what products they produce and how news organizations conduct themselves. That is not competition policy. It is economic planning with a Hollywood backdrop.

The Paramount-Warner controversy has become a contest between two forms of political pressure. Bonta invokes antitrust law to defend California workers and Hollywood institutions. Ellison threatens to move those workers and institutions unless Bonta relents. Each side is trying to make California’s economic interests determine the disposition of a federal antitrust case.

Both should take a step back and engage the competitive issues of antitrust law.

It will ultimately be up to a court to determine whether the merger will raise prices, reduce output, diminish quality or prevent the entry of new competitors. If the states prove those harms, the transaction should be blocked or restructured. If they merely prove that the combined company will be large, politically controversial and possibly badly managed, the government must step aside.

Consumers are entitled to competitive markets. Paramount is not entitled to Warner Bros., and California is not entitled to Paramount. That is the beginning—and should be the end—of antitrust analysis.

Robert H. Bork Jr. is the president of the Antitrust Education Project.

Back in 2019, when he was a member of the Federal Communications Commission and viewed as a reliable, free-market kind of guy, Brendan Carr summed up decades of regulatory overreach in just eleven words: “The FCC has historically micromanaged the business operations of local broadcasters. And it must stop.”

A remarkably clear statement, coming from a Washington regulator. And, more importantly, a correct observation. Now, seven years later, and with Carr now the FCC’s chairman, he seems to have forgotten his own advice.

At the end of July, Carr announced the launch of investigations into recent affiliation agreements between television networks and local station owners. These freely arrived-upon agreements determine which local stations in what markets will carry which national networks’ news, sports, and primetime programming.

Carr has singled out leading affiliate groups like Gray Media and Hearst by name, warning that some of their stations’ recent changes in affiliation could cause problems for them when their FCC broadcast licenses come up for renewal or, perhaps, “much sooner.”

It’s not that these agreements violate a clear statutory prohibition or that the government suspects fraud or collusion. The chairman just doesn’t like where the market’s heading, worrying that some local stations’ affiliation choices may be giving national networks too much bargaining power.

Carr believes broadcasters may be making deals that are helpful to them in the short term but damaging to local television in the long run. And he may be right. But that’s not a matter for his concern. Television networks and station owners need to consider viewers, advertisers, and shareholders when negotiating agreements. Gray, Hearst, Sinclair, Nexstar, and other station owners, and the broadcast networks, employ people to evaluate the trade-offs in any agreements. And they risk their own money and reputations if they guess incorrectly.

Brendan Carr has no skin in the game. Yet he’s placing himself in the middle, making pronouncements about which agreements strengthen local television and which don’t while threatening government action against companies that reach conclusions different from his.

That’s the ugly façade of big government, and there’s nothing conservative or free-market about it. Carr is trying to have the government pick the winners and leave the losers with no recourse, pure and simple. And it’s not the first time he’s strayed from the principled positions he once advocated.

The FCC will soon vote whether to eliminate the national television ownership cap that prevents any single station group from reaching more than 39% of American households. Congress wrote that limit into federal law more than two decades ago.

That’s a problem. The FCC cannot, and Brendan Carr cannot, change public policy set by Congress on a major question just because he wants to. Many free-market economists believe the cap is outdated and that a new approach to the question of ownership limitations is needed, but the point remains: if a change must be made, it must be Congress that makes it.

Carr nevertheless has made plans to eliminate the bright-line 39% cap, replacing it with a “granular, case-by-case review.” What he is proposing would leave broadcasters without clear guidelines to follow and dependent on commissioners—or, worse, agency staff—determining whether each proposed transaction promoted their subjective conception of the “public interest.”

Clear rules restrain businesses and regulators. Everyone knows where the boundaries are, and regulators must apply them equally. Case-by-case discretion empowers the regulatory state, thereby strengthening it. That’s not the way to get freedom from regulation, as Carr and others call it. It leaves government officials free to approve transactions they like, reject those they dislike, demand concessions and reward favored companies.

That is what the regulatory state looks like in its purest form: less law, more power.

Advocates for deregulation used to recognize the danger in that proposition. We spent decades criticizing Democrats and Republicans who believed every business decision had to be supervised by an enlightened, disinterested Washington expert. We objected when bureaucrats stretched vague “public interest” authority to pursue outcomes Congress never authorized. We demanded predictable rules, equal treatment and limits on administrative discretion.

Those principles do not go out the window just because Brendan Carr used to be a reliable ally. Every power he claims today will eventually pass to a successor who believes more regulation is necessary to protect consumer welfare, or who just throws that long-held standard into the waste basket.

That person will be empowered to use the same affiliation investigations, license-renewal threats, and case-by-case merger reviews to punish some companies and reward others who have the “correct” record of political donations and policies on DEI. Carr and whatever allies he still has will then object, but it will be too late. After establishing that the FCC may manipulate marketplace outcomes whenever its chairman invokes the “public interest,” they will have no limiting principle left to invoke.

Carr had it right in 2019. Decisions about broadcasters’ programming and business operations generally belong in the marketplace, not in the pages of the Code of Federal Regulations—and certainly not in the personal judgment of one appointed official.

The FCC has historically micromanaged local broadcasters. It must stop. Chairman Carr should follow the advice Commissioner Carr once gave.

This article was published first at Issues and Insights. It is republished here with permission of editor and author.

Peter Roff is a veteran journalist who covered politics and public policy for U.S. News & World Report, United Press International, and other outlets. He regularly produces commentary on current political and public policy matters. You can reach him at RoffColumns AT GMAIL.com and follow him on social media @TheRoffDraft.

I committed two offenses in The Washington Post this week. First, I argued that high prices are not, by themselves, proof of an antitrust violation. Second, I did it under the name “Robert Bork.”

For a remarkable number of readers, the second offense disposed of the first. The comments included “Nepo baby,” “A dope begat a dope,” “The manure is always next to the tree,” and the wonderfully economical “NO READ.” Others explained that anything written by a Bork could be rejected without the tiresome formality of reading it. Several readers confused me with my father, who died in 2012, and expressed surprise that I was still alive. At least they were relieved to learn that one of us is.

Jeff Bezos was also tried and convicted. My essay, according to the comments, had been ordered by Amazon, the Federalist Society, the oligarchy, or perhaps all three on a conference call. The Post was accused of rummaging through the gutter, scraping the bottom of the barrel, and converting itself into a Bezos propaganda sheet. None of this was supported by evidence, but that was unintentionally appropriate. My essay was about the danger of reaching conclusions before finding evidence.

Then came the great verb controversy. Several readers insisted that the headline should have said the FTC ought to have “chucked,” not “shucked,” the Biden antitrust playbook. I did not write the headline, although I rather like the agricultural pun in an essay about eggs and beef. In any event, the headline police displayed more interest in one consonant than many of their neighbors displayed in Section 1 of the Sherman Act.

This is not a complaint that readers were rude. Anyone who writes an opinion piece should be able to survive the discovery that strangers on the internet do not admire him. Nor do I object to criticism of my father. He welcomed serious argument and supplied plenty of it himself. But “your father” is not an antitrust doctrine, “Bezos” is not an economic analysis, and “fascist” is not a substitute for identifying a relevant market, an agreement, exclusionary conduct, market power, or consumer harm.

Still, buried among the insults were several arguments worth answering. They concern actual collusion in the egg industry, the relationship between concentration and prices, the role of merger enforcement, the difference between free markets and unregulated markets, corporate profits, investigations, and crony capitalism. Those readers deserve a response because they did what critics are supposed to do: they engaged the argument rather than the author’s birth certificate.

What I actually argued

My Post essay made a limited point. The Trump administration, after promising a departure from Biden-era progressive antitrust, has adopted much of the same rhetoric and many of the same habits. When eggs, beef, or gasoline become expensive, officials reach first for the language of corporate misconduct. They announce investigations, demand price reductions, or encourage state attorneys general to use every available tool. The political message is simple: prices rose, therefore somebody in business must have cheated.

I did not argue that price fixing should be tolerated. I wrote the opposite: “If evidence emerges that companies secretly conspired to fix prices, they should be prosecuted.” I called price fixing “theft by another name.” Nor did I argue that monopolization, anticompetitive mergers, fraud, or exclusionary conduct should be ignored. My argument was that an unpopular price is not itself proof of any of those things.

That distinction should not be controversial. Antitrust law prohibits conduct, not weather. Section 1 of the Sherman Act reaches agreements in restraint of trade. Section 2 reaches monopolization, attempted monopolization, and conspiracies to monopolize. Section 7 of the Clayton Act addresses mergers whose effect may be substantially to lessen competition. Each requires a legal and factual showing. None reads: “Prices annoyed voters in an election year.”

The distinction matters because prices convey information. When bird flu destroys millions of laying hens, drought shrinks the cattle herd, or war disrupts oil supplies, scarcity appears in the price. The higher price is painful, but it also discourages consumption, attracts new supply, and allocates a scarce product. Government cannot abolish scarcity by accusing the price of misconduct. It can only obscure the signal or search for conduct that did not cause the shortage.

The egg case is a fair challenge—but not a rebuttal

The strongest criticism was that I “skipped right past” established collusion among egg producers. Several commenters referred to communications among executives and to an “Egg Libor” used to coordinate pricing. Their point was straightforward: if producers actually conspired, why describe the price increase as the work of bird flu?

The answer is that both propositions can be investigated without confusing them. A supply shock may raise the competitive price, and competitors may also exploit the moment through an unlawful agreement. Evidence of the latter should be pursued. If executives exchanged assurances, coordinated output, manipulated a benchmark, or agreed on prices, prosecutors should prove the agreement in court and seek meaningful penalties. Nothing in the consumer-welfare standard protects a cartel. Cartels are its easiest case.

But the existence of allegations or evidence concerning a conspiracy does not establish that every increase in egg prices, in every period, was caused by that conspiracy. The government still must identify who agreed to what, when the agreement operated, which sales it affected, and what harm it caused. Bird flu does not immunize collusion, and collusion in one period does not repeal supply and demand in another.

Some readers treated the recent settlement as a confession. It was not. The companies paid money, promised large egg donations, and did not admit wrongdoing. Settlements can reflect litigation risk, expense, uncertainty, or a desire to end a political controversy. They may be sensible, but they are not verdicts. The proper conclusion is not “nothing happened,” nor is it “the accusation proves everything.” It is that allegations should be tested against evidence.

That was precisely my point. If the evidence establishes a cartel, prosecute it. If the evidence establishes a disease-driven shortage, do not call nature a conspiracy. If both occurred, disentangle their effects rather than using one as a slogan to erase the other.

Concentration is a warning sign, but not a conviction

Several readers argued that decades of weak enforcement produced concentrated markets in which large firms can raise prices, suppress wages, and coordinate without leaving a written agreement. This is a serious concern. Concentration can make coordination easier, can increase the payoff from exclusion, and can justify close examination of mergers or conduct. But it remains a starting point for analysis, not its conclusion.

A market may be concentrated because a few firms achieved scale, reduced costs, developed better products, or won the preference of consumers. It may also be concentrated because regulation raises barriers to entry, government grants privileges, or incumbents excluded rivals. Those explanations have different legal and policy implications. Treating the market share itself as the offense avoids the very question antitrust must answer: how was the position obtained and maintained, and what did the firm do with it?

This is why the old slogan remains indispensable: antitrust protects competition, not competitors. A successful firm should not be punished for offering consumers a better bargain. A dominant firm should be punished when it maintains its position through conduct that impairs the competitive process rather than through superior skill, foresight, or industry. That is not indulgence toward monopoly. It is the line that prevents antitrust from becoming a license for government to rearrange markets whenever officials dislike the winners.

Tacit coordination poses a particularly difficult problem. Firms in an oligopoly may observe one another and independently recognize that aggressive price cutting would be unprofitable. Parallel conduct can harm consumers, but parallel conduct alone is not necessarily an agreement. If every gas station can see the price across the street, similar prices do not establish a secret meeting. Stretching “agreement” until it means conscious but independent behavior would expose lawful market responses to criminal liability and give enforcers enormous discretion. The answer is careful merger review, attention to facilitating practices, and proof of actual concerted action—not pretending the evidentiary problem does not exist.

Yes, mergers matter

One thoughtful commenter said that my essay should have discussed mergers, concentration, and monopoly power. That is fair as a description of what was outside the piece, but not as a refutation of what was inside it. A newspaper op-ed about the use of antitrust as an anti-inflation instrument cannot also be a treatise on every branch of antitrust law.

Merger enforcement is important precisely because it can address competitive risks before they become entrenched. Section 7 is predictive. It permits the government to challenge a transaction when the probable effect may be substantially to lessen competition. That is different from proving an agreement under Section 1 or unlawful monopolization under Section 2. A sound antitrust policy uses all three provisions for their intended purposes rather than treating any one of them as a general warrant against bigness.

The consumer-welfare standard does not require passivity toward mergers. It asks whether a transaction is likely to harm consumers through higher prices, reduced output, lower quality, diminished innovation, or other injury to the competitive process. It also requires enforcers to consider efficiencies and market realities. That discipline is a feature, not a loophole. Without it, “concentration” becomes a political adjective and merger review becomes a referendum on whether a company is popular.

Regulation is necessary; indiscriminate regulation is not

Many commenters answered an argument I did not make: that markets need no rules. They invoked the trusts of the Gilded Age, the financial crisis, unsafe workplaces, corporate personhood, and the general proposition that capitalism must be regulated. Of course markets require rules. Property, contract, fraud law, tort law, bankruptcy, securities regulation, environmental law, and antitrust law are part of the institutional structure that makes a market economy possible.

The question is not regulation or anarchy. It is which rule, for which problem, enforced under what standard, at what cost, and subject to what limit. A rule against competitors agreeing on price protects the market. A licensing regime designed by incumbents may suppress it. A safety rule may correct a genuine risk. A price-control threat issued because politicians dislike a lawful market price may discourage investment and prolong scarcity. Saying “regulation” does not resolve the inquiry any more than saying “freedom” does.

Several readers seemed to believe that opposition to progressive antitrust means opposition to all antitrust. That is a convenient caricature because it avoids defending the progressive program on its own terms. The modern progressive project seeks to use antitrust to pursue a sprawling collection of objectives—labor policy, political power, inequality, small-business protection, media diversity, and hostility to bigness—often without a measurable limiting principle. Those may be subjects for legislation. They should not be smuggled into broad statutory language and left to whichever regulator happens to hold office.

The consumer-welfare standard supplies the limit. It directs courts and enforcers toward injury to competition and consumers and away from free-floating judgments about social virtue. It does not answer every case mechanically, but it makes officials show their work. That requirement becomes more important, not less, when both parties are tempted to use enforcement against political enemies.

Profits, “gouging,” and the morality play

Other commenters pointed to record profits as proof that companies used shortages as cover for gouging. High profits can justify curiosity. They may attract entry and reveal where supply is especially valuable. They may also accompany collusion or exclusion. What they do not do, standing alone, is establish either.

Suppose a disease sharply reduces the supply of eggs while demand changes little. The market price rises. Producers whose flocks survive may earn unusually high margins even though they never communicated with a competitor. Those profits are not proof that the shortage was invented. They are also the incentive for producers to expand supply, repopulate flocks, and enter the market. If government treats the temporary return as evidence of guilt, it weakens the mechanism most likely to bring the price back down.

“Corporate greed” explains very little because the desire to earn a profit did not suddenly appear when inflation accelerated. Firms wanted profits before the shortage, during it, and after it. An explanation for a change must identify something that changed. Supply, demand, costs, capacity, entry, regulation, monetary conditions, fiscal policy, or coordination may do that work. Greed is a permanent human characteristic dressed up as a variable.

