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Remember when Elon Musk told advertisers to go fuck themselves… and then sued them (unsuccessfully) for not advertising on his personal propaganda and manipulation site? Well, it appears that Donald Trump is trying a government-backed variation on that abusive power play: claiming that news networks choosing not to cover him after he announced he was initiating a “free press ban” in the White House… is somehow an antitrust violation.
The Justice Department is investigating whether the major television networks — ABC, CBS, CNN, NBC and Fox News — violated federal antitrust laws when the group briefly suspended their pooled coverage of President Trump, according to six people with knowledge of the department’s action.
Officials from the Justice Department contacted networks on Friday and demanded communications and materials related to the White House TV pool, the people said. The pool is a longstanding system where the networks share the responsibility of providing footage of the president and distributing it to other news outlets.
So, before we get into the details here, let’s just do a quick refresher of the same “antitrust 101” lesson I suggested for Elon Musk two years ago during his lawsuit. While there can be antitrust concerns when a group of businesses get together to engage in a boycott, that only applies to situations where that boycott is focused on actual harms to consumers or competition. A boycott with political and expressive aims is protected under the First Amendment, and publicity campaigns aimed at influencing government are not an antitrust violation. This has been established over and over again at the Supreme Court and beyond.
Indeed, as former FTC chair William Kovacic tells the NY Times, the biggest missing factor here is that for there to be antitrust, there needs to be a commercial motive:
“The critical ingredient in successful antitrust cases is to demonstrate that there is unmistakably a commercial motive and that the commercial motive predominates,” Mr. Kovacic said. “And I don’t think they would ever be able to do that here.”
So this “investigation” is little more than fan service for the MAGA faithful in an attempt to create chilling effects on the media after Trump threw a hissy fit that the media wasn’t covering his every damn word as closely as before. The White House TV “pool” reporting involves a rotating group of media entities which share their work with others so that not every journalism org has to have their own camera crew (there are separate pools for radio and print, again to avoid overlap and crowding).
As a reminder, on Friday, September 18th, Donald Trump announced that he was “banning the free press” from the White House, specifically in the form of pulling the press passes from CNN, Politico, and MSNow reporters. On Monday the 21st of September, CNN had been scheduled to handle the TV pool that day, but since it was barred, it didn’t do so. And the other members of the TV pool — ABC, CBS, NBC, and Fox News — all agreed they would not step in to cover for the White House’s clearly unconstitutional attack on CNN and the other media entities barred from the White House.
Thus, for a few days there wasn’t TV pool coverage, which seemed to piss off Trump, even though it was all in response to his own First Amendment-violating censorial actions. He took to his own personal pinboard, Truth Social, to whine about the lack of coverage of Chinese leader Xi Jinping’s state visit:
CNN and MSDNC, to show you how fake they are, today refused to cover one of the Biggest and Most Beautiful Events to take place in many years, the arrival at the White House of the Highly Respected President of China, Xi Jinping, and his beautiful wife, Madam Peng. The event was magnificent—Actually made for Television but, because they’re Fake News, and because they knew how good it would be, they didn’t want credit to be given to ‘TRUMP,’ they refused to be there. That’s why they have such poor Ratings.
Yes, that’s Donald Trump literally complaining that CNN and MSNow “refused to cover” an event days after he had personally banned them from the White House where the event was happening.
The MAGA base, of course, quickly spun up nonsense claims about how not covering the president was clearly an antitrust violation (it’s not) with Laura Loomer attacking the current boss of the DOJ’s antitrust division, Stanley Woodward, as secretly a “Democrat.”
This is all kinds of stupid, given that Woodward has been a MAGA faithful Trump supporter for years. He represented January 6th rioters, and a whole bunch of people in and around Donald Trump, including Peter Navarro, Dan Scavino, and Kash Patel, among others. Politico even dubbed him “the legal nerd who MAGA bigwigs” turn to when they need help. Woodward was also involved in the ridiculous, illegal $1.776 billion slush fund Trump tried to create as part of a “settlement” with himself over his fight with the IRS.
Meanwhile, back in the actual story, by Thursday of that week a judge had granted a temporary restraining order against the White House, telling the White House to let the reporters back in. It took some time to do so, but eventually CNN, MS Now, and Politico reporters were given their WH press passes back, at least while the TRO remains in effect. And by Friday morning, September 25th, after just four days of no TV pool coverage, the networks restarted the press pool.
The White House almost immediately tested the boundaries of the TRO by blocking CNN from Air Force One (claiming the TRO only applied to the White House itself) the very next day. CNN was scheduled to handle the TV pool for that Trump trip to Tennessee, so the pool went dark again directly because the White House barred CNN from the flight. That same day, however, the networks announced they would restart the TV pool coverage, just without CNN, effectively caving to the Trump White House.
So, to sum up, the non-banned networks stood firm to boycott Trump’s TV pool for… five whole days (Monday through Thursday, and then Saturday) before totally caving and continuing to provide Trump pool coverage.
But Laura Loomer called Stanley Woodward the worst insult you can imagine for a MAGA cultist: “a Democrat.” And thus there must be action to feed the culture war beasts. Hence… an investigation into the networks for refusing to run the TV pool for less than a week in response to Trump illegally banning one member of the pool, that, Trump complained, wasn’t covering him even after he had banned them.
In a statement on Saturday, a Justice Department spokeswoman, Emily Covington, described the five networks as having “proudly boycotted covering White House events.”
“Group boycotts among commercial competitors can violate the Sherman Act,” a core antitrust law, Ms. Covington wrote. “The Antitrust Division is simply investigating to determine whether these news organizations have violated the antitrust laws.”
Again, as discussed above, that’s not at all how the Sherman Act works. And everyone involved knows that full well. The only purpose of this is to (once again) punish the press for its editorial choices — and possibly to get private insight into the networks’ editorial decision-making process as part of the investigation.
I mean, it really needs to be emphasized here that the DOJ is investigating CNN for “boycotting” pool coverage it was literally banned from providing. In the MAGA cultist worldview, Donald Trump can ban whoever he wants from the “free press” but those he does not ban are absolutely required to cover him and spread his conspiracy theories and bullshit to the world.
It’s just a continuation of FCC chair Brendan Carr’s threatened investigation into networks that didn’t broadcast Trump’s conspiracy theory-laden speech about China’s supposed interference in the 2020 election (where the documents he declassified actually showed Russia interfered, not China).
But these stories are all the same basic story: Trump has such a fragile but inflated ego that he believes news networks are required to cover him positively, and that he can punish news orgs that (1) don’t cover him positively or (2) don’t cover him at all.
That’s not how the First Amendment works, but it is how the MAGA Trump world punishes news organizations for their editorial choices. But, of course, all the people who spent years screaming about “Biden admin censorship” are suddenly very, very quiet.
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