This article about the new antitrust lawsuit from the anti-vaccine Children’s Health Defense was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
On January 10, 2023, the anti-vaccine organization Children’s Health Defense, run by Robert F Kennedy Jr, together with a collection of other anti-vaccine misinformers, filed a federal antitrust lawsuit against the Washington Post, BBC, the Associated Press, and Reuters alleging that their Trusted News Initiative – a collaboration to help combat anti-vaccine and COVID-19 misinformation – violates the Sherman Act, an antitrust law, by being an unlawful group boycott to disadvantage competitors.
The claims are unconvincing and implausible, and represent an attempt to make money off – and deter – efforts to limit the plaintiffs’ harmful misinformation. But at least one news article raised concerns that because the judge hearing them is openly partisan, they may get more of a hearing than they deserve.
The lawsuit is at a very early stage, and we can hope that the judge handles it quickly, but not all judges have swiftly dealt with anti-vaccine claims.
The Trusted News Initiative
In 2020, a group of media organizations and internet platforms created the Trusted News Initiative together to “build audience trust and to find solutions to tackle challenges of disinformation.” Members include the BBC, Washington Post, Meta (Facebook), YouTube, and Twitter. According to its website, what the Initiative does is:
- “Fast alert against the most harmful disinformation
- Discuss trends
- Media education and shared learning
- Engineering solutions”
This, obviously, is not how the anti-vaccine lawsuit presents this.
The anti-vaccine antitrust suit claims
I will start with a caveat. I am not familiar with anti-trust law. I discussed the case with a colleague whose area is corporations law, but he also warned me that anti-trust is not his focus. I tried to find someone who does specialize in it and has some knowledge of public health, but so far had little luck. I am sure there are people like this, but I do not know them yet. I did draw in part on the article in Vox.
The anti-vaccine lawsuit claims that the Trusted News Initiative is a group boycott, “a concerted attempt by a group of competitors” to “disadvantage [other] competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle” or by “cut[ting] off access to a supply, facility, or market necessary to enable the boycotted firm to compete.”
Plaintiffs argue that this is an effort by competitors to disadvantage competitors by cutting off their access to the market – in this case, apparently, the market for online COVID-19 news, by denying them access to internet platforms, and by doing it for economic motives.
To support this, the anti-vaccine antitrust lawsuit makes extensive use of a 1945 case, Associated Press v. United States, in which the Supreme Court upheld summary judgment against certain bylaws of the Associated Press for violating antitrust laws.
The complaint alleges that this boycott caused the plaintiffs economic harm and names high amounts of damages. Who are the plaintiffs?
- Children’s Health Defense, formerly the World Mercury Project, is a large, well-funded anti-vaccine group devoted to protecting children by preventing them from missing out on dying from diphtheria, COVID-19, and other preventable diseases.
- Robert F. Kennedy, Jr., chairman and founder of Children’s Health Defense.
- Trialsite Inc., which publishes articles misrepresenting, for example, VAERS reports, or misrepresenting articles in scientific journals by, for example, presenting this article that said that “ rapid development and deployment of SARS-CoV-2 vaccines has saved innumerable lives and helped to achieve early partial pandemic control” before going on to discuss limits on them and potential improvements as saying that the vaccine is a “scientific and public health failure.” While this organization is not an old anti-vaccine organization, it is clearly a source of misinformation.
- Creative Destruction Media, LLC, another new one for me, is owned by a gentleman called Todd Wood who claims to have been a volunteer for special operations. I still don’t know much about it.
- Erin Elizabeth Finn, Dr. Joe Mercola’s partner and herself a regular promoter of misinformation.
- Dr. Ben Tapper, a chiropractor, also promotes anti-vaccine misinformation.
- Jim Hoft, who writes the misinformation publication The Gateway Pundit.
- Ben Swann has been promoting anti-vaccine conspiracy theories at least since the day of the baseless conspiracy theory of the CDC Whistleblower and continued during the pandemic.
- Ty and Charlene Bollinger, after making their initial fortune selling fake cancer cures and misleading vulnerable people with cancer, pivoted to anti-vaccine misinformation.
- Dr. Joe Mercola has built a profitable empire by promoting health misinformation and putting people at risk.
In short, it is fair to describe most of the plaintiffs as routine promoters of anti-vaccine misinformation.
The problems with the anti-vaccine antitrust claims
Let me start with something that is not, in fact, a legal problem for the plaintiffs – something they are right about. The lawsuit is a bit strange in most contexts because the plaintiffs’ main complaint is that they were harmed by being shadowbanned or removed from social media platforms – but they are not suing the platforms.
Instead, they are suing the main news outlets. My best guess for that is that the plaintiffs want to avoid the suit being rejected because of § 230 of the Communications Decency Act, which protects social media companies from any liability for restricting or removing content. Although it’s not clear that this would be a barrier to antitrust claims, it could be.
The problem that might appear to observers is that the “exclusive access” to facilities “essential to effective competition” that the plaintiffs need to show to make their case that they are being boycotted in a way that harms competition is only by the social media company – they’re not claiming any of the actual plaintiffs are blocking access at all.