Nor does this absolve business of moral or legal responsibility. A company that lies, colludes, excludes rivals unlawfully, or buys government favoritism deserves condemnation. But moral indignation cannot tell us which conduct occurred. That requires evidence and analysis—the two things the word “gouging” is often employed to avoid.

Why not investigate everything?

A fair question appeared repeatedly: If a price spike may result from collusion, why object to an investigation? The government should investigate when facts provide a reasonable basis for suspicion. It should not announce that ordinary price movements are presumptively criminal or use investigations as public-relations substitutes for evidence.

Government investigation is not costless. It imposes legal expense, diverts employees, chills decisions, and creates reputational damage before any violation is proven. The state possesses compulsory process and the threat of punishment. Those powers should be used to discover whether a law was broken, not to produce a televised villain for an economic problem officials cannot quickly solve.

There is also a political danger. Once price dissatisfaction is enough to trigger antitrust scrutiny, enforcement becomes selective by design. Why eggs but not coffee? Why beef but not housing? Why one oil company but not another? The answer will tend to be political visibility, not legal principle. A neutral standard protects consumers, businesses, and political opponents alike.

Crony capitalism is not the free market

Some of the best comments argued that business has forfeited credibility by seeking subsidies, tariffs, bailouts, regulatory protection, and favorable treatment while preaching the invisible hand to everyone else. I agree. Being pro-market and being pro-business are not the same thing. Established businesses often dislike competition and are perfectly willing to use government to avoid it.

A corporation that secures a subsidy by political influence, asks regulators to hobble a rival, or purchases a tariff wall is not practicing free-market capitalism. It is practicing crony capitalism. The same is true when an administration rewards friends, pressures disfavored firms, conditions approvals on political accommodation, or uses antitrust threats as leverage. Government favoritism can create or protect market power as effectively as private exclusion.

That is why I have criticized what I call conservative socialism: the growing belief on the right that government should direct investment, manage prices, choose national champions, take special stakes in firms, and subordinate economic liberty to an official vision of “flourishing.” The answer to progressive industrial policy is not Republican industrial policy. The answer to politically directed antitrust is not politically directed antitrust with a different enemies list.

Readers who called Donald Trump a crony capitalist were therefore not rebutting my argument. They were approaching it from another direction. A government that alternately blesses favored consolidations and threatens companies whose prices or politics offend it is not defending competition. It is replacing the rule of law with bargaining power.

Amazon, Meta, Google—and the demand to “break them up”

Several comments declared that Amazon, Meta, Google, media companies, BlackRock, Vanguard, or Berkshire Hathaway should be broken up. The list varied; the verb did not. But breakup is a remedy, not a mood. Before ordering it, government should define the market, establish market power, prove unlawful conduct or an illegal acquisition, demonstrate causation, and show that the remedy will restore competition without destroying efficiencies consumers value.

My essay discussed the FTC’s Meta case because the court found that the government’s market definition ignored TikTok and YouTube while insisting that Meta monopolized “personal social networking.” That is not a trivial technicality. Market definition determines which alternatives count. Excluding obvious competitors can manufacture monopoly power on paper, but it cannot make consumers stop using them.

This does not mean large technology companies are incapable of violating antitrust law. It means their liability cannot be inferred from their names, wealth, political unpopularity, or the identity of a newspaper’s owner. If Amazon excludes rivals unlawfully, prove it. If Google maintains monopoly power through anticompetitive agreements, prove it. If Meta made an unlawful acquisition, prove it under the relevant statute. “Everybody knows” is the beginning of a campaign speech, not the end of a lawsuit.

The inherited-name theory of antitrust

That brings me back to the personal attacks. My father’s critics have spent nearly half a century claiming that the consumer-welfare standard killed antitrust. The claim survives partly because it is easier to repeat than to explain. Federal and state enforcers still challenge cartels, mergers, and monopolization. Private plaintiffs still seek treble damages. Courts still impose injunctions and structural remedies. What changed was that antitrust became more firmly tied to economics, competitive effects, and administrable legal rules.

My father’s central insight was not that monopoly should be celebrated. It was that an antitrust policy without a coherent objective will be captured by competing political demands. One group wants high prices, another low prices; one wants small firms protected, another wants efficient distribution; one wants labor interests favored, another wants local merchants insulated from chain stores. Courts cannot maximize all of these at once. A consumer-welfare orientation gives antitrust a defensible purpose and a limiting principle.

Calling that “fascist,” “communist,” “neoliberal,” or “pro-oligarch” does not answer it. Neither does reciting controversies from my father’s judicial career. If a reader believes concentration should itself be unlawful, say what concentration level, in what market, subject to what defenses, and with what remedy. If consumer welfare should be replaced, identify the objective and explain how a court is to weigh workers, suppliers, competitors, consumers, innovation, political power, and national policy when their interests conflict. The moment one asks operational questions, slogans begin to wilt.

I am proud to defend my father’s antitrust work, but I do not ask anyone to accept an argument because he made it. I ask that it be judged by whether it is correct. I extend the same courtesy to his critics. Some of the commenters did not.

What the comments revealed

The comment section unintentionally illustrated the danger my essay described. Many readers began with a disliked identity—Bork, Bezos, Trump, Vance, corporation—and reasoned backward to guilt. The law must proceed in the other direction. It starts with a defined offense, examines facts, tests causation, and only then reaches a conclusion.

The substantive critics also revealed an important communication problem for defenders of markets. Many Americans hear “free market” and imagine a government that protects corporate incumbents, socializes their losses, grants them subsidies, tolerates their lobbying, and then lectures ordinary people about discipline. They are right to reject that arrangement. Markets deserve defense because they disperse decision-making, reward service to consumers, and constrain both private and public power—not because every large corporation is virtuous.

Antitrust belongs in that defense. Properly applied, it punishes cartels, protects the competitive process, and prevents firms from acquiring or maintaining market power through unlawful means. Improperly applied, it gives officials a roving commission to punish size, direct production, manage prices, and reward political allies. The difference is not whether enforcement is “strong” or “weak.” It is whether enforcement is principled.

So here is my answer to the commenters who made an argument. Investigate credible evidence. Prosecute actual cartels. Challenge mergers likely to harm competition. Attack exclusionary conduct that maintains monopoly power. Examine concentration carefully. Reject subsidies, protectionism, and favoritism whether demanded by corporations or imposed by politicians. But do not confuse a shortage with a conspiracy, a profit with a confession, size with illegality, or indignation with proof.

And to those who offered only “Bork,” “Bezos,” “nepo baby,” or an obituary for the wrong man: thank you for demonstrating how badly antitrust needs rules of evidence.

The second Trump administration’s continuation of Biden-era progressive antitrust enforcement has been an unwelcome surprise.

Some of these antitrust cases originated in the first Trump administration but were embellished as they were advanced by Lina Khan, Biden’s chair of the Federal Trade Commission. In one case, Trump enforcers continued to use Khan’s amended complaint that said Meta had an 85 percent monopoly on consumers’ time spent on the “personal social networking” market. U.S. District Judge James E. Boasberg dismissed the government’s case, noting that regulators had ignored new competitors to Meta such as TikTok and YouTube to bolster their claim that a monopoly existed.

The administration’s rhetoric is not much better. Vice President JD Vance recently called for a shift from Milton Friedman’s defense of free-market capitalism to a Hamiltonian focus on big-government projects, adding that the aim of government policy should be to make the economy “a tool to service the dignity of the human person.” Trump’s FTC chair, Andrew Ferguson, said government intervention is necessary “to restrict the exercise of liberty when that exercise of liberty meaningfully diminishes other people’s flourishing.”

References to “flourishing” over freedom are scattered throughout the speeches of Ferguson and his colleague, FTC member Mark Meador. Now Trump regulators are picking up yet another progressive trope: blaming businesses for inflation.

That approach echoes President Joe Biden’s 2021 announcement of 72 antitrust initiatives, which attributed stagnant wages and inflation to capitalist greed rather than excessive government regulation or debt levels exceeding those at the end of World War II.

So, when inflation increased food prices, Khan dutifully led an FTC strike force to probe grocers. When gasoline prices rose, she told the oil and gas industry that it was under the government’s microscope.

Not to be outdone by their progressive predecessors, the Trump Justice Department and 17 state attorneys general recently filed an antitrust lawsuit against egg producers after a price spike last year. The companies recently agreed to a $3.3 million settlement and promised to donate 53 million eggs to food banks and nonprofits, but did not admit to wrongdoing.

The department also called on state attorneys general to “use all tools available” under state law to investigate oil companies that, according to Trump’s public statements, did not drop their prices fast enough after the short-lived ceasefire with Iran took effect.

And just before the Fourth of July weekend, the Agriculture Department pressured grocers to lower beef prices.

If evidence emerges that companies secretly conspired to fix prices, they should be prosecuted. Price-fixing is one of the oldest and clearest violations of Section 1 of the Sherman Antitrust Act. It is theft by another name.

But an equally important principle is often lost in today’s political climate: High prices are not, by themselves, evidence of price-fixing. Sometimes they are simply due to the power of nature.

Egg prices, for instance, jumped last year after millions of egg-layinghens died or were culled in the bird flu epidemic. Today, egg prices are down about 43 percent from a year ago.

Beef prices are the clear result of America’s persistent drought. With the national inventory of cattle and calves at its lowest level in more than 75 years, it is no surprise that costs increased. Gas prices have been volatiledue to global oil supply disruptions caused by the conflict between the U.S. and Iran.

Unless secret agreements are unearthed between the producers of these goods, the Trump administration’s actions are a continuation of the Biden antitrust playbook that blames capitalism for the consequences of nature and policy.

A Republican administration adopting the Democrats’ hostility to business is a sea change in American politics.

Both parties now blame the market economy for high prices, even as companies are subject to extensive regulations. Worse, these accusations hide the real causes of dysfunction in American society. Those include unprecedented levels of debt, the perverse effects of overregulation and a public school system in which American students grossly underperform their peers in other developed countries.

Bashing business is no doubt cathartic, and it is certainly good politics. But it is not, as Vice President Vance says, a way to serve the dignity of the human person.

This article first appeared in the Washington Post.

The first round took place in an antitrust classroom at Yale Law School in 1971. Reich was a student. My father, Judge Robert Bork, was the professor. Bill Clinton and Hillary Rodham were among the students in the room. Reich recently revisited those debates in both a Substack essay and a YouTube video, blaming my father for what he calls the “monopolization of America” and arguing that Robert Bork bears primary responsibility for the rise of corporate power in modern America.

Reading Reich’s account, I was struck by something remarkable. After fifty-five years, Robert Reich is still arguing against a version of Robert Bork that never actually existed.

According to Reich, my father believed that the only legitimate purpose of antitrust law was to lower prices for consumers, regardless of how large corporations became or how much economic or political power they accumulated. Reich repeats this claim so frequently that it has become an article of faith among progressive antitrust critics. The problem is that it bears little resemblance to what my father actually wrote or what American antitrust law eventually became.

The consumer welfare standard was never simply a price standard. It encompasses output, innovation, quality, efficiency, consumer choice, and long-term consumer welfare alongside prices. Modern antitrust cases involving pharmaceuticals, technology markets, exclusionary conduct, and nascent competition are litigated under the consumer welfare framework even when price effects are not the central issue. The notion that Robert Bork reduced antitrust analysis to the question of whether milk cost a nickel less at the grocery store is not serious intellectual history. It is political folklore.

What my father opposed was something entirely different. He opposed transforming antitrust into an all-purpose political instrument for addressing every social concern associated with large corporations. Reich’s recent writings make clear that this is precisely the transformation he seeks.

In a June Substack post, Reich explicitly argues that corporate concentration should be viewed as problematic “even if it provides economies of scale that might allow lower consumer prices in the short term.” That sentence deserves more attention than it has received because it lays bare the fundamental divide in modern antitrust. Reich is openly acknowledging that consumers may receive lower prices and the economy may benefit from efficiencies, and yet he would still have regulators intervene because he objects to the size, influence, or political implications of the firms involved.

Once that step is taken, antitrust ceases to be competition policy and becomes industrial policy. Regulators are no longer asking whether consumers are harmed but whether they approve of the structure of an industry or the political influence of the companies operating within it. The question shifts from economics to politics, and the answer inevitably depends on who happens to control the government at the time.

Ironically, Reich himself reminds us why my father’s approach proved so influential. Reich recalls challenging my father in class about the political power of large corporations and remembers my father’s response: “How do you expect courts to measure political power?” Reich presents this as a dodge or an evasion. In reality, it was probably the most important antitrust question anyone asked in the second half of the twentieth century.

How exactly should courts measure political power? Should judges examine campaign contributions, lobbying expenditures, media ownership, public relations spending, or the number of meetings executives have with members of Congress? Suppose a merger lowers prices by ten percent, increases output, and produces a better product, but also increases lobbying expenditures in Washington. Should the merger be blocked? If so, where is the formula that tells us when political influence outweighs consumer benefits?

Neither Reich nor the modern neo-Brandeisian movement has ever supplied an answer because no objective answer exists. Once antitrust abandons measurable competitive effects as its organizing principle, it becomes an invitation for regulators to pursue whatever social objectives they find attractive. One administration may use antitrust to promote labor interests. Another may use it to protect small businesses. Another may use it to advance domestic manufacturing or environmental goals. Another may use it to punish politically unpopular firms. The law becomes less a body of legal principles than a collection of policy preferences enforced through litigation.

That was precisely the problem my father confronted in the 1960s and 1970s. Before Robert Bork, antitrust law had become increasingly detached from economics and consumer welfare. Courts blocked mergers because firms were considered too large, condemned aggressive price competition as predatory, and often protected competitors from competition itself. Businesses learned that antitrust law could be used as a weapon against more efficient rivals rather than as a shield for consumers.

My father’s contribution was not to weaken antitrust but to discipline it. He insisted that antitrust law answer a simple question before intervening in markets: where is the harm to consumers? That requirement imposed analytical rigor on an area of law that had become notoriously unpredictable and inconsistent. It also explains why judges and scholars across the ideological spectrum eventually embraced large portions of his framework.

Reich’s current arguments suffer from many of the same weaknesses as his arguments in 1971. He treats concentration as evidence of monopoly and monopoly as evidence of consumer harm. But those are separate propositions requiring separate proof. Firms often become large because they innovate, lower costs, improve products, or create entirely new markets. Consumers were not forced at gunpoint to use Amazon, Google, or Apple. Market success may justify scrutiny, but it is not itself proof of anticompetitive conduct.

Reich also repeats the increasingly fashionable claim that corporate concentration was a major cause of inflation in recent years. Apparently, corporations discovered greed in 2021 after declining to exercise it during the previous four decades. The inflation surge that followed the pandemic occurred across countries with very different levels of concentration and very different competition policies. Fiscal stimulus, monetary expansion, supply chain disruptions, and energy shocks provide a far more convincing explanation than the sudden moral deterioration of corporate America.

Perhaps the greatest irony is that Reich and his allies eventually received exactly the opportunity they had sought for decades. The Biden administration’s antitrust agenda represented the most direct challenge to Robert Bork’s legacy in a generation. Lina Khan and her allies promised to move beyond consumer welfare and use antitrust to address concentration, labor concerns, inequality, and political power.

The courts responded by asking the same question Robert Bork had asked fifty years earlier: where is the evidence of competitive harm? Again and again, regulators offered theories about concentration, size, and influence without demonstrating likely injury to consumers or competition. Again and again, courts rejected those arguments, including courts presided over by judges appointed by Democratic presidents.

