Antitrust experts doubt Donald Trump's Justice Department is pursuing networks over the suspension of the White House press pool.

The news that the Justice Department is investigating five major networks over the suspension of the White House television pool last month drew criticism as another example of the Trump administration's retaliation against the media. While it may be alarming to First Amendment groups, antitrust experts have doubts about whether the Justice Department […]

The news that the Justice Department is investigating the five major networks over the suspension of the White House television pool last month was met with protests, another example of the Trump administration's retaliation against the media.

Alarming as it may be to First Amendment groups, there are doubts among antitrust experts that the Justice Department can handle many cases.

"I think you have to take any complaint from the Justice Department very seriously," said William Kovacic, a professor of global competition law and policy at George Washington University. Watch on Deadline

But he said an antitrust claim against the networks would likely have "very remote prospects of success."

The issue is "what is the dominant character of this conduct: is it a commercial interest or is it designed to achieve some kind of First Amendment expression?"

"In my view, if there is a commercial motive in this, it is well hidden," said Kovacic, a former chairman of the Federal Trade Commission.

"A group boycott is illegal when it stifles competition, such as by forcing a competitor or competitors out of the market," Diana Moss, vice president and director of competition policy at the Progressive Policy Institute, said via email.

He added: "The arrangement between the five networks was probably designed to increase coordination and efficiency in the distribution of newsreels. There is no anti-competitive purpose or effect. These networks were responding in solidarity to the suppression of a free press (first amendment principle).

The lines between commercial conduct and First Amendment-protected activities can be blurred, but courts have sided with boycotting parties even then.

Sam Weinstein, a professor at Cardozo Law School and a former attorney in the Justice Department's antitrust division, said that "non-commercial boycotts are generally protected by the First Amendment."

"It appears to be a non-starter," he said.

He cited the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware Co., which involved an organized boycott of white businesses in Mississippi in the 1960s. The justices held that the government cannot hold protesters liable for damages when they engage in lawful activities protected by the First Amendment.

Weinstein also cited another Supreme Court case, FTC v. Supreme Court Trial Lawyers, when the justices ruled that a ban on court-appointed attorneys for indigent defendants violated antitrust law because it was intended to increase compensation. The majority compared it to horizontal price fixing.

Weinstein said the latter is different from what happened in the TV pool. Price and compensation were not discussed.

It is not yet clear whether the networks will agree to the Justice Department's investigative request, but the networks have already jointly announced that they are suspending participation in the pool, releasing a statement saying that "no government should restrict a news organization because it disagrees with its reporting."

"The real question is the question of law, not the question of reality," said Einstein.

In a statement over the weekend, a Justice Department spokesperson said: "Members of the television media have boycotted coverage of White House events. A group boycott among business competitors can violate the Sherman Act. The antitrust division is simply investigating whether these news organizations violated antitrust laws.

Democrats have already accused the Trump administration of politicizing the antitrust division, violating norms that have separated the White House from the Justice Department since the Nixon era. Examining networks would likely add another example to their arguments.

"The threat of an antitrust investigation is yet another example of this administration's abuse of regulatory powers to punish the media for doing something the president doesn't like," Bob Kornreaver, senior counsel at the Foundation for Individual Rights and Expression, said via email. Political sanctions are part of a longstanding American tradition and are protected under the First Amendment.

He added: "Whether the government's excuses are cloaked as 'national security' or antitrust law, this is another attempt by the government to end the First Amendment to control news coverage."

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