Competition for Misinformation and Truth

Antitrust has adopted the “marketplace of ideas” from the First Amendment. The essence of this standard is that people should rationally demand the truth, thereby causing accurate information to overcome falsehoods without antitrust’s help. This has, though, produced an odd approach in which antitrust promotes the flow of information without any regard for its truthfulness. Indeed, antitrust courts have ruled that misinformation’s remedy must come from more speech as opposed to enforcement. Judges have also asserted that misinformation is a form of competition, versus an anticompetitive act, because aggrieved companies can win over consumers by exposing their rivals’ lies. In fact, antitrust refuses to scrutinize whether misinformation entails a consequence of monopoly power, despite the prevalence of inaccurate content in concentrated markets like journalism, digital platforms, and more.

     That said, what if people consume information in ways that defy antitrust’s expectations? Whereas antitrust refuses to remedy misinformation because consumers should rationally consume truthful information, perhaps people may actually prefer misinformation. This Article delves into cognitive and behavioral scholarship to explain why misinformation thrives in voids of competition. It shows that people become increasingly likely to demand misinformation in (1) rational and (2) irrational ways when competition declines. First, cognitive biases and conditions such as anxiety and depression have not only spurred people to find comfort in misinformation but to do so where they irrationally accept costs including, say, incarceration, sickness, or unemployment. This is especially prevalent in the absence of journalism, as dominant platforms can flood users’ feeds with misleading content meant to induce anxiety, enrage, comfort, and grab attention. Second, espousing misinformation can qualify as rational when it allows a person to join a community, find purpose, or maximize their welfare. These dynamics help to explain why misinformation has exploded in rural areas, news deserts, and informational monopolies where social isolation is greatest and credible news has dried up.

     Given misinformation’s prevalence in concentrated markets, the answer should come from more competition rather than just more speech. Knowing that antitrust law redresses inefficiencies caused by monopolies and trade restraints, enforcement should begin to treat misinformation as a market failure. When anticompetitive conduct creates a bottleneck of information, monopolists can generate revenue from filling voids with false and misleading content. Because monopoly power creates incentives to spread misinformation, and people become especially prone to believing falsehoods when living in a news desert, antitrust could attack the market structures that enable misinformation. Not only would this approach foster accurate information without entering unconstitutional waters like forcing a news organization or website to publish both sides of a debate, but it could better align antitrust with the First Amendment. To do so, antitrust must first assess why monopolies, news deserts, and informational vacuums impede “rational actors” from consuming truthful content. In fact, this research would help to inform recent developments, as the White House, Supreme Court Justices, subcommittees of the House of Representatives, Federal Trade Commission, and more have begun to debate antitrust’s evolving treatment of speech, information, and misinformation.