Today I serve as President of the Antitrust Education Project and continue to write and speak in defense of the consumer welfare standard, including in my recent book, cowritten with Mark W. Davis, The New Paradox: Antitrust and the Threat of Conservative Socialism. I do so not simply because Robert Bork was my father, although he was, but because the central questions he raised remain unanswered.

The debate was never about whether corporations possess power. Of course they do. The real question is whether antitrust law should operate according to objective rules designed to protect competition and consumers or whether it should become a vehicle for implementing the political priorities of whichever administration happens to hold power.

has spent fifty-five years criticizing Robert Bork’s answers. What he still has not done is answer Robert Bork’s questions.

Please enjoy Chapter 7 of our new book!

“Khanservatives” understandably want to use antitrust to hurt large social media companies as payback for years of being deposted, deplatformed, and silenced on social media. Conservatives are also smarting over the way they were snidely denigrated by elites, and their values demonized by trend-setting media and corporations. C-suite executives warped their corporate cultures to enforce far-left ESG and DEI mandates, while cancel culture enforcers stood at the wings to remove dissenters from the national debate.

When conservatives made forceful accusations that they were being censored online, they were ridiculed for sounding like General Jack D. Ripper in Strangelove, wringing their hands about fluoridation and our precious bodily fluids. “It’s even in little children’s ice cream!” Conservatives were told that social media platforms have an obligation to remove content that could be considered an echo of hostile foreign disinformation, or misinformation, or hate speech. But social media remains a robust forum for all views, we were told.

Now we know that we conservatives were perhaps not paranoid enough.

Thanks to journalist Matt Taibbi, we now know that the pre-Elon Musk Twitter had contacts with as many as 80 FBI and Department of Homeland Security agents on a special social media task force to flag accounts for deletion. Many accounts, including parody accounts, were removed. On Facebook and other social media sites, teams of “fact checkers” removed posts or shadow banned them. But what was unseen by conservatives was how hard the government twisted the arms of social media companies.

“I mean basically these people from the Biden Administration would call up our team and like scream at them and curse,” Mark Zuckerberg told Joe Rogan shortly after Donald Trump’s election. He said that the government told him to remove a parody post about Leonardo DiCaprio watching a TV ad ten years in the future saying that if you took the COVID-19 vaccines, ‘you might be eligible for compensation.’ “You have to take that down,” a government agent told Zuckerberg, who responded: “We’re not going take down humor and satire. We’re not going to take down things that are true.”

But media companies often did take down things that were true, or at least arguable. They did it because they are highly regulated businesses, the reason why Shari Redstone agreed to pay $16 million to settle a frivolous lawsuit. When a powerful agency or the White House itself told a social media company to take down a post, such “jawboning” was not taken as a suggestion. Meta learned this the hard way, resisting continuous demands to remove content. In 2021, President Biden held a press conference to accuse social media companies of “killing people” with misinformation. It is in this context—the progressive desire to control speech—that the Biden-era antitrust actions, now being continued by the Trump Administration, should be seen. “All these different agencies and branches of government basically just started investigating, coming after our company,” Zuckerberg said. “And it was brutal.”

Antitrust, one of the most powerful weapons of government can wield against business, was always lurking in the background like Al Capone and his baseball bat when jawboning and censorship were in play.

Federal agencies across the alphabet were deployed to control speech. Consider how the now-defunct Global Engagement Center of the U.S. State Department used its $61 million budget and 120 employees to censor Americans on social media. Federal agencies ranging from the FBI to the CIA, Department of Homeland Security and the Pentagon provided “guidance” for Twitter, Facebook, and Google on who to depost and what content to remove. It was thanks to these efforts that what the CIA and FBI today acknowledge is the likeliest origin for the COVID virus—a lab leak in Wuhan, China—was deemed a dangerous conspiracy theory that had to be suppressed. The GEC also made direct grants to the London-based Global Disinformation Index, which distributed blacklists to corporations about websites deemed to be chocked full of “disinformation” and therefore risky to an advertiser’s reputation. These exclusion lists targeted The American Spectator, Newsmax, The Federalist, The American Conservative, The Daily Wire, and The New York Post. The blacklist also included that notorious, error-riddled, utterly biased rag known as Reason magazine, which in truth is just about the most conscientious, well-informed, painstakingly honest publication you could possibly find.

The worst aspect of this censorship was that it was performed in total secrecy. There’s a dark joke about brain surgeons—if a scalpel slips, a surgeon says, “Oops, there goes the violin lessons!” In a similar way, secret task forces were eliminating thoughts and pulling ideas from the national brain. That alone ought to put to rest any doubt that there is, in fact, a deep state.

How the Left Migrated from the Constitution to Censorship

The Biden years saw the full emergence of an open leftwing ideological war on the First Amendment. This is little more than ironic. Conservatives once criticized liberals as being too extreme in defense of free speech, whether the speech was that of the Klu Klux Klan, D.H. Lawrence’s Lady Chatterley’s Lover, or the dirty-word humor of Lenny Bruce. The American Civil Liberties Union, supported and run by many prominent liberal Jewish lawyers of distinction, went so far as to defend the speech rights of American Nazis. Agree or disagree with that stance, (and I respectfully disagree), there was something noble about Americans who valued the First Amendment so much that they would support the rights of people to advocate an ideology that called for their extermination.

Nadine Strossen, the former president of the ACLU, once said: “Freedom has its risks. Suppression of freedom, I believe, is a surer prescription for disaster”—began to be marginalized by progressives, as if the First Amendment were nothing but an antiquated legacy from the era of wigs and carriages. The takeover accelerated in 2018 when Alexandria Ocasio-Cortez took off her bartender’s apron and leapt over the bar to defeat Rep. Joe Crowley, a Brooklyn Democrat who was in the House leadership and often considered a future speaker. The rise of AOC signaled the far-left takeover by the explicitly socialist Bernie Sanders wing of the party, outliers like Zohran Mamdani who took center stage by ousting or cowing the traditional liberals in the Democratic Party clinging to their old-fashioned free-speech beliefs.

With this takeover came an attempt to degrade the First Amendment. An exemplar of the new left is Mary Anne Franks, former Rhodes Scholar and law professor at George Washington University, who wrote a celebrated book entitled Fearless Speech: Breaking Free from the First Amendment.

“Can we finally say and admit to ourselves that the First Amendment is not this noble principle?” Franks said in a TechPolicy interview promoting her book. Franks described the First Amendment as mostly “a tool” to “crush the people who are trying to advocate for equality, and it’s going to be used to protect the people who are trying to preserve the status quo.” Franks would replace the First Amendment with a system that makes a distinction between “reckless speech” that endangers vulnerable groups and “fearless speech” that seeks to advance equality and democracy. Franks has proposed rewriting the First Amendment to remove the Freedom of the Press clause. And what does Mary Anne Franks teach? Civil rights law.

She is not an outlier, but the natural result of an illiberal strain of the left that can be traced back to the writings of Herbert Marcuse. This 20^th century neo-Marxist, neo-Freudian philosopher made an argument in his essay, “Repressive Tolerance,” that that the “Left has no equal voice, no equal access to the mass media and their public facilities—not because a conspiracy excludes it, but because, in good old capitalist fashion, it does not have the required purchasing power.” If it was ever true, this assertion has not aged well in the era of MSNBC, CNN, The New York Times and other mainstream media.

Anticipating Franks, Marcuse mourned that “the stupid opinion is treated with the same respect as the intelligent one, the misinformed may talk as long as the informed, and propaganda rides along with education, truth with falsehood. The pure toleration of sense and nonsense is justified by the democratic argument that nobody, neither group nor individual, is in possession of the truth and capable of defining what is right and wrong, good and bad …” Marcuse then went on to assert that “liberating tolerance, then, would mean intolerance against movements from the Right and toleration of the movements from the Left.”

To believe that such censorship is a good idea would require one to discard any knowledge of how the French and Bolshevik revolutions unfolded. If such a system of coerced speech were ever implemented, history strongly suggests that movements of the Left would soon turn against each other, with the censors censoring those who were not leftwing enough, or the wrong kind of left, who deserve to become “deviationists” without speech rights. Given that laws are ultimately enforced by power, such a scheme could only result in mass persecution and ultimately bloodshed. Then there is the idiocy of entrusting self-selected experts to decide “what is right and wrong, good and bad.” The Founders of this country understood that no one can be trusted with such power. Conservatives, above all, should be wary of any scheme to manage speech—including through their own misuse of antitrust law.

A more sophisticated critique of the First Amendment comes from Tim Wu, who coordinated progressive antitrust policies across federal agencies for President Biden. He wrote a New York Times essay, “the First Amendment is spinning out of control.”

Wu objects to the Supreme Court opinion in United States v. Alvarez that the First Amendment protects “even outright lies.” Jacob Sullum of Reason (that magazine our government secretly warned advertisers is too dangerous to do business with) wrote: “As Wu sees it, freedom of speech should hinge on the ‘value’ of the ideas that people express. It is hard to imagine a broader license for government censorship.”

Censorship came not only from social media companies, but from the provision of corporate services. One day in 2022, Sam Brownback a former U.S. senator, governor of Kansas and ambassador went to a Chase Bank to make a deposit for the nonprofit organization he headed, the National Committee for Religious Freedom. Brownback was told that his account had been cancelled. He had fallen into Chase’s “reputational risk” category. Now President Trump has directed OPM to remove subjective political categories like reputational risk as an excuse for debanking.

The obvious high-school civics class objection to Franks and Wu is who gets to decide what is “reckless speech” and what is “fearless speech”? Who parses which ideas have enough “value” to be expressed? To be fair, Wu grapples with the toxic tendency of social media to drive polarization. Society and people across the ideological spectrum are feeling the effects of algorithm’s tendency toward the divisive, the negative, and the untrue. But an extreme solution—government regulation of speech—guarantees to be a cure worse than the disease, as Strossen warned.

Intellectuals of all stripes once appreciated this. Yet such anti-free-speech views are not just being advanced by policy intellectuals. They are being pushed from the political top, down. Former U.S. Senator, Secretary of State and almost-president John Kerry told audience members at the World Economic Forum that in regard to disinformation “our First Amendment stands as a major block to the ability to be able to hammer it out of existence.”

The government agencies supporting and fomenting secret blacklisting of conservative speech were not freelancing. They had the support of President Biden, Vice President Harris and other leaders of the Democratic Party. One key to their dominance of the national debate for years was to control social media. And they did this by keeping social media companies, as Mark Zuckerberg explained to Joe Rogan, in the constant thrall of government. A key weapon in the hands of government was antitrust enforcement as the means to intimidate social media companies into fulfilling its secret orders to remove content.

The reports on censorship from Jim Jordan, Chairman of the House Judiciary Committee, his colleagues and staff make for scintillating reading. The committee documented the elaborate workings of the government censorship machine. They also exposed the political abuse of neutral antitrust law, based on the neutral Consumer Welfare Standard. You would think that this should be the last thing any conservative would want to resurrect. The path from being a victim of censorship to being a censor has its roots in this victimization.

“That a corporation can’t compel anything at the point of a gun is cold comfort when it can cut you off from commerce, speech, and even your bank account,” FTC Commissioner Mark Meador has said. “Human flourishing can be crushed by much less than a standing army. Likewise, economic transactions with a monopolist—or dominant competitors acting in concert—are anything but voluntary; by definition there is no meaningful alternative, and the terms imposed can be coercive.”

Meador makes a powerful statement that encapsulates the justifiable rage of conservatives over their mistreatment during the Biden era. But there are several things wrong about that statement as well. First, it is vastly overstated. Debanking and deposting, though outrageous and un-American, did not begin to stem the tide of conservative criticism of the progressive left. The last four years were hardly a hellscape for conservative content, much of which I happily followed on Facebook and pre-Musk Twitter. Second, corporations acted under pressure from the Biden Administration and its many agents. When that pressure ended with the election of Donald Trump, so did those policies. Third, reinstituting conservative content moderation by the disingenuous use of antitrust and other official powers only ensures that what were anomalies in American history become institutionalized practices that will be used against conservatives by the next progressive administration.

Is Conservative Censorship Better?

Early in his tenure, FTC Chairman Andrew Ferguson sent out a notice that his agency was seeking public comment on “technology platform censorship.” This sounds, at first, like a commendable examination of the problem of the last administration’s censorship and bias in Silicon Valley. In the hands of the FTC and its bureaucracy, however, examination of this problem threatens to become the problem itself.

Ferguson told CNBC that, if companies are kicking people off platforms for holding particular views, “that could be an indication that there’s a competition problem ... and competition problems are my job.” An antitrust complaint against social-media platforms on content censorship would add one more authority to former FTC Chair Lina Khan’s expansion of antitrust to address a parade of grievances—the fate of inefficient competitors, correcting racial injustice, promoting labor unions—not found in antitrust law, precedent, or the powers Congress granted to the agency.

If Ferguson is considering managing speech through other FTC powers, perhaps a consumer-protection complaint, that too would insert government deeply into the management of speech. Courts have upheld the ability of the FTC to crack down on deceptive speech that is solely commercial. A company that advertises its face cream as a cure for cancer would have no First Amendment defense against serious legal jeopardy. But when people express opinions on political and social issues, or a media company exercises its speech rights to make its own editorial judgments, we are deep into the protective territory of the First Amendment—something that FCC Chairman Carr seemed not to care about in putting the weight of his agency behind the frivolous lawsuit against CBS.

The new ability of the government to question the editorial decisions of a news organizations opens the way to the regulation of thought. If a conservative expresses the opinion that cutting taxes will result in economic growth that will increase the tax base and thus increase tax revenue, is that a truth or a lie? If a liberal proposes billions of dollars for mass transit, arguing that it will pay for itself by reducing productive time wasted in a traffic jams, is that a truth or a lie? Either may be right or wrong. But Carr and the FCC and Ferguson and the FTC have no business adjudicating such questions.

Ferguson seems intent on mirroring the thinking of Tim Wu, who wrote that: “In an information industry the cost of monopoly must not be measured in dollars alone, but also in its effect on the economy of ideas and images, the restraint of which can ultimately amount to censorship.” Ferguson and Meador have made many statements that are reverse-image reflections of Wu. They mirror the Marcusian thinking that the problem with America today comes not from the government and the breakdown of constitutional principles, but the ownership of media.

Are a handful of companies truly constricting the nation’s ideas? This view is wrong on two counts. First, for all the overbearing presence of the large social media platforms, no social media company has anything close to a monopoly on the public’s attention, surely not as much as the three major networks did a few decades ago. If consumers are receiving one-sided information of the left or the right, it is not because of monopoly, but because that they are now free to click their own sources of news. Second, social media platforms run third-party content rather than content that they produce themselves. If these platforms remain free of a degree of government censorship, which they have been since January, we should be exposed to more ideas than ever before.

This is not to deny that there is much to Wu’s point that algorithms serve users content that they continue to favor, creating the dangers of left and right echo chambers. People choose what they want, that’s the essence of free speech. If there is a problem here, it is inherent to profit-seeking social media entities of any size. But government censorship and aggressive antitrust are solutions that are sure to yield far greater evils than echo chambers.

As Ari Cohn wrote about Andrew Ferguson’s gambit on FIRE’s website: “In reality, the Chair is angling to label editorial decisions he doesn’t like ‘unfair or deceptive trade practices.’” But consumer protection law is no talisman against the First Amendment, and the FTC has no power here. The simplified formulation of Ferguson’s argument is this: If social media platforms are not adhering to their content policies, or “consistent” (whatever that means) in their enforcement, they are engaging in “false advertising” that harms consumers. Calling something censorship doesn’t make it so, and framing content moderation as ‘unfair or deceptive trade practices’ does not magically sidestep the First Amendment… Content policies and moderation decisions made by private social media platforms are inherently subjective editorial judgments.”

