FTC vs. Facebook Dismissal Does Not Justify Weaponizing Antitrust Law
By: Tom Hebert
On Monday, U.S. District Judge James Boasberg in Washington dismissed the Federal Trade Commission’s complaint against Facebook, alleging that the technology company abuses its monopoly power to squash its competitors. The FTC has until July 29 to file an amended complaint.
Boasberg, appointed by former President Obama, dismissed the complaint because the FTC had no evidence to prove its assertion that Facebook had in excess of 60 percent of the market the FTC calls “personal social networking services.”
In his dismissal, Boasberg says: “The FTC’s complaint says almost nothing concrete on the key question of how much power Facebook actually had, and still has, in a properly defined antitrust product market. It is almost as if the agency expects the court to simply nod to the conventional wisdom that Facebook is a monopolist.”
In response, some lawmakers seized on the dismissal as justification for a drastic rewrite of antitrust law. Senator Amy Klobuchar (D-Minn.) tweeted that the dismissal is proof that “our antitrust laws need to be updated after years of bad precedent.” Several other lawmakers renewed the call for weaponizing antitrust law in the face of the dismissal.
Translation: “the government lost an antitrust case, so we need to rewrite antitrust law to make the government win every time.”
Klobuchar’s “Competition and Antitrust Law Enforcement Act” would flip the burden of proof in certain monopolization cases from the plaintiff to the defendant, meaning that courts would presume companies guilty of alleged anticompetitive conduct until proven innocent.
The bill also relieves antitrust enforcers from defining the relevant market a company is ostensibly monopolizing. The FTC’s paper-thin case couldn’t properly define the social media market that Facebook supposedly dominates, which is probably why Klobuchar wants to release antitrust enforcers from having to do so.
Worst of all, none of the left’s antitrust plans address real and legitimate conservative anger over Big Tech censorship. They would simply give Biden bureaucrats sweeping new power to pick economic winners and losers to the detriment of American shoppers.
The dismissal of the FTC’s complaint against Facebook gives us a few takeaways.
First, the FTC’s complaint was dismissed because enforcers could not provide evidence for its claim that Facebook dominates 60 percent of the social media market. This is not evidence that antitrust law needs to be rewritten, it is evidence that the FTC was unprepared for court.
Second, Article III judges are a huge obstacle to the left’s plot to rewrite antitrust law, even judges appointed by liberal presidents. This is a big reason why the left wants to shift crucial antitrust enforcement decisions from neutral judges to partisan bureaucrats.
Third, the dismissal proves that antitrust law is working as intended, not broken. Consumer welfare remains the priority when assessing alleged anticompetitive conduct. Breakups are a tool of antitrust enforcement, not a goal. It should be difficult for the government to break up companies, especially considering the acquisitions the FTC seeks to undo happened with FTC approval almost a decade ago.
Ultimately, the FTC’s complaint against Facebook fell apart because enforcers could not get their facts straight, not because antitrust law is broken. Conservatives should continue to reject efforts to weaponize antitrust law for Democrat political gain.