Global Courant
Major news outlets being sued by a group led by Democratic presidential nominee Robert F. Kennedy, Jr. would not be protected against the alleged violation of federal antitrust laws, says a media law expert.
“Media outlets will not get First Amendment exemption from antitrust laws,” Lyrissa Lidsky, chair of U.S. Constitutional Law at the University of Florida Levin College of Law, told Fox News Digital.
Kennedy’s organization, Children’s Health Defense, filed its second lawsuit this year against news outlets that are members of the Trusted News Initiative, a global coalition of news organizations and technology companies, alleging some of its member organizations violated the Sherman Antitrust Act by censoring information .
“One problem is that we depend on the media as government watchdogs,” added Lidsky, a media law expert and former dean from the University of Missouri Law School. “The allegation here appears to be that powerful actors in the media and government have conspired to suppress information.”
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Robert F Kennedy Jr. announced his candidacy for president in April. (David L. Ryan)
Children’s Health Defense, Kennedy’s anti-vaccination group, announced this week that it was closing the antitrust lawsuit May 31 against the BBC, The Washington Post, Reuters and The Associated Press in U.S. District Court for the Western District of Louisiana before U.S. District Judge Terry A. Doughty, a Trump appointee. The news outlets are all members of the Trusted News Initiative, set up by the BBC in 2019, with the aim of combating ‘fake news’.
In January, Kennedy’s group first filed the lawsuit in U.S. District Court for the Northern District of Texas. However, the news outlets petitioned to move the case to the U.S. Southern District of New York.
After the judge granted the motion to move the case to New York, Children’s Health Defense dropped the case on May 18.
Days later, Kennedy’s group filed a new lawsuit in federal court in Louisiana.
“When social media companies collude with the government to censor critics of government policies, it violates the First Amendment. When they collude with major mainstream news organizations to censor rival online news publishers, it violates antitrust law,” the plaintiffs’ lead attorney Jed Rubenfeld said in a statement.
Children’s Health Defense has filed an antitrust suit against the BBC (iStock)
The 108-page indictment alleges that the BBC, the founder of the Trusted News Initiative, has admitted the economic motivation, citing a BBC executive who said: “It’s important that reliable news providers work together. Because the real rivalry isn’t right now.” between, for example, the BBC and CNN worldwide, it’s actually between all the trusted news providers and a tidal wave of unchecked (reporting) that’s mainly being broadcasted through digital platforms.”
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Other co-plaintiffs include various right-wing or right-wing entities or individuals: Creative Destruction Media; News about the trial site; Ty and Charlene Bollinger, founders of The Truth About Cancer and The Truth About Vaccines; independent journalist Ben Swann; Erin Elizabeth Finn, the publisher of Health Nut News; Jim Hoft, founder of The Gateway Pundit; Dr Joseph Mercola; Jeff Crouere, host of Louisiana-based radio and TV show “Ringside Politics;” and Ben Tapper, a chiropractor.
The case “plausibly argued that competitors agreed on some common conduct” and “took similar actions against information sources competing with them in some way,” said a former senior attorney for the U.S. Department of Defense’s Antitrust Division. of Justice, who asked that his name not be used. He added that he is not a fan of Kennedy and considered him a “lunatic”.
“The main issue could turn out to be determining exactly what the competitors have agreed to. They have a legitimate interest in fighting misinformation,” the attorney said, adding in an email: “It wouldn’t be unreasonable , and therefore it would most likely not be illegal, for the competitors to create a joint mechanism that enhances each of them’s ability to effectively combat disinformation.”
However, he continued, “An agreement that goes further and includes an obligation to censor certain content (to use a term used throughout the complaint) may cross the line into impermissible restriction of trade.”
The Trusted News Initiative website says it is “a partnership set up by the BBC that includes organizations from around the world”. It also lists numerous other overseas news outlets as well as Meta, Microsoft and Twitter as members.
“Including media organizations and social media platforms, it is the only forum of its kind in the world designed to address disinformation in real time,” the website says. It also adds: “Partners alert each other to high-risk misinformation so content can be quickly reviewed by platforms, while publishers ensure they don’t unwittingly share dangerous untruths.”
Robert Kennedy Jr. is president of the Children’s Health Defense. (John Lamparski/Getty Images)
The BBC press service responded to an inquiry into this story by not commenting. The Washington Post, Associated Press and Reuters media relations agencies have not responded to questions about this story.
“People are losing trust in the legacy media and legacy media – instead of thinking about their shortcomings and making changes – instead, through TNI, double down to protect their own economic interests,” Kim Mack Rosenberg , Acting General Counsel for Children’s Health Defense, said in a statement.
The plaintiffs’ complaint also cites the Supreme Court’s 1945 ruling in the United States v Associated Press held by the AP violated the Sherman Antitrust Act of 1890. The Supreme Court’s majority view held that “the widest possible dissemination of information from diverse and conflicting sources is essential to the good of the public,” adding: “Freedom of publishing is guaranteed by the Constitution, but freedom to combine to prevent others from publishing is not.”
Democratic presidential nominee Robert F. Kennedy, Jr. (center), flanked by Jeb Bradley, President of the New Hampshire State Senate (left) and Sherman Packard, Speaker of the State House, at the Statehouse in Concord, NH, June 1, 2023 (NH Senate)
Lidsky, a law professor at the University of Florida, noted that newspapers lobbied for the Newspaper Preservation Act of 1970, which allowed competing newspapers in the same market to merge advertising departments while still retaining competitive editorial votes. This law itself was passed in response to a 1969 Supreme Court ruling in Citizen Publishing Co. v. United States, which argued that two rival newspapers in Arizona could not have such a cooperative agreement.
Nevertheless, Lidsky noted that this case depends on facts.
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“Sometimes lawsuits are brought to publicize a case. That’s probably the case here,” Lidsky said. “It’s hard to say how viable this case is legally, but briefing or discovery could shed light on these media actors.”
Kennedy, son of former New York Senator and U.S. Attorney General Robert F. Kennedy, is an environmental lawyer and anti-vaccine activist. A long shot in the Democratic primary, he has garnered a surprising amount of support challenging President Biden, with the poll reaching 20% shortly after his campaign announcement.