There is a common misconception that social media companies and media outlets in general are obligated by the First Amendment to be fair and allow all to post. The First Amendment, as we have seen, only applies to the government. If they wanted to, Facebook could block every conservative, X could block every liberal, and Instagram could use AI to put a funny mustache on every image of President Trump or AOC. As the U.S. Supreme Court affirmed in Moody v. NetChoice, the First Amendment protects the right of social-media companies to select, order, and rank third-party posts as they see fit.

This is not to say, however, that conservatives who raise the First Amendment lack a point. These social media sites may not have a legal obligation to post someone’s content (unless you buy the FTC’s theory that their content moderation promises in the terms of service trumps the First Amendment). But given that a handful of social media platforms constitute so much of the national townhall, it is clear that they have a social and moral obligation to be open to the nation’s diversity of opinion.

Conservatives should take note of how social-media companies are acting now. X pioneered the freeing of moderation from government control. Meta is testing the “community notes” technology, first developed by X, to crowdsource facts in posts on Facebook, Instagram, and Threads. Meta also dropped its notoriously biased “fact checkers.” Google is changing its corporate culture, cracking down on the tail-wagging-the-dog demands by activist-employees.

You could say that Silicon Valley’s change of heart conveniently came about after the election of Donald Trump. Or you could attribute this change of heart to Trump’s exposure of the extent to which social media companies were intimidated by Lina Khan and the Biden censorship machine. Whatever the reason, once the boot was lifted from their necks, these companies have moved with alacrity to reform content moderation and allow conservatives a freer space.

Should we worry about the possible return of censorship? If the nation elects another progressive president, would social media companies shuck off their current penitential posture and fall back in line with the demands of government censors? The answer may well rest on whether media companies today knuckle under to Chairmen Carr’s and Ferguson’s evolving scheme to either use merger authority or the FTC’s consumer protection powers to regulate speech.

Perhaps a better and more durable solution to the threat of future censorship, or at least a protection against that threat, can be found in Section 230 of the Communications Decency Act. This law grants liability protection to internet companies for third-party posts. Those conservatives who speculate about removing this shield see it as a way to really stick it to social media platforms on which they’ve been mistreated. Such a move would also “stick it” to virtually every online service—from travel sites to review sites of all sorts. It would ensure that the social media that remains would become nothing but the most inane and utterly safe content to post. Anything edgy or political would be too risky to run.

But there is no reason why Congress cannot require social media companies to adhere to some basic standards of fairness and openness in exchange for their liability protection. It would be perfectly reasonable, for example, to require platforms to have clear policies for removing posts, to explain to the user why they’ve been deposted, and to give that user a ready means of appeal. We should also look to encourage social media companies to embrace this new era of greater openness to make receptivity to divergent political views a key element in their terms of service. We’ll take a closer look at this idea at the end of this chapter.

Such practices could prevent a return to censorship of the sort that still remains in Europe. Vice President J.D. Vance stood before European leaders to fiercely denounce Europe’s censorship disguised as crackdowns on “hate speech.” In the United Kingdom, the Public Order Act and other statutes have enabled police visits, investigations, and arrests of Britons for tasteless jokes. British citizens have been arrested for praying silently in the vicinity of an abortion clinic. In Germany, citizens can be prosecuted for “public insults against politicians,” “spreading malicious gossip,” “inventing fake quotes,” or even reposting “lies” online. For such “crimes,” Germans can be fined, have their devices confiscated, or even go to prison. Europe, Vance said, is in retreat “from some of its most fundamental values.” At home, President Trump’s executive order against censorship put a stop to America’s slide down that slippery slope.

This is what we cannot allow to happen in America. A true conservative—like a true liberal—holds the conviction that, over time, the combative process of competing claims will winnow out the truth. This may sound naïve in this age of polarized narratives, but we should hold fast to the hope that, with freedom, Americans will break through ideological silos to promote real, productive debates.

Conservatives more than anyone should be especially wary of going down the path Ferguson and Carr are exploring. If we extend the purview of antitrust law or consumer protection to govern speech, the next progressive administration will be handed a powerful weapon. You can count on progressive lawyers to invert principles of free speech protection into government-approved speech codes along the lines of those advocated by Tim Wu and Mary Anne Franks.

The Enduring Example of the ESG Speech Police

If Andrew Ferguson wants to use his powers to defend speech, he should take a harder look to the long-running antitrust violation called ESG—the environmental, social, and governance standards enforced by a network of big funds and nongovernmental organizations.

Until recently, large investors who managed a total of $70 trillion in assets were signed up with Climate Action 100+, a network of corporations and NGOs who coordinated to bring progressive environmental and social policies into the boardroom. Additional political and financial heft came from CalPERS, the activist pension fund for California public employees, as well as the pension funds of New Jersey and New York.

The initial goals of the ESG movement were commendable—a long-term commitment to slash carbon emissions and support equality with strong corporate governance. From the start, however, there was an iron fist beneath the green-velvet glove—large funds and businesses needed to be aligned or they would suffer bad ratings, reputational attacks, and shareholder lawsuits from activist organizations.

NGOs like As You Sow and Mercy Investment worked in this space to judge companies according to their ESG performance and wage activist campaigns to make them adhere to those standards. The two companies that manage almost all proxy-shareholder services in America, Institutional Shareholder Services (ISS) and Glass Lewis & Co., provide ESG ratings for companies. As the different parts of the ESG network began to coordinate, they worked as a cartel in the restraint of a legal trade, a violation of the Sherman Antitrust Act in plain sight.

Companies that made conscientious efforts to meet the standards saw less recognition and more reputational harm and legal threats with the moving of goalposts. One Fortune 500 oil and gas executive told me that his company’s commitment to steadily reduce carbon emissions was replaced by a flat demand to “align with Paris” and eliminate all such emissions by 2050. In other words, put yourself out of business. “You’d think they’d be happy with our ESG performance,” one executive, whose company had slashed emissions, told me. “But we’re besieged with proxy proposals and board fights.”

The ESG movement also enforced speech codes, persuading companies to adopt its vague rating standards according to Diversity, Equity, and Inclusion standards. ESG means higher energy prices for the working poor, and DEI ignores the actual economic needs of the working poor, while expanding the number of “stakeholders” deserving of a say in corporate policy, without distinguishing between contractual stakeholders (customers, employees, and suppliers) and non-contractual stakeholders (the community, the environment and “the planet”). Then ESG reframed the plain meaning of the principles, such as sustainability, to which corporate leaders agreed when joining. The ESG cartel expanded its list of demands from environmental goals into a progressive, partisan wish list. This is especially pernicious, twisting social responsibility to mean controlling the First Amendment—protected speech and political leanings of private companies.

For example, progressive shareholder advocate As You Sow filed a proposal in 2023 with the Coca-Cola Company seeking information on how laws restricting abortion would negatively impact the company. This was one of 31 such shareholder proposals involving abortion and “reproductive freedom” in that year. Regardless of one’s views on abortion, corporate leaders were left to wonder what it has to do with the management of their companies and future risks and returns. The cartel’s tenuous link between abortion and corporate earnings is that “companies succeed when employees thrive.” Which, somehow, means restrictions on abortion are a threat to the bottom line. Coca-Cola shareholders begged to disagree.

Many ESG initiatives originate with SEIU, the service employees’ labor union that for many years has been the nation’s largest funder of Democratic campaigns. More muscle comes from the large pension funds of big blue states that are dedicated to advancing progressive policies. No surprise, then, that progressive shareholder advocates last year filed ten proposals involving criticism of a company’s decision to donate to pro-life candidates (all of whom happen to be Republicans).

On the “S” side, one executive told me of his company’s stellar record for diversity and for providing jobs in low-income communities. But his company’s rating was severely downgraded because it donates money to free-market, business-oriented nonprofits. He was told by an NGO that “we disagree with your alignment” in political donations. As 21 Republican state attorneys general noted in an open letter to asset managers, some proposals would force companies to vet their donations through approved third parties. Such proposals, he said, “are focused on denying donations to Republicans.” The reasoning behind this effort is that donated funds given to Republicans are the same as “attacks on voting rights, efforts to deny climate change, and efforts to impose extreme restrictions on abortions.”

Sen. Ted Cruz put it succinctly: “That is not capitalism, that is abusing the market.”

Widespread resentment by corporate boards about the encroaching power of this cartel led to the widespread abandonment of ESG by most of corporate America, even by Blackrock. The election of Donald Trump cemented it. But two ESG offenders should attract the ire of Trump regulators for antitrust enforcement.

Antitrust and the Proxy Duopoly

Jamie Dimon didn’t just say the quiet part out loud. He said the quiet part loudly.

For years, CEOs complained in private but minced around in public about the outrageous business model of ISS and Glass Lewis, that duopoly that has a stranglehold on the proxy advisory business.

The JPMorgan CEO, speaking at a BlackRock summit in Washington, D.C., called out the proxy advisory firms, demanding an end to their duopoly. Dimon called them “incompetent.” In 2023, the American Council for Capital Formation revealed 64 major complaints to the Securities and Exchange Commission about these firms making basic mistakes and issuing inaccurate proxy adviser recommendations. This is believed to be just the tip of the iceberg because companies, unlike their proxy advisors, must assume legal liability to submit a filing to the SEC.

“They should be gone and dead,” Dimon said of ISS and Glass Lewis. “Done with.”

ISS, owned by Deutsche Börse, and Glass Lewis, owned by a Canadian private equity firm, together control 97% of the proxy advisory market in the United States. Incompetence is to be expected with a lack of competition. But these two firms deserve antitrust trust scrutiny for another reason. They exploit their position to create problems for their clients and then force them to buy the solutions.

Dimon called out their closeness to progressive NGOs, which rate companies on how left-wing trust fund babies judge them by their ESG metrics. Glass Lewis advises some of these activist investors in running campaigns against companies. ISS rates the ESG “performance” of companies. Then, when a company is found to be morally deficient by the proxy advisors on ESG and DEI (though these acronyms were largely dropped after the election of Donald Trump), these two companies sell them consulting services. What do those services do? They help companies defend themselves against such NGO-inspired proxy attacks.

In late 2025, President Trump issued an executive order directing the FTC, as well as the Securities and Exchange Commmission and Department of Labor, to increase oversight of proxy advisors and assess their practices. President Trump directed FTC to work with the Attorney General to assess whether proxy advisors “engage in unfair competition or deceptive acts (e.g., collusion, conflicts of interest, inaccurate information, or other factors that prevent investors from making informed decisions.)”

Could Chairman Ferguson face a clearer cause to launch an antitrust action? Two firms dominate a must-have service for all public companies. By the admission of one of their top customers, Jaime Dimon, they are incompetent. These two firms work with NGOs to manufacture problems for their clients. Then they sell them the fix.

The FTC complaint practically writes itself.

Freedom and the Rule of Reason

Even with an administration aggressively ending government censorship, it would be a mistake to declare victory. The mechanisms of censorship could be easily reconstituted by a future president. The same people who deplatformed Donald Trump are still running the major social media platforms. The impulse to silence conservative voices remains strong among elites in both the mainstream media and many likely returnees from the revolving door back into top jobs in the next progressive administration.

But it would also be a mistake to ignore what has been achieved. Donald Trump’s return to the White House upended and destroyed the federal censorship machine for now, with entities like the State Department’s Global Engagement Center swept into history’s dustbin. The FBI under Director Kash Patel is comprehensively out of the censorship business, and the bureau is not likely to forget the painful backlash for once having engaged in it. Silicon Valley has acknowledged its abuses and made structural changes to content moderation, such as the adoption of a community approach to vetting facts—allowing many people representing all points of view to debate the truthfulness of a post, rather than trusting a faceless factchecker to decide for us all what is true and what is not.

It would be a monumental act of self-defeat, then, for conservatives at this high point of their power to continue down the Khanservative path of expanding the thrall of progressive antitrust over all American business to get even with a handful of companies for past injuries. This would ultimately give regulators the means by which to bully all businesses, control the economy, and again censor speech.

The Trump Administration and Republican Congress are working to erect institutional and legal barriers to the federal agency interference we witnessed over the Biden years. Congress also needs to think through a way that would fully prevent a return to social media censorship, while respecting the First Amendment and the right of social media platforms to keep violent threats and obscenity off their sites.

A “User’s Bill of Rights” might be the way forward. An idea of what such a solution might look like can be seen in the Internet Platform Accountability and Consumer Transparency or PACT Act, sponsored in the last Congress by Sen. John Thune, Republican from South Dakota and now Senate majority leader, and Sen. Brian Schatz, Democrat of Hawaii. The PACT Act would modify Section 230, the law that gives platforms immunity from liability from third-party posts. Rather than to continue to gift this liability protection, the PACT Act would strike a grand bargain—in exchange for these protections, platforms would have to offer clear standards for content management, and give due process for users to challenge the removal of a post.

An ideal bill would be stronger. It could expedite adjudication on posts with partisan or political content. It could make the deliberative process of social media companies even more public. It could give groups that have been demonetized greater standing in court. There are such ways for conservatives—and speakers of all ideological stripes—to address censorship without handing what’s left of the free market over to government regulation through antitrust law.

We should require more transparency and accountability from Silicon Valley in the protection of speech. But if we turn antitrust enforcement into a steroidal gorilla to manage speech and content, we will be handing the next progressive president and his minions the perfect tool to enact socialism and turn speech protection once again into government-approved speech codes.

You will suffer, but you won’t be able to complain.

Robert Bork and Joseph Coniglio cover what’s happening now in antitrust policy, Trump-era antitrust continuity, and why antitrust is the wrong tool for speech issues.

The sound of leather slapping marble will undoubtedly be the response of many Republican careerists today as they run from reporters and constituents wanting to ask questions about the stinging critique of President Trump by his former Vice President, Mike Pence, in a piece that is a shrewd call-back to Ronald Reagan: “A Republican Time for Choosing.” That piece, excerpted in The Wall Street Journal from Pence’s upcoming book, is a roundhouse punch of rhetoric, a philippic that catalogs the increasingly big-government populist agenda of the second Trump Administration.

Pence is sure to come in for attacks by the beehive of trolls and ghoulish influencers of the post-conservative populist right. But after reading this fact-based and well-reasoned piece, conservatives and Republicans should ask themselves: Do I really disagree with Pence?

Pence chronicles many—though by no means all—the ways in which Donald Trump’s personalistic agenda is antithetical to conservative principles.

“Where Mr. Trump once . . . wanted businesses to flourish in a free-market system, he brought about partial federal ownership of several corporations. Where he once wanted to engage with the world and lead, he has increasingly withdrawn from it and sought to isolate the U.S. from its longtime allies. Where he once defended free markets and expanded international trade, he embraced broad-based tariffs, protectionism and price controls on prescription drugs and credit cards.”

We would add that President Trump is firing off executive orders and ordering selective investigations to target political enemies—some of whom themselves were not adverse to misusing official powers against him—for possible prosecution. His regulators have pioneered new powers for the Federal Communications Commission and Federal Trade Commission by misapplying regulations and twisting rules to punish news organizations the president hates. They seem unconcerned that the next progressive administration will undoubtedly use these new powers to persecute conservative voices and outlets.

And this administration continues—without changing a jot or a tittle—the antitrust guidelines of President Biden and his FTC Chair, Lina Khan. Self-styled “Khanservatives,” from Vice President J.D. Vance to Sen. Josh Hawley, style themselves as Teddy Roosevelt-era progressives. The Missouri senator proposes vast expansions to the FTC’s powers and budget, and outlawing any mergers or acquisitions by large companies.

