Monday, May 24, 2010
Posted by D. Daniel Sokol
ABSTRACT: Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the “fairness” of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and provide a framework that accommodates both First Amendment and antitrust values.
The expressive boycotts this Article addresses are characterized by speech that is political yet also economically self-interested. The boycotts discussed involve scientists protesting research tool purveyors, doctors protesting pharmaceutical companies, and academics and librarians protesting for-profit publishers. The legal regimes that govern such undertakings, First Amendment and antitrust law, have proven inept in addressing this phenomenon, which lies at their intersection. I attribute their shortcomings to a combination of the First Amendment’s excessive reliance upon categorization and antitrust’s unduly narrow reliance on economic efficiency. I then craft a recommendation for handling these expressive boycotts that will help ensure that speech about the market can be as free as the market itself.