For the last few months it has felt like the circus was in town, with carnival barkers hyping one attraction after another, each more bizarre and sensational than the last. Not exactly how one would expect to describe a federal district court.
Most of these acts you have probably heard about. There are the lion tamers and the elephant riders. Those acts sell themselves. I’m more interested in the small time acts, the clowns. Here’s the setup for the joke: Is it an anti-trust violation to fact-check anti-vaccine activists?
A Step Back
Let’s take a step back. When I started my legal career in 2012, Amarillo was not an exciting place to practice law. The last bit of excitement anyone could really think of was Oprah Winfrey’s trial, an event large enough to rope in most of the significant firms in town – anyone over a certain age seemed to have some war story about their relation to the case. Back then the venerable Judge Mary Lou Robinson presided over Amarillo’s federal district court. Judge Robinson was made of sterner stuff than most; she was smart, decisive, a velvet glove on an iron fist.
By all indications Judge Robinson did not relish the attention that Oprah brought to her courtroom. As Chip Chandler (then of the Amarillo Globe News, now a colleague here at WTAMU) wrote, “As the case drew near, Robinson slapped everyone involved with a broad gag order and, for the most part, it went unbroken. After watching the judge in court for six weeks, I wouldn’t have messed with her either.” Judge Robinson had that effect on people – she did not invite excitement into her courtroom, and she would not tolerate it in her courtroom if some excitement should, by some terrible mistake, find itself there.
Changing Of The Guard
The Panhandle has had something of a rude awakening, of late, from its soporific state. Two events have coincided to make the Amarillo division one of the hottest courts in the entire country. The first, unfortunately, was that Judge Robinson passed away in 2019, after almost forty years on the federal bench. Her successor, Judge Kacsmaryk, does not share her restrained and decorous approach to his role in the judiciary.
But this was compounded by the fact that he happened to rise to the bench at a moment when a major sea change was happening in the federal judiciary, a dramatic rise in forum shopping by politically motivated plaintiffs using single-judge federal divisions to find judges more favorable to their political causes.
One-Horse Town
Amarillo is just such a one-horse town, judicially speaking. There is only one judge in the Amarillo Division of the Northern District of Texas, and it is Judge Kacsmaryk. This isn’t uncommon – there are several such single-judge divisions in the Northern District of Texas alone. However, as Professor Vladeck wrote last year in his amicus brief in United States v. Texas, these single-judge divisions are now the preferred venue for activist litigation by state attorneys general and others with political axes to grind, ensuring that their cases will be heard by a particular judge that shares their political bent.
Unlike Judge Robinson, who openly disdained national attention, Judge Kacsmaryk appears to relish it. In one recent order he refused to transfer venue away from his court to one with a more reasonable connection to the case at issue. Judge Kacsmaryk openly mocked his critics, referring to Professor Vladeck as just “a professor with a Twitter account” and remarking on how it was merciful that Professor Vladeck’s predecessor at the University of Texas, legal legend Charles Alan Wright, “did not live long enough to endure the ‘tweet and repeat’ indignity of the Twittersphere.”
Bring In The Clowns
As I said, though, most of the cases now before Judge Kacsmaryk are well publicized and require no further comment by me – they are weighty and important and enough has been said about them already. I’m at this circus to see the clowns, and no case in this division is more worthy of that title than Children’s Health Defense et al. v. The Washington Post Co. et al.
Children’s Health Defense is a remarkable case for many reasons. At its core it is an ant-vaccine case, an area that has seen an explosion of activity in the last three years due to vaccine reluctance following COVID. What sets it apart, though, is that it does seek to block vaccines or roll back public safety orders the way most such cases have. Instead, it uses the almost entirely unique tactic of employing anti-trust claims as a cudgel against the anti-vaccine movement’s opponents in the media.
The plaintiffs are a group of vaccine denialists and pseudomedical crackpots led by now-presidential candidate Robert F. Kennedy, Jr. For any not familiar, Kennedy is a well-known environmental activist and attorney who has spent much of his career advocating for causes he sees as related to the environment and public health.
Kennedy styles himself a consumer advocate and he has had some credible hits in the past. He has been a vocal opponent of the use of pesticides and other harmful chemicals in agriculture and has pushed for stronger regulations to protect public health. Just a few years ago his group won a multi-million dollar settlement against agrochemcial giant Monsanto. Alongside these credible suits, though, Kennedy has been been a vocal opponent of mandatory vaccination and has promoted conspiracy theories about the safety of vaccines, despite overwhelming scientific evidence to the contrary.
And In This Corner, The Defendants
The defendants are some of the largest news media groups in existence – the Washington Post, the BBC, the Associated Press, and Reuters. These groups were part of a coalition known as the Trusted News Initiative that partnered with major tech firms Google and Facebook to combat misinformation about COVID and vaccines.
The allegation is essentially this: by fact-checking claims made by anti-vaccine activists in a way that “de-platformed” or “de-monetized” those activists, the Trusted News Initiative constituted “a paradigmatic antitrust violation: a horizontal agreement among competitor firms to cut off from the market upstart rivals threatening their business model.” The term used in antitrust for this type of allegation is that it is a “group boycott.”
As it happens, I do teach about antitrust in my health law courses, so I admit I am fascinated to see it employed in this way. Fascinated and appalled. The issues with the claim are almost too numerous to name, but just to run down my top three:
Three Issues
First, a group boycott is only an antitrust violation if it is for economic reasons, not because the members of the group share a social or political belief – and it is obvious that the latter is the case here. In this case the shared interest was in true information, not in the economic success of their individual firms. I would be surprised if any of them say any economic benefit from the arrangement whatsoever. Correcting vaccine misinformation has not historically been a profitable enterprise.
Second, the case fails to properly identify the shared “market” from which the plaintiffs were excluded – indeed, if anything, the plaintiffs are still quite active market participants. Past suits against individual platforms have been almost uniformly unsuccessful – no single corporation owes anyone access to their platform. Being kicked off Facebook might harm your corporation, but Facebook has the right to do that. So, the allegation needs to amount to more than just one or a few platforms, but effectively to exclusion from the marketplace entirely, and I see no such plausible allegation here.
Finally, I think the suit must fail because antitrust is primarily a pro-consumer law, and so courts are expected to apply the Rule of Reason, a complex analysis primarily aimed at demonstrating whether a group’s acts have an anticompetitive affect that harms consumers and that outweighs any procompetitive effects that may be in play. Here, there is a clear market efficiency to sharing the burden of identifying misinformation. That’s a strong procompetitive effect, and not one that I think the plaintiff group can rebut.
This case is a relatively new one, and just now moving into the Motion to Dismiss stage. The defendants filed their respective Motions to Dismiss on April 20, 2023. I think they make very strong arguments why this case should not proceed, although we must now wait to see responses from the plaintiffs. It will soon be in is in Judge Kacsmaryk’s hands to decide what type of circus he wants to run.