And these are the conservatives who call other Republicans “RINOs”?

At the heart of Pence’s critique is the distinction between principles and populism.

He writes: “Populists follow urges, not principles. They would erode our commitment to the Constitution and abandon U.S. leadership in the world.” Pence reminds us of a 2022 Truth Social post by Donald Trump justifying “the termination of all rules, regulations, and articles, even those found in the Constitution” to overturn what Trump called the “massive fraud” of the 2020 election.

This is the antipode of a conservatism that rests on a healthy skepticism of centralized authority and fierce opposition to personalized law. Conservatives recognize that free markets are not merely efficient mechanisms for producing wealth. They are also systems that disperse power, preserve individual liberty, and limit the ability of government officials to make economic decisions on behalf of millions of Americans.

The framework of conservatism is a governing philosophy rooted in constitutional limits, economic freedom, a strong national defense, and a recognition of human fallibility. Because people are imperfect, power must be constrained. Because government officials are no wiser than the citizens they govern (if that), decisions should remain as close as possible to individuals, families, communities, and markets.

Pence writes, “Rather than uphold American colonists’ rebellion against monarchical government, populism clamors for centralization to advance its version of the common good.”

Republican populism is progressivism in disguise. It strikes at us not just from a Democratic Party now wholly run by socialist progressives, but from within our own ranks, sparking a battle for the soul of the Republican Party.

This is a new reality but an old choice. In his “A Time for Choosing” speech, Ronald Reagan said:

“You and I are told increasingly that we have to choose between a left or right. There is only an up or down: up to man’s age-old dream—the ultimate in individual freedom consistent with law and order—or down to the ant heap of totalitarianism.”

Our choice is whether the GOP will be restored as the party of limited government, free markets, and constitutional principles, or continue to drift toward a form of populism that’s just a Trump-tinted version of what the other progressive party offers.

When the federal government sued Google for monopolizing online search functions, many assumed the outcome was inevitable. Google is huge. It dominates search. It pays billions to Apple and others to remain the default search engine on smartphones and browsers. With federal Judge Amit Mehta declaring Google a monopoly, this seemed like a watershed moment—like the crackdown on Microsoft’s exclusionary conduct in 2001, or maybe even the breakup of Standard Oil in 1911.

Judge Mehta ultimately decided that a breakup of Google would be overreach. But he did mandate that Google transfer data, syndicate results, and effectively assist competitors in building rival search products. Arguably, that remedy is a worse outcome—not just for Google, but for us all.

That ruling should alarm anyone who believes in market competition and even in private property. Google’s appeal of the district court’s ruling in the D.C. Circuit is a sharply written rebuttal of the monopoly charge; more importantly, it forces us to confront the twisting of American antitrust law into a means of giving government the ability to distribute intellectual property.

The foundational question is: Does antitrust law still protect competition on the merits, or has it become a tool for punishing commercial success and creating winners and losers in the marketplace?

Google’s brief is blunt in framing the issue in traditional terms. It argues that the company won because it built a superior product, anticipated the future better than rivals, and outcompeted them fair and square. The government, by contrast, increasingly treats success itself as suspect.

The distinction makes all the difference between a free-market system and businesses controlled (as progressive antitrust thinker Tim Wu famously said) by “the policeman at the elbow” of business.

For decades, American antitrust law has operated under the consumer welfare standard—the principle, championed most famously by my father Robert Bork, that antitrust exists to protect consumers rather than competitors. Under that framework, firms are not punished merely for becoming large or successful. The law condemns conduct that harms the competitive process itself: coercion, exclusion, collusion, predation, or restraints that reduce consumer welfare.

Google’s appeal is essentially a full-throated defense of that tradition.

The company argues that Apple and Mozilla chose Google because consumers overwhelmingly preferred Google Search. Apple executives testified that Google simply had the better product. Microsoft’s Bing, they said, was inferior and poor at monetizing advertising. In a similar vein, Mozilla’s experience switching Firefox’s default search engine from Google to Yahoo proved disastrous. Users disliked Yahoo and quickly migrated back to Google through other means. When was the last time you “binged” something? Well, perhaps there’s a reason for that.

That evidence matters because it cuts directly against the government’s central theory. If consumers actively prefer Google, and if Apple and Mozilla independently chose Google because it produced the best user experience and highest revenue, then what exactly was exclusionary about the conduct?

Google argues that nothing was.

The company insists the district court fundamentally confused competitive success with unlawful exclusion. Paying for default placement, Google says, is not inherently anticompetitive.

Companies compete for shelf space in grocery stores, preferred placement in retail chains, and advertising prominence all the time. Why should search engines be different?

Indeed, Google’s appeal repeatedly emphasizes that users remained free to switch search engines with a few clicks. Rivals were never barred from distribution. Apple and Mozilla could still promote competitors. Consumers could still download rival browsers or change defaults. Google merely won the competition to be the preset option because it offered the best combination of quality and revenue sharing.

Whether one ultimately agrees or not with that argument, it fits comfortably within traditional American antitrust doctrine. The government’s theory does not.

Increasingly, modern antitrust enforcement appears less concerned with consumer harm than with the structure of markets and the size of dominant firms. In this view, concentration itself becomes suspicious. Large companies are presumed dangerous not because they raise prices or reduce output, but because their scale allegedly limits future competitive possibilities.

That is a major departure from the consumer welfare framework that governed antitrust for nearly half a century.

More troubling still is the remedy imposed by the district court. Even if one accepts the liability ruling, the remedy goes dramatically beyond merely prohibiting certain contracts.

It confiscates and shares intellectual property, smacking of state-managed industrial policy. The distinctively American separation of government and commerce is one of the reasons our great nation has the world’s foremost economy. The absence of that separation is the story of why Europe lags behind, why China is faltering, and why the Soviet Union bankrupted itself.

Antitrust law historically sought to preserve competition, not redistribute the fruits of successful innovation. Yet the Google remedy increasingly resembles compulsory technology transfer. Google spent decades and billions of dollars developing search infrastructure, indexing systems, monetization tools, and user data feedback loops. The court now proposes forcing Google to share those assets with rivals who failed to build comparable systems themselves.

It begins to look less like antitrust enforcement and more like confiscation to advance a digital industrial policy, if not outright economic central planning.

The most remarkable aspect of the ruling may be its extension into artificial intelligence. The district court’s remedy reaches beyond traditional search into generative AI products such as ChatGPT and other emerging systems – technologies that barely existed during the period covered by the lawsuit. It is already a crowded landscape filled with competitors ranging from Big Tech hyperscalers to large and growing independent “frontier” companies. Not only was government assistance not needed to create this vibrant competition, aggressive and early intervention by government would probably have prevented it.

Lacking humility, regulators are now attempting to shape the future AI marketplace before it has even fully formed. This is where the broader philosophical stakes become impossible to ignore.

America became the world’s innovation leader not by guaranteeing equal outcomes among competitors, but by rewarding companies that innovated better, moved faster, and served consumers more effectively. Under the traditional model, firms that succeeded through superior products were celebrated, not dismantled.

If offering the best product, winning voluntary distribution agreements, and attracting overwhelming consumer preference can itself become evidence of illegality, then the center of gravity in American antitrust law has jerked violently leftward. Antitrust ceases to be a shield for consumers and becomes instead a mechanism for managing economic outcomes.

That is not merely a legal change. It is a philosophical one.

And it may determine whether the next generation of American innovators sees success as something to pursue—or something regulators will eventually punish.

Robert H. Bork Jr. is the president of the Antitrust Education Project.

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Perhaps the word “liberal” needs to be retired. Its worn plasticity is reason enough to render it shapeless and meaningless. Could the same also be said of the word “conservative”?

“Liberal” denoted classical free-market economics, ranging from Adam Smith’s invisible hand, only lightly restrained by regulation, to the hands-off approach of laissez-faire libertarianism. In the New Deal era, it came to mean government-directed capitalism and Keynesian stimulus. Now it is largely derived to describe people who are not liberal in any sense but veer toward Marxist-inflected statism in politics and economics.

But the “conservative” alternative is also increasingly indistinguishable from the “liberal” one.

This is the abiding concern of The New Paradox: Antitrust and Conservative Socialism, in which Robert H. Bork Jr. and Mark W. Davis attempt something as provocative as it is ambitious. They defend the classical liberal foundations of American antitrust law not just against the progressive Left, but also against an emergent strain on the Trumpian Right. Their central claim is as counterintuitive as their title suggests: that parts of the modern conservative movement are drifting toward what they call “conservative socialism,” using the tools of antitrust not to protect competition but to punish disfavored firms for political ends and bring business under the thumb of regulators, what Biden’s progressive enforcer Tim Wu calls “the policeman at the elbow.”

The book’s title is a play on The Antitrust Paradox, the foundational work by one of the author’s father—Robert Bork, jurist and legal scholar—who famously reoriented antitrust doctrine around the consumer welfare standard. Bork argued that the purpose of antitrust law is to promote efficiency, which protects the welfare of consumers, not lesser competitive firms seeking to shield themselves from competition.

Bork Jr. and Davis argue this consensus—adopted by the US Supreme Court in 1979, one year after the book’s publication—is now under threat from two political directions. The threat from the left is the firebrand progressive antitrust movement, championed by Biden’s Federal Trade Commission Chair Lina Khan. The other threat is a surprise, the often-overlooked radicalism of the “Khanservative” imitators of Khan within the new Right, self-described conservatives who have continued the statist, government-central merger guidelines of the Khan era without changing a dot or tittle. The authors warn that both antitrust movements are addicted to power, sharing a willingness to weaponize antitrust for political or cultural objectives rather than economic ones that would benefit consumers.

The authors contend that feigned outrage at “Big Tech” has led Khanservatives to embrace expansive antitrust enforcement out of pique against censorship of speech. Bork and Davis frankly admit that large social media platforms did censor, deplatform, and shadowban conservative speech during the Biden administration. But they argue that this censorship was largely driven by secret programs of the Biden White House, which dispatched 80 FBI agents to intimidate Meta and other highly regulated companies into censoring conservative speech.

While conservatives have every reason to be sore, Bork and Davis argue that Khanservatives overcorrect, continuing the antitrust suits and progressive legal theories of Lina Khan out of sheer pique and political animus. While Big Tech is the favored target of both Khan and the Ferguson-Meador team, the rules being cemented in place by regulators of both parties is turning antitrust into a form of industrial policy, precisely what earlier generations of conservatives rejected.

Worse, Ferguson and Federal Communications Commission Chairman Brendan Carr are taking government intervention to an extreme that even Lina Khan did not dare. They are weaponizing the government’s merger authority in an attempt to control speech and journalism. Example: Carr threatened to derail Paramount Global’s merger with Skydance Media if CBS News, owned by Paramount, did not settle President Trump’s lawsuit over how it edited an interview with then-Vice President Kamala Harris. This was a nuisance lawsuit, asserting an injury over the editorial judgment of a news organization. In the hands of Carr, however, it was a live threat to a major business deal. As soon as Carr’s tactic extracted $16 million from CBS, Carr suddenly dropped any objections to the merger.

For his part, Andrew Ferguson is pioneering the use of “terms and conditions” of news apps like Apple News to assert a right to enforce what he considers more balanced coverage. Carr recently followed up by threatening to pull the broadcast licenses of network affiliates if they don’t provide more balance in their coverage of the Iran War.

Bork and Davis write:

It is understandable why conservatives savor the schadenfreude of CBS’s discomfort, a network that frequently vilifies the right; or want to discomfort Apple News, which doesn’t include posts from Breitbart or National Review. But make no mistake—this is a base act of state censorship, an abandonment of principle and the Constitution. In this way, conservatives used government antitrust power to force a government-mandated “fact check” of a news organization and intimidate its corporate owner for speech. This is not only unprincipled. It is also supremely stupid. If Carr and Ferguson succeed in pioneering new ways to use regulatory power as a threat to punish speech, they will have created a regulatory power certain to be used against conservative media and organizations by the next progressive administration.

“What he [Carr] said there is dangerous as hell,” Sen. Ted Cruz said, comparing the attraction of the power to censor opponents to the evil temptation of the ring in Lord of the Rings. “Going down this road, there will come a time when a Democrat wins again, wins the White House . . . they will silence us.”

Bork and Davis follow up on this warning:

Imagine if Lina Khan returns to the FTC chairmanship under the next Democratic president. Could she similarly threaten the nonprofit Media Research Center—the conservative watchdog of mainstream media foibles that spotted Apple News’ biases—with being ‘deceptive’ because it has a given slant? Could she drag Fox News, Newsmax, Breitbart, and National Review through costly investigations for ‘violating reasonable consumer expectations’ for not reporting the approved line on climate change? Could the next progressive to chair the FCC use regulatory authority to extract payments for editorial decisions in how they cover Democrats?

Bork and Davis conclude that this unprecedented enablement of government power over speech and journalism is not just unprincipled but “ideological suicide.”

This willingness of Bork and Davis to critique the Right from within gives it intellectual bite. The authors consistently return to their core ideas—that consumer welfare should be the lodestar of antitrust and that true conservatives should return to the rule of law and institutional restraint.

The New Paradox is a sharp, necessary critique of a new Right that is ceasing to be on the Right. The real danger to antitrust, they argue, is not overenforcement or underenforcement but the loss of principle itself.

* * *

Rick Amato is a former financial adviser for Merrill Lynch and founded the Amato Wealth Management Group. He hosts Politics and Profits with Rick Amato.

This review was first published in American Greatness.

Enjoy!

Your father, Robert Bork, Sr, was such a significant figure in American legal history—looking back now, what do you think he understood about the direction of the country that feels especially relevant today?

My father understood something that I think we are only now fully rediscovering—that the greatest threat to a free society doesn’t usually come in the form of open confrontation with the Constitution, but in its gradual reinterpretation to serve political ends.

He saw very clearly that when judges, regulators, or political actors begin to substitute their own values for neutral principles, whether in constitutional law or in economic policy, you don’t just get bad decisions, you get a breakdown of the rule of law itself. The system stops being predictable, and it starts becoming discretionary. And discretionary power is where liberty goes to die.

What feels especially relevant today is his warning that this wouldn’t stay confined to the courts. Once the idea takes hold that outcomes matter more than principles, it spreads—to administrative agencies, to antitrust enforcement, to corporate governance. You begin to see law used as a tool to engineer social or political outcomes rather than to protect a neutral framework for competition and freedom.

In antitrust, for example, he was very clear: if you abandon the consumer welfare standard in favor of vague political goals, whether that’s fairness, industrial policy, or social objectives—you open the door to arbitrary enforcement. And once enforcement becomes arbitrary, it becomes political.

I think he would look at the current moment and say: this is exactly the trajectory I warned about—not because any one policy is catastrophic, but because the underlying discipline of neutral principles is eroding.

And once that discipline goes, it’s very hard to get it back.

Your new book, The New Paradox, addresses conservative socialism. What is conservative socialism?

Conservative socialism is the idea that you can use the tools of government—regulation, antitrust enforcement, industrial policy—not just to protect markets, but to direct them toward preferred social or political outcomes, while still calling that “pro-market” or “pro-American.”

It’s a paradox because it comes from the right. Traditionally, conservatives argued for neutral rules, limited government, and letting competition determine outcomes. But what we’re seeing now is a shift—some on the right are becoming comfortable using state power to shape markets: picking winners and losers, punishing disfavored companies, or steering capital in the name of national strength, cultural goals, or fairness.

At that point, you’re no longer defending capitalism, you’re managing it.

