TV Networks Protested Press Bans by Declining To Cover Trump. That Might Have Been Illegal, the DOJ Says.

After President Donald Trump banned CNN, MS NOW, and Politico from the White House last month, ABC, CBS, NBC, and Fox News protested by suspending their participation in the press pool that provides widely used video of presidential events. According to the Department of Justice (DOJ), which last Friday demanded network communications regarding the TV pool, that show of solidarity may have violated the Sherman Antitrust Act.

The antitrust investigation adds another layer of bullying to Trump’s vendetta against “Fake News Media Outlets.” The president reflexively threatens to yank broadcast licenses in response to news coverage he views as biased against him. He has repeatedly tried to punish disfavored journalists by excluding them from the White House, culminating in last month’s sanctions against CNN, MS NOW, and Politico, which irked him by running “purposely negative stories.” Now he is deploying the Justice Department against the TV networks that objected to his assault on freedom of the press.

Under a longstanding arrangement, ABC, CBS, NBC, CNN, and Fox News take turns covering the president in venues where press access is limited, sharing the footage with other news outlets. But after Trump excluded CNN from that role, the other networks stopped participating. They resumed their coverage on September 25, the day after a federal judge ordered the White House to restore press passes for employees of CNN, MS NOW, and Politico.

The TV pool suspension was brief, lasting just four days. But it irritated Trump, who on September 24 complained that the networks “refused to cover one of the Biggest and Most Beautiful Events to take place in many years”—i.e., “the arrival at the White House of the Highly Respected President of China, Xi Jinping, and his beautiful wife, Madam Peng.” That event was “magnificent” and “made for Television,” he said, but the networks “refused to be there” because “they knew how good it would be” and “didn’t want credit to be given to ‘TRUMP.'”

As the DOJ tells it, the lack of network coverage was not only annoying; it was also potentially illegal. “Members of the television press pool have boycotted covering White House events,” Emily Covington, who directs the department’s Office of Public Affairs, said on Saturday. “Group boycotts among commercial competitors can violate the Sherman Act,” she added, and “the Antitrust Division is simply investigating to determine whether these news organizations have violated the antitrust laws.”

Section 1 of the Sherman Act broadly prohibits any “contract,” “combination,” or “conspiracy” in “restraint of trade.” But it applies to group boycotts only insofar as they aim to thwart competing businesses.

William E. Kovacic, who chaired the Federal Trade Commission (FTC) during the George W. Bush administration, is skeptical that the concept applies in this case. “The critical ingredient in successful antitrust cases is to demonstrate that there is unmistakably a commercial motive and that the commercial motive predominates,” Kovacic told The New York Times. “And I don’t think they would ever be able to do that here.”

The Supreme Court’s 1990 decision in FTC v. Superior Court Trial Lawyers Association illustrates the importance of a “commercial motive.” The case involved attorneys in private practice who were paid to serve as court-appointed counsel for criminal defendants in the District of Columbia. The FTC concluded that they violated the Sherman Act when they agreed to stop accepting cases until their fees were increased.

Since that agreement was aimed at protecting the right to counsel by ensuring adequate funding for court-appointed attorneys, the lawyers association argued, it was protected under NAACP v. Claiborne Hardware, a 1982 decision in which the Supreme Court recognized a First Amendment right to engage in politically motivated consumer boycotts. But the Court saw an important distinction between the two cases.

“Our reasoning in Claiborne Hardware is not applicable to a boycott conducted by business competitors who ‘stand to profit financially from a lessening of competition in the boycotted market,'” Justice John Paul Stevens wrote. “No matter how altruistic the motives of respondents may have been, it is undisputed that their immediate objective was to increase the price that they would be paid for their services.”

In Claiborne Hardware, by contrast, the boycotters were not trying to reap a financial benefit by reducing competition. Nor were ABC et al. when they “boycotted” the White House TV pool. They were not trying to increase their profits by putting competitors at a disadvantage; they were standing up for freedom of the press.

“The investigation is nonsense,” Seth Stern, chief of advocacy at the Freedom of the Press Foundation, says in an emailed press release. “Trump may view the presidency as a business venture, but news outlets’ standing up for their constitutional rights has nothing to do with antitrust law….Depriving Trump of the attention he craves is not a competitive harm.”