The First Amendment’s Boundary Between Expression and Commerce
Plus agency independence, encryption, and more…
First Amendment: Santana’s article in this month’s issue of Concurrences provides a First Amendment primer for understanding when antitrust law can be applied to publishers (broadly defined) and those interacting with them to moderate—or, as some say, suppress—content.
Berin’s article builds on Santana’s framework to locate the boundary between protected expression and commercial conduct subject to antitrust law. Reviewing the relevant cases, he finds that none justify applying the competition law to content moderation.
As this edition’s editor, Bilal wrote an introduction drawing on his time as senior staff to former FTC Chairman Joseph Simons, noting the agency’s longstanding view that political content lies outside its authority.
Litigation: Corbin filed an amicus brief in Trump v. Slaughter urging SCOTUS to maintain the independence of the FTC and other traditional multimember agencies. The brief was featured in Radio & Television Business Report and VitalLaw. For more, check out Corbin’s essay in The Unpopulist.
FCC: Our petition with Protect Democracy asking the FCC to repeal its news distortion policy was the subject of a lead editorial in the Wall Street Journal. It was also mentioned in Broadband Breakfast, Ars Technica, Nieman Lab, and InsideRadio.
Antitrust: On a new Tech Policy Podcast, Corbin and Geoff Manne (ICLE) break down a judge’s ruling laughing the FTC’s antitrust lawsuit against Meta out of court.
Appearances: Santana was the inaugural speaker at Akron Law’s First Amendment Law Society, which was recently co-founded by one of our legal interns, Elizabeth Grossman. She spoke about age verification laws, the legal definitions of obscenity, and much more.
AI: Andy gave a guest lecture on AI Policy for an LLM Ethics class at Chapman University. He discussed relevant federal authority over AI, high-impact state laws, and the ongoing debate over who should regulate cutting-edge technology.
GNI: We’re excited to announce our membership with the Global Network Initiative (GNI), strengthening our shared commitment to user rights, freedom of expression and privacy. We look forward to collaborating with fellow GNI members to tackle these emerging threats.
Encryption: We joined several civil society partners in a global statement on the role of encryption. We emphasize that strong encryption is vital for privacy, data security, and digital trust, urging governments to strengthen—not weaken—encryption to ensure safe, secure online engagement for all.
Upcoming Appearances: Our experts are scheduled to speak at the following events this year:
Wed Nov 26: Broadband Breakfast – The State of AI: What It Means for Kids (Virtual, Corbin)
Mon Dec 10: PLI – Online Platforms and Popular Technologies 2025 (San Francisco, CA, Berin)