And the danger, which my father warned about in a different context, is that once you abandon neutral principles—like the consumer welfare standard in antitrust—you don’t get better outcomes, you get more discretion. And more discretion means more politics.

So “conservative socialism” isn’t just a label—it’s a warning. It’s what happens when the right adopts the means of the left, even if it believes it’s pursuing different ends.

Having had a front-row seat to your father’s life and career, is there anything about him that the public didn’t fully understand—but you think they should have?

I think what the public often missed was how deeply principled—and actually how restrained—he was.

He was portrayed as a kind of ideological figure, someone eager to impose his views. But the reality was almost the opposite. What drove him was a belief that judges and policymakers should not impose their personal preferences. He believed in discipline — in sticking to neutral principles even when they led to outcomes you might not personally like.

That’s a harder position than it sounds. It requires a kind of intellectual humility that’s rare in public life.

The other thing people didn’t fully appreciate was his sense of humor and his warmth. He could be very funny, very human, and very aware of the absurdities of the moment—even at the height of the confirmation battle. That part of him didn’t really come through in the public narrative.

And finally, I think people underestimated how forward-looking he was. Many of the debates we’re having today—about the role of courts, the politicization of law, the use of economic regulation to achieve social goals—he saw coming decades ago.

So, if there’s one thing I wish people understood better, it’s this: he wasn’t trying to shape the country in his image. He was trying to preserve a system where no one gets to do that.

You are the President of the Antitrust Education Project; can you tell us more about this?

The Antitrust Education Project is a nonprofit dedicated to promoting sound, economics-based antitrust policy—what I would call the consumer welfare approach.

Our core mission is educational. We work to explain why antitrust law should focus on protecting competition and consumers—not be repurposed as a tool for broader political or social objectives. That includes engaging with policymakers, supporting research, filing amicus briefs where appropriate, and helping elevate serious scholarships in this space.

Right now, there’s a real risk that antitrust is being pulled away from objective standards and toward more discretionary, politically driven enforcement. We think that’s a mistake—not just economically, but legally—because it undermines predictability and ultimately harms consumers.

So, what we’re trying to do is bring clarity and discipline back into the conversation. Not ideology—discipline. The idea that antitrust should be grounded in evidence, economics, and the rule of law.

Where do you see signs of conservative socialism within the Trump administration?

I think you see elements of what I call “conservative socialism” in the willingness to use state power to shape market outcomes—often in ways that depart from traditional, rules-based conservatism.

Take trade policy under Donald Trump. The use of tariffs wasn’t just about addressing discrete unfair practices; it became a broader tool to steer industrial outcomes—effectively deciding which sectors should be protected and which should bear the cost. That’s a form of government-directed market shaping.

You also see it in antitrust rhetoric. There were moments where enforcement—or at least the threat of it—appeared tied to concerns about the speech or political posture of large technology firms. Once antitrust becomes a lever to discipline companies for non-economic reasons, you’ve moved away from neutral principles and toward discretionary power.

Another area is industrial policy—efforts to favor domestic production or particular industries not just for national security, but as a general economic strategy. Again, the question isn’t whether any one policy is justified, but whether you’re normalizing the idea that government should be actively directing private economic outcomes.

And that’s really the thread: when you move from setting the rules of the game to influencing the results of the game, you’re no longer just defending markets—you’re managing them.

That’s what I mean by conservative socialism.

What is the job of antitrust regulators?

At its core, the job of antitrust regulators is to protect competition—not competitors, and not political outcomes, but the competitive process itself.

That means preventing conduct that harms consumers: things like price-fixing, collusion, exclusionary practices that block rivals unfairly, or mergers that would likely reduce competition and lead to higher prices, lower quality, or less innovation.

The key point—and this is where my father was very clear—is that antitrust is supposed to be grounded in objective, economically coherent standards. In the United States, which has traditionally meant the consumer welfare standard: are consumers better or worse off as a result of a given practice?

Agencies like the Federal Trade Commission and the Antitrust Division are not supposed to be referees of fairness in some broad social sense, and they’re certainly not supposed to be tools for advancing political agendas. Their role is narrower—but also more important: to enforce clear rules that keep markets competitive and predictable.

When they do that well, you get lower prices, better products, and more innovation. When they move beyond that—when they start trying to engineer outcomes—you risk turning antitrust into something arbitrary and political.

And once that happens, you don’t just lose economic efficiency, you lose the rule of law in this area.

What was the Biden administration’s approach to antitrust and is this approach different under President Trump?

The Biden administration took what I would describe as a structural and ideological shift in antitrust. Under leaders like Lina Khan at the Federal Trade Commission and Jonathan Kanter at the Antitrust Division, there was a move away from the traditional consumer welfare standard toward a broader set of goals about market structure, concentration, labor effects, and even political power.

That translated into more aggressive merger challenges, skepticism of large firms as such, and a willingness to bring cases that might not have succeeded under the prior, more economic-driven framework. You also saw a greater openness to using antitrust as part of a larger effort to reshape markets, not just police them.

Now, under Donald Trump—at least in his earlier term—you saw something different in tone but not always in direction. On paper, there was more rhetorical support for traditional antitrust principles. But in practice, there were moments when enforcement risked becoming politicized in a different way, particularly in how large technology firms were discussed.

So, the contrast isn’t as simple as “one was aggressive and the other was restrained.” The Biden approach was more openly transformative—explicitly rethinking the goals of antitrust. The Trump-era approach was less ideologically systematic, but at times showed a willingness to use antitrust or regulatory pressure in a more ad hoc, politically inflected way.

And that’s really the point I make in The New Paradox: both approaches, in different ways, risk moving away from neutral, rules-based enforcement. One does it in the name of restructuring markets; the other can do it in the name of reacting to perceived political or cultural concerns.

The common danger is the same—greater discretion, less predictability, and ultimately a more politicized antitrust regime.

Can you talk about President Trump’s antitrust regulators and the plight of CBS News and Skydance media, as chronicled in your book, The New Paradox?

What I argue in The New Paradox is that the Trump-era approach to antitrust, while not ideologically coherent in the way the Biden approach is, still revealed something important—and concerning—about the direction of policy.

If you look at leadership at the Antitrust Division under Makan Delrahim, there was, in many respects, a return to more traditional, economics-based analysis. Delrahim, for example, emphasized vertical merger guidelines and tried to ground enforcement in established doctrine.

But at the same time, there was a broader political environment under Donald Trump in which large media and technology companies—particularly those perceived as hostile—were openly criticized and, at times, implicitly threatened with regulatory scrutiny.

The CBS–Skydance situation, as I describe it in the book, becomes illustrative of that tension. When transactions involving major media entities like CBS News and Skydance Media are viewed through a political lens—whether fairly or not—you introduce uncertainty into what should be a legal and economic analysis.

And that’s the key point: antitrust enforcement depends on credibility. It has to be seen as neutral, predictable, and grounded in law and economics. Once market participants begin to believe that outcomes may turn on political considerations—who you are, what you say, or how you’re perceived, you’ve already weakened the system.

So, the lesson I draw isn’t that Trump’s regulators abandoned economics across the board—they didn’t. It’s that even a partially politicized environment can undermine confidence in the neutrality of enforcement.

And once that confidence erodes, you don’t just get different outcomes, you get a different kind of system.

We know that the IRS was weaponized in the past for its’ treatment of conservative groups as well as social media censorship. Is censorship a problem from the right side of the aisle also?

I think the honest answer is yes—censorship, or pressure on speech, is a risk from any direction once you accept the premise that power should be used to shape outcomes rather than protect neutral principles.

We’ve seen well-documented concerns on the left—whether involving government pressure on platforms, or the treatment of certain groups by agencies like the IRS. Those episodes raised serious rule-of-law issues.

But the right is not immune to the same temptation. You’re now seeing calls from some conservatives to use government power—whether through regulation, antitrust, or platform mandates—to discipline or control the behavior of large technology companies based on their perceived bias or speech policies.

At that point, the justification changes, but the mechanism is the same: government pressure influencing private speech.

And that’s really the line that matters. A free society depends on the idea that the government doesn’t get to decide which viewpoints are favored or disfavored—directly or indirectly. Once you open that door, it rarely stays confined to one side.

So, my view is consistent with the broader theme of The New Paradox: the danger isn’t just what one side is doing, it’s the erosion of neutral principles that restrain everyone.

Because once those restraints weaken, the tools of censorship become available to whoever holds power next.

Are you optimistic or pessimistic about America’s future?

I’m cautiously optimistic—but only if we’re honest about the risks.

The United States has an extraordinary capacity for self-correction. We’ve gone through periods before when institutions were strained, where legal principles were bent, and we’ve found our way back. That resilience is real.

But what gives me pause is that many of the pressures we’re seeing now—whether it’s the politicization of law, the erosion of neutral principles, or the growing comfort with using government power to shape outcomes—are coming from multiple directions at once. That’s new. And it makes course correction harder.

So, my optimism isn’t automatic. It depends on whether we’re willing to recommit to first principles: the rule of law, limits on government power, and the idea that the system should be neutral, not outcome driven.

If we do that, I think the country’s future is very strong.

If we don’t, then the risk isn’t some dramatic collapse, it’s a slow drift into a more discretionary, more politicized system.

And history suggests that once you drift far enough in that direction, it’s very difficult to turn back.

Europe is failing, perhaps dying. And it wants us to die with it.

Europe’s decline is partly based on demographics. Women in the European Union are having fewer children, well below the replacement rate, creating ghost towns in Tuscany and leaving factories idle in Germany. The most talented European youth and energetic entrepreneurs, from Budapest to Paris, are stymied by overregulation, crushed under strict hierarchies and credentialism that border on a caste system.

The results of Europe’s stultified society are evident in Mario Draghi’s report on European competitiveness. The former Italian Prime Minister found that 30 percent of European startup businesses that become “unicorns,” those growing to more than €1bn in valuation, move abroad. The vast majority of European unicorns emigrate to the United States.

This happens because a skein of regulations, restrictions, and high taxes imposed by Brussels and London is choking the innovation of European youth and the prospects for economic growth. Fifteen years ago, the European economy was 10 percent larger than that of the United States. By 2022, the U.S. economy had grown by 72 percent. China’s economy had grown by almost 300 percent. The European Union grew over this time by only 21 percent.

As result, the European economy is now 23 percent smaller than that of the United States. This is the result of a deliberate and vitiating embrace of progressive regulatory theories like those embraced by Khan and Khanservatives. Rep. Scott Fitzgerald, a Republican from Wisconsin, captured the essence of global economic trends: “America innovates, China replicates, and Europe regulates.”

As Europe fails, the Eurocrats in Brussels have chosen not to find ways to liberate the innovation of youth and the animal spirits of their entrepreneurs. They have, instead, chosen to dedicate their energies to the regulation of wealth instead of wealth creation. They have especially embraced antitrust policy as a way to degrade and perhaps destroy U.S. competitiveness. Europeans now have the mindset of the proverbial Russian peasant who would rather kill a neighbor’s cow than buy milk from that neighbor, or better yet, invest in a calf.

It is easy to see how Europeans, with progressive ideology, got themselves into this mental cul-de-sac. The mystery is why so many Americans on the left and increasing numbers on the right are supporting this economic warfare against American business, jobs, and consumers.

Criminalizing American Innovation

The main targets of Europe’s ire are America’s most innovative companies – Apple, Alphabet/Google, Amazon, Meta Platforms/Facebook, Nvidia and other technology leaders. Many European regulators, like much of the blogosphere, see these companies as if they were nothing but the playthings of a few billionaires. But America’s technology sector is the nation’s sharp edge in global leadership in business and a core driver of our national defense. Tech employs almost 10 million people in the United States. It generates hundreds of billions of dollars in returns annually to the portfolios of tens of millions of U.S. retirees.

These companies provide the bulk of our nation’s research and development. Alphabet (Google) invested more than $45 billion in R&D in 2023, Meta almost $40 billion, Apple $30 billion. Amazon invested a whopping $85 billion into research and development in that year. The pharmaceutical company Merck directed $30 billion into creating life-enhancing and life-saving compounds. These companies operate as venture capitalists, encouraging the larger ecosystem of small innovative startups whose founders hope to be acquired by a large company that can commercialize their discoveries and make them billionaires. It’s a powerful incentive program and it has maintained the status of the United States as the world’s technology leader since the 1990s.

Europe has a meager tech ecosystem. It has no equal to Apple, no “Pomme,” or any other European company with the stature of an American Big Tech companies. Rather than look within to understand Europe’s failure, as Draghi did, European regulators have convinced themselves that the success of these American companies can only be attributed to some form of competitive predation. If these American companies are so big and successful, it must be due to abusive monopolies. So slaughter their cow!

The European Union’s blade is the Digital Markets Act, that targets the major “gatekeepers” of the digital economy – the providers of online search engines, app stores, and messenger services. China’s ByteDance is the only one of the EU’s current targets to be defined as a gatekeeper that is not American. The others are the usual suspects – Alphabet, Amazon, Apple, Meta and Microsoft.

The European Parliament also passed the Digital Services Act, a rule to strengthen consumer privacy. The practical effect of these two laws together is to require gatekeepers, a.k.a. American tech companies, to allow third-parties, including competitors, to interoperate with their services. They forbid these American companies from preferencing their own services and products over those of competitors and other third parties.

The new laws have some neutral and arguably beneficial consumer aspects, such as allowing advertisers to verify the results of their ads, and expanding the privacy rights of consumers. But overall, the Digital Markets Act would evaporate the profit centers of U.S. tech. In essence, European law says to American technology companies – quit being businesses! European regulation threatens to transform major U.S. social media platforms into so many versions of low-profit Reddits at best, and into regulated public utilities at worst.

The draconian nature of the new regime can be seen in the EU’s treatment of Meta, the owner of Facebook and Instagram, which was hit with a €200 million fine in April 2025. Meta had responded in 2023 to the Digital Markets Act by creating a pay-or-consent model. This model offered European users of Facebook and Instagram the option of giving their explicit consent to be tracked in exchange for a free service funded by ad revenues, as is the case in the United States. Or European users could have chosen to step out of that model and pay a modest sum for an ad-free service.

The “pay or consent” option was a major restructuring of Facebook’s European business. It went into effect without official feedback. Then the EU ruled that giving such a choice to consumers to be a violation of the Digital Markets Act, and levied its massive fine on Facebook for its good faith attempt to comply with the law. Facebook was then told by Europe to offer a free service with no way for the company to support it.

Thus new EU law utterly disrupts how U.S. companies exchange free services (like Facebook) for being able to monetize the user’s data (employing anonymized IDs to match ads of interest in one’s feed). It is being forced to deny consumers the option of providing a paid alternative. The EU’s fines on Meta are now close to €1 billion.

This is just one of the ways the European Union is determined to enforce its Digital Markets Act to outlaw the basic business models that made Apple, Google, Meta, Microsoft, and Amazon America’s most innovative companies. They are now explicitly targeted by this law as digital “gatekeepers” in need of wholesale restructuring into social media utilities.

If this still strikes you as hyperbolic, consider what the EU is doing to Apple.

Apple has invested more than $100 billion in recent years to produce products that are seamlessly and safely linked, providing levels of security and privacy valued by consumers worldwide. Central to Apple’s success is the willingness of developers to create new apps with powerful capabilities for Apple customers. But Apple enforces conditions on developers. They are granted a degree of access to Apple systems, but not so much that they can steal Apple’s proprietary algorithms or – most importantly for antitrust – access and exploit user data.