However, plaintiffs are correct that if there was, in fact, a group boycott by both their plaintiffs and the tech media companies, they, as plaintiffs, can choose which members of the group to sue and do not have to sue all of them.
This is not an Economic Group Boycott
Where plaintiffs are wrong is first, that the claim that the motivation of the Trusted News Initiative (TNI) is economic is very unpersuasive. There is no reason not to take the initiative as doing what it says – working to fight harmful disinformation. Here is what the site says:
There is a human cost to disinformation. Our media partners come across it daily in the stories they cover, whether it is a threat to health caused by medical falsehoods or disruption to democracy.
This is not an economic boycott. This is a socially motivated action that seeks to counter misinformation. This matters, because social or political boycotts are not a violation of antitrust laws, and are protected by the First Amendment.
The complaint argues that the goal is economic because:
…legacy news organizations are today facing, and know they are facing, a profound competitive threat from the proliferation of smaller online news publishers, which frequently engage in reporting that directly contradicts and competes with mainstream news reporting and that has repeatedly revealed the bias or ideological slant behind mainstream news reporting. As a result, rival non-mainstream online news publishers pose an existential economic threat to legacy news media, eroding trust in legacy news organizations, taking audience share from them, and undermining their reputation.
Large media organizations probably are concerned about smaller online outlets, but that does not make the TNI other than what it seems to be – a collaboration to stop harmful misinformation. Plaintiffs know well that much has been written about the dangers of misinformation, and that the harms of misinformation have been broadly discussed during the pandemic. Media groups have engaged in an extensive fact-finding effort and have been running behind in countering misinformation. An initiative to combat it is a positive thing.
The type of boycotts that have been previously found to be a problem under anti-trust laws are conspiracies to do things like acting directly to exclude competitors from the market.
The main action item of the TNI is to warn each other of misleading claims. Then they can consider what to do, and yes, de-platforming is an option. Among other things that they are looking to do are Project Origin, which would allow verification of content and knowing if it was altered, and similar projects. This is not an economically motivated action to exclude the plaintiffs from the market because they’re competitors. It’s an effort to counter harmful misinformation, focusing on the misinformation, and the plaintiffs are affected only because they are, in fact, frequent spreaders of misinformation.
The Supreme Court case the complaint uses
The complaint quotes heavily from Associated Press v. United States, a 1945 Supreme Court case that upheld a judgment against Associated Press over exclusionary practices. The complaint quoted this to say that anti-trust laws can be used against the press. So far, so good. But a closer look shows that the case should be used against the plaintiffs’ complaint.
In Associated Press, members of the Association “set up a system of bylaws which prohibited all AP members from selling news to nonmembers, and which granted each member powers to block its nonmember competitors from membership.” The question was whether these bylaws violated anti-trust laws, and the court found they did, and “enjoined” – stopped – them from operating. This is different — it’s directly about selling the product – news – and about limiting access of competitors to the product, news.
It is not about responding to misinformation, and the case does not suggest or imply that a verification effort by the Associated Press – or an effort to verify news or limit the spread of misinformation – would have been an anti-trust violation. It is directly about collaborating to limit access to news stories for competitors to reduce economic competition.
Plaintiffs are, in fact, misinformers
Plaintiffs devote part of their complaints to trying to list cases they thought showed that TNI was not only targeting misinformation, but many of their claims fail. The first two claims are claims that COVID-19 was manmade or bioengineered; the complaint appears to be building on the question of whether COVID-19 was leaked from a lab, which has initially been treated as misinformation, and then the media withdrew from that position. Some sources suggested a hypothesis that COVID-19 has been leaked from a lab (and I agree with those suggesting that the evidence is against this), and the media has therefore taken a more cautious approach.
But that does not rebut the fact that many of the claims that the virus is a bioweapon is misinformation – harmful misinformation. Other claims they suggest are not misinformation are that HCQ and ivermectin are effective treatments for COVID-19 – both untrue. Many of the other claims are also untrue, like “claims that the covid vaccines are toxic or harmful or contain toxic or harmful ingredients.” A lot of data shows that these vaccines are very safe.
The plaintiffs’ claims show that they are misinformers – for example, on pp. 65-66 the complaint shows Trial Sites News promoting misinformation about ivermectin. P. 68 shows CD Media alleging that COVID-19 was “Created in Lab And Intentionally Released… This Is An Act of War.” (capitalization in original). This is not supported by any good evidence.
P. 71 has Chiropractor Ben Tapper alleging that people have a “99% success rate” at fighting” SARS-CoV-2, the virus that causes COVID-19, and alleges the vaccines have “thousands” of side effects reported. Mortality aside, COVID-19’s complication rates are substantially higher than 1%, though the rate varies with age. A certain percentage of people will develop long-lasting complications after the disease, and we are still learning about those.
And so forth.
What happens now with the anti-vaccine antitrust suit
You would hope that a court would give short shrift to such a complaint. But the United States appoints its judges politically, and the complaint is now being heard before a judge who is, alleges the VOX article, openly partisan. The anti-vaccine antitrust lawsuit is still in its very early stages, so we can hope that the judge will make short work of it and dismiss it, but we cannot assume that.