For example, when developers create apps that rely on sound, Apple requires them to ask users for their permission before accessing their microphones. If developers want to record audio, they also must get explicit permission. Similar guardrails are in place for apps used for banking, gaming, and a variety of content and services. Developers can access Apple’s Touch ID, but they cannot access data in the Secure Enclave inside the iPhone. Not even Apple can access it. Apple could be likened to a bank that will allow access to a vault room, but won’t allow rifling through safety deposit boxes.

Taken literally, the law’s demand for “interoperability” with developers and competitors attempts to force Apple to throw open the safe deposit boxes and expose consumers’ most sensitive data. The EU mandate would allow access to consumers’ communications over iMessage – whether 6-digit codes texted by banks, Wi-Fi passwords, or personal communications. Also at risk is data on AirPlay, CarPlay, and Siri. Every message, email, phone call, image, and calendar will be potentially exposed to myriad developers, sure to be exploited and likely to be resold on the international market. Thus, Europe, in the name of protecting consumers, is forcing the exposure of users’ data, commoditizing it in the name of interoperability. It is a virtual certainty that some buyers will be cut-outs for China. As the FBI has warned, China “uses elaborate shell games” and overweight voting rights to control companies without tipping off its real ownership.

What is Apple’s crime? Apple was accused of not allowing app developers to steer customers to alternate platforms owned by competitors. In other words, Apple is being told to provide a platform for competitors – and pay for it. This is not unlike walking into a shop and telling the shop owner to allow his competitors to set up booths in his store. This intrusion threatens the carefully cultivated culture of Apple. That company’s appeal to consumers rests on its curation of a high-quality store for its apps. Steve Jobs, as Apple’s founder and creator, was especially adamant that Apple would keep pornography out of its shop. But European regulators, knowing better, forced Apple to admit a competitor, AltStore. Now, thanks to the EU, European customers of the iPhone or their children can access curated pornography from across the web thanks to AltStore’s HotTub app.

Apple, along with Meta, was an early target of Digital Markets Act fines. The European Commission slapped Apple with a €500 million Euro penalty, despite Apple’s strenuous efforts to comply with the law. European regulators said that Apple must remove technical and commercial restrictions that prevent app developers from steering users to cheaper deals outside the App Store. Apple complained: “We have spent hundreds of thousands of engineering hours and made dozens of changes to comply with this law, none of which our users have asked for. Despite countless meetings, the Commission continues to move the goal posts every step of the way.”

Microsoft came under investigation for its Teams collaboration video and chat software on its Microsoft 365 platform. What raised European suspicion? Microsoft was accused of being a moral monster for packaging a new product with other of its products and for trying to entice consumers to adopt them. Thus, practices that are perfectly normal for most European, “non-gatekeeper” companies are somehow considered malevolent tying when American tech “gatekeeper” companies employ them.

Not only is Europe challenging the business model of America’s leading companies, under Europe’s new Digital Markets Act, these companies can be hit with fines that threaten their very existence. This may not sound credible, given the size of U.S. Big Tech companies. But consider: Fines are not levied on an American company’s profits in Europe. The DMA’s penalty is a 10 percent fine imposed on an American company’s turnover or revenues – worldwide. A second infraction elicits a 20 percent fine of an American company’s worldwide revenues. Meta CEO Mark Zuckerberg told Joe Rogan that Europe has fined U.S. tech companies more than $30 billion.

Winding up for the monumental fines of the DMA, the Dutch Data Protection Authority, acting under the auspices of the DMA, last year fined Uber $324 million for transferring some customer data to servers in the United States during a time when the company’s obligations were unclear after the European Court of Justice had struck down the U.S.-EU Privacy Shield Agreement. Meta was fined $1.3 billion for a similar infraction. These massive fines were imposed despite no violation of the privacy of a single European. Fines of such magnitude bleed off money that could be better spent on innovation and more product choices for consumers.

You might think that regulation in the United Kingdom after its Brexit departure from the EU would sure be more rational. Oddly, the withdrawal from the EU did not stop Britain – for years under supposedly market-friendly Tory prime ministers – from internalizing the progressive ideology of the EU. Consider how the UK’s Competition and Markets Authority (CMA) stepped in to prevent Meta from acquiring a company called GIPHY, which provides the limited function of searching for short, GIF-like files with limited movement. Why did the British CMA intervene to block this merger? It claimed a loss of competition in the U.K. ad market. British regulators, however, suppressed facts, including the most telling one of all: GIPHY had failed to sell a single ad in the U.K. market.

Why is Europe out to wreck America’s leading companies? It seems to be out of a mixture of progressive thinking and anti-Americanism. Consider: In the first quarter of 2024, the largest seller of smartphones in Europe is Samsung, with 37 percent of the market. Add to that China’s Xiaomi market share, and the two Asian giants have a combined 53 percent share of the European smartphone market. And yet it is Apple’s 22 percent share in Europe that somehow defines it as a “gatekeeper” in need of radical restructuring. These latest fines for violating the DMA are eye-popping, but they continue an anti-American trend that has resulted in roughly $8.7 billion in fines imposed on another top American innovator, Google, over the past decade.

President Trump calls his stream-of-consciousness rhetorical style “the weave.” Conservatives should pay more attention to the president’s ideological style, a weave between conservative free-market and constitutional principles, and major steps into state-run capitalism, the crass use of regulatory authority to punish speech, and executive orders that bludgeon individuals and groups for their politics.

We acknowledge and celebrate the president’s big wins — closing the border, lowering taxes, stripping away deadweight regulation, and unleashing America’s energy might. These bright spots (and some are very bright) cannot distract us from the way in which Trump is erecting a guillotine for those who still value free speech and free enterprise, shielded from government control.

Charles Dickens called that execution machine introduced by the French Revolution “the National Razor which shaves close.” Conservatives especially should prepare themselves for a very close shave when the Democrats return to power. The Democrats are ever more dominated by far-left progressives, certain to use this weapon against conservatives and whatever remaining center-left Democrats when they are back in the White House. This is not a guess but a straight-line extrapolation of their behavior.

A few examples: During the Biden administration, social media platforms were pressured into censoring and shadow-banning conservative speech. Biden’s people funneled taxpayer money through a State Department “Global Engagement Center” to a London-based NGO that scared advertisers away from right-leaning American media, including such dangerous entities as Reason magazine.

The Biden administration encouraged corporate ESG, DEI, and the replacement of equality with “equity.” They appeared unconcerned (or worse) that academia — long a home for leftist and sometimes ultra-leftist orthodoxy — became arenas for struggle sessions among dissenters that had a way of ending unhappily. President Biden continued to forgive student-loan debt despite the U.S. Supreme Court’s ruling it unconstitutional, and coerced U.S. automakers into making electric vehicles that Americans didn’t want and couldn’t afford.

President Trump ran in 2024 promising to set a new course. Since he came into office, this has not always been so.

For example, Trump’s Federal Trade Commission chairman, Andrew Ferguson, sent a “warning letter” to Apple CEO Tim Cook, threatening him over Apple News’ curation of news sources. “The FTC is not the speech police,” Ferguson proclaimed, saying he acted only because Apple News’ choice of sources violated its terms and conditions. Yet a close reading of those terms explicitly disclaims responsibility for content accuracy.

That’s an argument not too far removed from one made by Tim Wu, a major critic of Big Tech in the Biden White House, who recently penned a piece in the New York Times arguing that social media isn’t just speech but is instead “a defective, hazardous product.” As the Trump administration evolves, the arguments of Carr and Ferguson in favor of enforcing consumer protection standards against First Amendment activities dovetail with those of Wu. The right and the left are beginning to agree that speech is a product that should be regulated, not a fundamental right that must be protected.

The president has also attacked the First Amendment directly by leveling executive orders against law firms with former partners or associates who had worked against him. By threatening to cut off their access to security clearances and federal buildings, including possibly courthouses, the president has extracted promises of nearly a billion dollars’ worth of pro bono legal work for his favored causes.

In business, the administration is mixing public monies with private investment. Among other examples, the government obtained a minority stake in Intel and a so-called “golden share” of U.S. Steel, extracted cuts of international sales by Nvidia and AMD in return for relieving export controls, and crafted bespoke policies to guide the business strategies of corporations. The president has personally demanded the removal of the Intel CEO and a Netflix board member. At times, he has seemed to act as a sort of corporate director, laying the foundations for state capitalism. As we have seen from earlier incarnations of industrial policy — from U.S. Steel to Solyndra, and in China today — the politicization of capital always distorts markets and ends in tears.

The administration’s antitrust policy also seems to be taking a statist turn. For almost half a century, antitrust policy has been guided by the “consumer welfare standard,” which takes the politics out of regulatory enforcement by evaluating mergers and acquisitions based on their impact on consumer prices, choice, and innovation. Inexplicably, President Trump’s antitrust regulators failed to restore this modest standard. Instead, they retained the merger guidelines of the progressive antitrust regime of Biden’s progressive FTC chair, Lina Khan. The result is a hybrid “America First” antitrust policy that sounds conservative but, like the approach adopted in the Biden-Khan era, embraces the use of antitrust to direct the economy from Washington.

Donald Trump could have been the restorer of free markets. Instead, his administration is institutionalizing mechanisms that Washington can use to meddle in the operations of private business.

The president’s defenders will respond that the left has proven ruthless and lawless in its quest to maintain and expand power — a case only strengthened by the recent menacing comments by Democratic strategist James Carville. They argue that a Republican president who truly would be “the restorer of free markets” might be committing unilateral disarmament, a defeatist and largely nonsensical argument that ignores the extent to which the protection of free markets can be reinforced both legally and institutionally. (To be fair, this effort would require a more active Congress than we have at the moment.)

True unilateral disarmament would be leaving tools on the table that the left would likely use in a far more hostile manner. For conservatives, from a practical point of view, smoothing the pathways of predatory power will only allow Democrats to complete the job in the future, while undercutting Republicans’ moral authority to fight back.

Although these dangers are real, such partisan considerations risk overlooking the greater peril: If both parties finally give up on free-market capitalism and limited government, then it really does not matter much which party is in power. The differences would no longer be quite so ideological, but cultural and tribal. A conflict between two parties unmoored from what we can consider constitutional Americanism would signal a break with the last 237 years of shared assumptions regarding the character and principles of this nation.

Regardless of whether the Republican Party retains its principles, Trump’s interventionism is a gift to the next progressive administration. Conservatives should be deeply worried about the guillotine that the president and his people are setting up in the plaza. As with the radical Jacobins, it is sure to be used against those who installed it.

A version of this article first appeared in National Review.

“This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created.”

If news reports are correct that the Trump administration plans to rescue Spirit Airlines in return for up to 90% equity in the company, passengers may soon be boarding a carrier that is basically government-owned. Will the renewed airline be decked out with a gold-leaf interior?

Call it a bailout if you like, or dress it up as a “temporary intervention.” A controlling federal stake in a private airline is something new in America. Yet it won’t be the first time political power has merged with private enterprise. If the Spirit Airlines takeover happens (as seems likely), it will only be this administration’s latest adventure in state capitalism.

Across multiple sectors, the Trump administration has mixed public money with private markets in ways that would have once been unthinkable in the U.S. The federal government has taken a minority stake in Intel. It has claimed a “golden share” in U.S. Steel. It has extracted revenue streams from Nvidia and AMD. It has shaped corporate strategy through tariffs, subsidies and regulatory favoritism—rewarding firms that align with political priorities or promise domestic investment.

At times, Washington has behaved less like a regulator and more like a corporate director. President Trump has demanded the removal of executives, including the CEO of Intel and even a Netflix board member. This isn’t neutral governance. It’s political direction of private enterprise.

We got a taste of this during the Obama administration’s ill-fated dalliance with the failed solar-energy company Solyndra. The history of that debacle offers a warning. Solyndra received more than $500 million in federal loans, only to go belly up. Like nations that have subsidized failing and inferior national airlines, the Trump administration will learn that politicized capital allocation distorts markets, misprices risk and often causes beneficiaries to fail. This happens because investment decisions become driven by political calculations rather than by efficiency or consumer demand.

Mr. Trump has moved Washington past setting the rules of the market to steering its outcomes. This is likely to backfire. The same federal government that may soon own Spirit played a decisive role in undermining its last viable path to independent survival.

Long before this year’s geopolitical shocks and fuel-price volatility, Spirit was already in decline. Revenue was down. Its stock price, once above $80 a share, collapsed to 47 cents by early 2025. The company filed for Chapter 11 bankruptcy in November 2024.

This downward spiral wasn’t inevitable. Spirit’s decline was accelerated, if not sealed, by the Biden Justice Department’s aggressive antitrust campaign against a proposed $3.8 billion acquisition by JetBlue. That deal would have allowed Spirit to scale, improve service and compete more effectively against the dominant legacy carriers.

Even the presiding judge, William Young, acknowledged the merger’s potential benefits. It would, he noted, bring needed competition to American, Delta, Southwest and United. But he ultimately blocked the deal on the theory that Spirit’s ultralow-cost model exerted downward pressure on fares. “Spirit is a small airline,” Judge Young wrote. “But there are those who love it. To those dedicated customers of Spirit, this one’s for you.”

The airline was denied the opportunity to evolve through a private-sector solution. Denied access to JetBlue’s advantages, Spirit collapsed. Now, the proposed solution is a government takeover.

This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created. The result is a system in which government both creates market failures and claims the authority and ability to resolve them.

If the Spirit deal proceeds, the federal government will be validating a new model of political control over private enterprise—one in which Washington decides which companies survive, how they operate, and who pays the price. (Spoiler alert: If you’re a taxpayer, you do.) So buckle up. It’s going to be a bumpy ride.

A version of this article also appeared in The Wall Street Journal.

Before Loper Bright, federal regulatory agencies exercised growing discretion in how they interpreted – and inevitably expanded – statutory powers. This came to be known as Chevron deference, meaning deference to agencies’ interpretation of how to administer the law.

Loper Bright brought that freewheeling era to an end by restricting agency actions to the letter of the law. Now, in what will one day be seen as a conservative own goal, Chairman Carr is quietly restoring the power of the administrative state to boss business around.

This is happening through the FCC’s handling of Nexstar’s acquisition of TEGNA’s network of television stations. By law, no owner can control stations that reach more than 39 percent of American households. The Nexstar-TEGNA deal would create ownership of 265 stations serving about 80 percent of American households.

One can argue that this law is antiquated, given the importance of streaming and other internet-based sources for entertainment and news. But it is still the law. Does that mean anything anymore?

Peter Roff, writing in a syndicated piece:

Instead of enforcing the law, the FCC’s Media Bureau – filled with unelected staffers and with no vote of the full Commission – simply waved it.

That move was unlawful and strategic. Bureau actions are not final Commission decisions, meaning the FCC and Nexstar are trying to dodge meaningful judicial review. If they succeed, Loper Bright will stand for very little. Regulatory agencies won’t have to reinterpret statutes because they’ll be free to ignore them.

One unintended consequence is that the FCC’s move has ensnared Nexstar in a morass of litigation. Roff describes what will be the lasting unintended consequence of the Trump Administration’s regulatory overreach:

Conservatives once warned relentlessly about unelected bureaucrats accumulating unchecked power, regardless of whether or not they were on your side. Loper Bright was supposed to bring an end to that. Instead, the FCC is testing a dangerous new theory: that agencies can sidestep Congress and the courts as long as they move fast enough.

Add to this the willingness of Chairman Carr and Federal Trade Commission Chairman Andrew Ferguson to use their regulatory heft to try to police journalism. Carr held up Paramount’s merger with Skydance Media until the latter paid $16 million to the Trump presidential library project over President Trump’s specious, nuisance lawsuit over how Paramount-owned CBS News edited an interview with Kamala Harris during the campaign. Ferguson is threatening Apple News with regulatory action based on the risible claim that its curation of liberal-leaning news sources is actionable as a consumer violation under that outlet’s terms and conditions.

Not even the Biden Administration, which secretly censored conservative content on social media, dared to claim the authority to publicly regulate journalism and First Amendment activity.

On the economic side, the Trump Administration is busy importing China’s approach to state capitalism, with the government taking large stakes in a number of companies and business deals, from Nvidia’s sale of advanced chips to a “golden share” of U.S. Steel.

And now Carr is renewing agencies’ administrative power – in this case, an outright defiance of the law – undermining the Supreme Court’s rollback of Chevron deference.

When progressives one day return to power, they should be pleased at all the new levers of power that the Trump Administration has installed for them. But for conservatives, it won’t be pretty.

For the remaining tribe of free-market, smaller-government conservatives, the legacy of Teddy Roosevelt elicits conflicting impulses.

As the first progressive president, TR inaugurated the era of the nation’s chief executive as an outsized celebrity. Many of TR’s great achievements—in trust-busting, food inspection, and environmental protection—were necessary, but they opened the way for the growth of the regulatory state. In his last campaign for the presidency, the Bull Moose edition of TR ran more or less as an out-and-out socialist, proposing an early version of a comprehensive industrial policy, with government in charge of prices and most business decisions.

In this, TR was prescient. That version of TR would have fit right in with the Biden era of Tim Wu and Lina Khan.

And yet… TR remains one of the most iconic of Republican presidents. And there was that famous grin… and the cowboy duds… and the charge up San Juan Hill. It’s easy to imagine TR in heaven riding happily on a horse alongside Ronald Reagan. On the other hand, Calvin Coolidge, the most reticent of all presidents, may be a small-government conservative’s idea of virtuous modesty, but no child clings to a doll called a Calvin-bear.

So TR nostalgia will always remain seductive. But when some of the new right use TR as branding for today’s most progressive policies in economics and antitrust, alarm bells should go off for true conservatives.

Case in point is the speech that Federal Trade Commissioner Mark Meador gave last week to the Bull Moose Institute. It was a well-crafted speech, rooted in a strong sense of history. Recounting Roosevelt’s “New Nationalism” speech, Meador harks back to what seems to him to be the timeless principles of antitrust enforcement – a very American sense of wanting to cut large, unaccountable organizations down to size.

What often gets lost in the nostalgia is that the trusts of TR’s day were nothing like any large business today. When historians write of the trusts’ “ruthless” tactics, they often involved criminal and thuggish acts—from bribery to threats to slaughtering men, women, and children in suppressing strikes. Even the business strategies of trusts in those days, from price-fixing to horizontal conspiracies, are acts that would be plainly illegal today.

Still, Meador sees TR as relevant to antitrust today. He said of the 26th president:

He did not oppose the great trusts of his era merely because paid consultants told him that consumer prices would fall if he did so. He opposed them because they acted in ways that corrupted free markets: by replacing competition with coercion, earned success with entrenched privilege, and open markets with corporatism. He drew a line, and the line was legal and moral before it was economic. As he stated, with characteristic directness: ‘[w]e draw the line against misconduct, not against wealth.’

And with these words, Meador takes TR’s sheriff’s badge and pins it on his own chest. But does this approach make sense today? Let me enumerate the flaws of TR antitrust revivalism.

Replacing the Consumer Welfare Standard

Meador implies that big corporations today skate by obvious antitrust violations because “paid consultants” are telling policymakers that the efficient production of large enterprises often means cheaper goods. But it isn’t consultants who are instilling this message. It is federal judges and their Consumer Welfare Standard doctrine, which has been in place for almost half a century, since it was adopted by liberals and conservatives on the U.S. Supreme Court in 1979. And the goal of that standard is not just cheaper goods, but more choices and innovation to the benefit of consumers.

While the Biden regulators jettisoned the Consumer Welfare Standard in their merger guidelines—and the Trump antitrust regulators at the Department of Justice and Federal Trade Commission did nothing to restore it—that standard remains the governing principle of the federal judiciary today.

Without that standard, firmly anchored to the consumer, we would return to arbitrary antitrust in which the whims, biases, and ideology of the regulator and the judge would determine outcomes. This is a recipe for politicized antitrust enforcement and actual censorship, whether it’s Lina Khan going after Twitter, or Trump regulators going after liberal news organizations that offend them.

In harking back to progressive-era antitrust, Mark Meador would abandon antitrust’s only coherent limiting principle.

A Return to “Big Is Bad”

Mark Meador argues that conservatives should embrace aggressive enforcement, with underenforcement as the greater risk. He emphasizes decentralization and automatic suspicion of large firms.

This was the thinking several decades ago that put Walmart in the crosshairs of progressive criticism. But economists countered that they could track a clear “Walmart effect” in declining prices and rising choices for consumers. Today, it is the FTC that is trying to break up Amazon, another action consumers absolutely do not want.

The reason is that large firms often reflect efficiency and economies of scale to the benefit of consumers. Meador’s framework would regress to this “big is bad” doctrine in antitrust, making efficiency potential evidence of a crime.

Undermining the Rule of Reason

The “rule of reason,” popularized in the late 19th century by a federal judge named William Howard Taft, evaluates conduct based on the economic effects of a business practice on competition – and by implication, on consumers. Meador kicked off his tenure with an attack on “fetishized economic analysis” in his essay on “Antitrust Policy for the Conservative.”

It is easy to dismiss “efficiency” as a heartless irrelevancy. But a regulator who governs by what his heart tells him rather than by what the market reveals is like a surgeon who has a great bedside manner, but is incompetent with a scalpel in his hand. A good surgeon may have a poor bedside manner, but he shows fidelity to the patient by being good at his job.

Without the rule of reason, courts lose any way to distinguish procompetitive from anticompetitive conduct. When the sheriff of antitrust acts from intuition and ideology over economics, enforcement becomes political and error-prone.

A Bias Toward More False Positives

In antitrust, a false positive is an act that blocks conduct that would have been beneficial to the economy and the consumer, while a false negative would be a missed antitrust violation.

My father, Robert Bork, famously argued that the errors of overenforcement are far worse because they establish binding legal precedents that stymie innovation across markets. False negatives, on the other hand, may miss a temporary, unfair advantage. But the market has a way of demolishing such advantages much more effectively—and often faster—than the law can.

Remember when Blackberry, Toys “R” Us, and AOL seemed unstoppable?

“Competition is an evolutionary process,” Robert Bork and Ward Bowman wrote in 1965. “Evolution requires the extinction of some species as well as the survival of others. The business equivalent of the dodoes, the dinosaurs, and the great ground sloths are in for a bad time—and they should be. It is fortunate for us all that there was no Federal Biological Commission around when the first small furry mammals appeared and began eating dinosaur eggs. The commission would undoubtedly have perceived a ‘competitive advantage,’ labeled it an ‘unfair method of evolution,’ and stopped the whole process right there.”

The Fatal Vagueness of Moral Framing

America First Antitrust rhetoric is resplendent with rousing phrases like “human flourishing” and the “common good.” To read a speech from Meador or from his former colleague, Justice Department antitrust chief Gail Slater, is to be flooded with the imagery of real Americans buttering their corn and digging into steaks cooked on the backyard grill under an American flag.

The reality of the new right’s TR-inspired adoption is a move away from a very American approach to antitrust and closer to the hyperactive statism of the European Union. America First Antitrust jettisons the anchor of economics and consumer welfare in favor of the progressive ideas of Lina Khan, allowing big government to wield antitrust enforcement as a weapon, rather than as a tool for economic (and thus, social) advancement.

The new right may think it is reviving Roosevelt. In reality, it is reviving the very progressive project conservatives once opposed—replacing markets with mandates, and economics with politics.

A revived TR antitrust policy for the 21st century would mean the replacement of economics with politics, which can only end in tears for conservatives.

TR is a good role model for human achievement. There are better models for policy.

“Don’t expect to build up the weak by tearing down the strong,” said the 30th president of the United States, Calvin Coolidge. “It is more important to kill bad bills than to pass good ones.”

A version of this article also appeared in RealClearMarkets

The news that Columbia University Law School is establishing a new Center for Law and the Economy – to be directed by Biden’s former FTC Chair Lina Khan and includes former Biden economic and legal advisor, Tim Wu – is a new and exciting development in the future of American antitrust enforcement.

The creation of the center, Khan says, responds to “tremendous interest from law students, and the center will help harness that interest and develop the scholarship and expertise needed to advance this work across key areas of economic law and policy.”

To help guide this new center, below is a suggested curriculum to shape the legal philosophy of Columbia Law students – the Lina Khans and Tim Wus of our future.

Structural Inequality Studies: Econ 501 – Why Markets Fail (Especially When They Work)

Many law students arrive clinging to naïve and outdated concepts of the market as “free” – believing that market dominance is usually challenged and corrected by a mythical deity called the Invisible Hand. This course demonstrates how innovation and consumer surplus mask deeper harms such as scale and excessive efficiency, while exploring the corrosive effect of discounting and low prices in promoting inflation.

Econ. 502 – “Small Dealers and Worthy Men”

First, an apology for the title, which harks back to the archaic (and frankly nebulous) word “men.” Yet it derives from a foundational Supreme Court opinion from the late 19^th century that presaged the Center’s Brandeisian ethos. This course will explore why a big company’s size is a marker of late-stage capitalism practically begging for the regulator’s wrecking ball.

Econ. 503 – Taking a Razor to the Rule of Reason

This course explodes the myth of neutral principle in regulatory enforcement. As progressive expert Matthew Stoller put it, “the point of economics as a discipline is to create a language and a methodology for governing that hides political assumptions from the public.” The rest is just math.

Antitrust Redistribution: Law 510 – The Fascistic Roots of the Consumer Welfare Standard

Students learn to move beyond price effects toward a holistic and critical evaluation of how the current antitrust dogma upheld by federal judges of both the left and the right serves unequal power arrangements under the guise of “consumer welfare.” We will explore how antitrust enforcement can look beyond price, innovation, and choice for consumers to become a strategy to promote unions, inefficient competitors, and – in the words of Rebecca Kelly Slaughter – confront “structural and systemic racism that underlies and facilitates acts of violence.”

Law 511 – Antitrust Without Apologies

How to bring cases first and define the theory later – such as the failed FTC case against the Meta monopoly, while ignoring the fierce competition Meta faces from YouTube, TikTok, iMessage, Mastodon, LinkedIn, as well as growing personal networks such as WeChat, Telegram, Snapchat, Reddit, Pinterest, Discord, and Tumblr.

Law 512 – Gerrymandering Antitrust Cases

We learn how to sue anyone as a monopolist by defining markets as narrowly as possible. A case study: How the FTC under our Director Khan investigated Subway as a “Big Sandwich” monopolist by excluding markets for warm beef and chicken sandwiches, while otherwise including anyone who could slap something between two pieces of bread. Students will develop mock cases of their own, such as suing Chick-fil-A for monopolizing the market for chicken sandwiches not sold on Sundays.

Law 513 – Vertical Integration as Original Sin

We learn why owning multiple stages of production is presumptively suspect, especially when heartless efficiency is maximized.

Law 514 – The Heroic Return of the Robinson-Patman Act

How the future regulator can ensure that no firm ever gets too good at winning market share by economies of scale and discounting for consumers. Case study: How the “Walmart Effect” ruined the American economy by delivering “Everyday Low Prices.”

Administrative Omniscience: Law 515 – Monopsony Everywhere

How to develop the techniques for finding the victimization of labor markets in any dataset and convert competition law into a parallel labor code.

Law 516 – The Policemen at the Elbows

Explore the social value created by unrelenting oversight and static rules on dynamic markets. We will develop advanced mental techniques by which antitrust experts can foresee future market developments that elude the brightest people in investment capital.

Econ Colloquium: Industrial Policy for Beginners

How to use political favoritism and heavy-handed capital allocation under the rubric of “planning.” We will also study how subjecting capital and business to the whim of politically controlled regulators will one day lead to the “withering away” of the state.

Capstone Project – Designing Markets that Behave

Students re-engineer industries so outcomes align with preferred social distributions – avoiding demerits for any policies that promote efficiency. Students must always keep faith with the Center’s motto: Vigil ad cubitum (“The policeman at the elbows”).

Robert H. Bork Jr. is president of the Antitrust Education Project.

What is left is right, and what is right is left – and both are getting it all wrong.

A convergence is taking place between the philosophies of some on the new right and the progressive left that treats social media as a “product” that must be regulated in the best interests of the American people, sweeping aside quaint concerns about the First Amendment guarantee of free speech.

We recently covered attempts by the Trump chairmen of the Federal Trade Commission and Federal Communications Commission to regulate journalism by overriding the First Amendment with appeals to consumer protection and airwave regulation.

This dovetails nicely with a recent New York Times op-ed by Tim Wu – who led the implementation of progressive policies from inside the Biden White House – arguing that social media is “a defective, hazardous product” that must be regulated “as a matter of public health.”

He echoes the reasoning of trial lawyers seeking to hold Meta, Google, Snap, and TikTok liable for harming youth. Wu lists a parade of horribles – “algorithmic recommendations, infinite scroll, auto video play and intermittent reinforcement (in which likes, comments, and refreshed content are rewarded unpredictably rather than consistently).”

Put aside, for a moment, the obvious lack of utility of a social media platform that doesn’t guide users to what they want to see, or that requires manual intervention to get something to play. Wu’s point here is that “the very design of social media is intentionally engineered to create compulsions and habits of overuse, regardless of the content provided.”

He adds: “Lofty platitudes about free speech ring hollow in the face of teenage depression, self-harm and suicide.”

Thus the circle squares, from Trump FTC Chairman Andrew Ferguson, who wants to apply consumer product regulation to Apple News, to Wu, who wants public regulation of social media to make it less harmful.

Wu is, to say the least, less than an ardent defender of free speech. He achieved notoriety with an essay that asked, “Is the First Amendment Obsolete?” (Short answer from Wu: yes.) There is also a more thoughtful side to Wu. He is right that American teens are too absorbed by social media, many dangerously so. But the solution, if there is one, could never come from government control of speech.

Several years ago, Elizabeth Nolan Brown in Reason magazine summed up the problem with blaming all the ills of the world on algorithms – which are, after all, a way to give users control of the content they see. Brown wrote:

It’s no secret that tech companies engineer their platforms to keep people coming back. But this isn’t some uniquely nefarious feature of social media businesses. Keeping people engaged and coming back is the crux of entertainment entities from TV networks to amusement parks…

Moreover, critics have the effect of algorithms precisely backward. A world without algorithms would mean kids (and everyone else) encountering more offensive or questionable content.

Brown quoted Meta’s former vice president of Global Affairs, Nick Clegg, who said that without the news feed algorithm, “the first thing that would happen is that people would see more, not less, hate speech; more, not less, misinformation; more, not less, harmful content.”

Algorithms pluck what users follow out of a torrent of billions of global messages. Without them, that torrent would hit us all in the face.

For reasons spelled out by Brown, Wu’s idea of turning over algorithmic control – and thus speech control – to law enforcement and trial lawyers has no hope of working. The same is true of the efforts of FCC Chairman Brendan Carr and FTC Chairman Andrew Ferguson to force journalists to adhere to their idea of greater ideological balance.

If either side ever succeeds in putting their schemes into action, they are sure to be disappointed when their controls fail to deliver the intended results. The obvious answer, to them at least, will be that even more control is needed. Then more.

Both ideological extremes are in a race to the bottom. Defenders of the First Amendment must be bolder than ever in declaring that speech is not a product – it is a human right.