Title: Antitrust in the Spotlight

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We're doing some segments on Trump nominees who are not necessarily the top names in the headlines, but who could have a big impact on Americans' lives anyway. We talked about his pick for agriculture secretary last week in the context of our Climate Story of the Week. We have one coming up on his labor secretary, a surprisingly pro-labor member of Congress. Will she really implement workers' rights versus employers' privilege policies unlike most Republicans, or is that appointment just performative? We'll have that conversation probably next week. Today, Trump's three picks for monitoring antitrust and generally regulating domestic trade. If that sounds dry and irrelevant to your life, here are two reasons why this area really does hit home. One, a court ruled this week - did you hear this? - against the merger of two giant supermarket chains, Albertsons and Kroger's, technically an acquisition of Albertsons by Kroger's. If the election turned to a big degree on the price of eggs, as many people say, lack of competition at your local grocery store means they can charge higher prices on your eggs, your Froot Loops, your whatever. We'll talk about the supermarket merger issue as part of the segment.

Number two, here's a great clip from the outgoing chair of the Federal Trade Commission, President Biden's FTC chair, Lina Khan, considered a hero to many in progressive economic circles. She explained on Hasan Piker's podcast, Hasan Daily, that her job is about something as basic to Americans as freedom.

Lina Khan: The way people experience freedom in their day-to-day lives is less through interacting on an ongoing daily basis with their government representative, but is through all of these commercial interactions and transactions and economic relationships. If you allow bullying and coercion to be okay in our economic realm, that's really going to undermine people's experience of freedom and liberty. The principles of antitrust and anti-monopoly are actually foundational to our country as a democracy.

Brian Lehrer: That's the outgoing FTC Chair Lina Khan on Hasan Daily. We will hear another clip of Lina Khan and one of Trump's pick to lead the FTC, Andrew Ferguson coming up. Listeners, we'll open up the phones for you even before we introduce our guest who has a question or a story or a comment about anything having to do with the Federal Trade Commission or antitrust. It's in the Justice Department too. My guest is going to be Leah Nylen from Bloomberg News in just a second. We're hooking up our line, which is why I'm vamping like this. She's an antitrust reporter for Bloomberg News. They actually have that beat. Who has a question or a comment or a story?

212-433-WNYC. Issues here include the impact on your lives of the tech giants being so giant, both from an antitrust and freedom of speech perspective. It's very much about free speech on social media from Trump's point of view, guiding his choices to do these jobs. We'll get into that. Also, monopoly pricing at your local supermarket. 212-433-WNYC, 212-433-9692. Who has a question or a comment or a story? Anybody with a small business, maybe even a small grocery store concerned about consolidation like a supermarket merger or the amount that the giants like Amazon, Walmart, maybe Target are taking over the grocery store space? 212-433-WNYC, 212-433-9692.

As your calls and texts are coming in and as we are still hooking up our guest, here again, is Lina Khan, the outgoing Biden FTC chair on Hasan Piker's Hasan Daily podcast. She was asked to explain to their audience what the Federal Trade Commission does.

Lina Khan: This is a federal agency that was created 110 years ago. We actually just celebrated our 110th birthday. The agency was created basically against the backdrop of the robber barons, the industrial trusts. Think the meat trust, the steel trust, the oil trust. Basically what had happened was we'd had the Industrial Revolution, all of these great technological advances, these new technologies, but simultaneously a lot of concentration of power in the hands of a relatively few number of individuals and firms. At that time, the way that these monopolies were organized as businesses were kind of trusts, hence antitrust, hence trust-busting.

The basic idea was really one that goes back all the way to the founding, which was if what we care about is Americans being free and having real liberty and not having to worry about the arbitrary exercise of power, you need to have safeguards against the state. Our Constitution does that in terms of checks and balances. You also need to have safeguards against tyrants of trade, as they were called.

Brian Lehrer: The origin and meaning of the Federal Trade Commission, according to Biden appointee Lina Khan. Any particular Lina Khan fans out there? She's almost a cult figure, if that's a fair term to use. Certainly, a rock star in progressive economic circles, like I said before. 212-433-WNYC if you have any Lina Khan worship or Lina Khan antagonism for that matter. 212-433-9692. The Trump nominee is going to be very different. We're going to play a clip of him now, President-Elect Trump's nominee, Andrew Ferguson. This is from an Instagram video from the conservative Federalist Society. He's talking here about big tech and corporate consolidation generally. In the context of a social media free speech versus disinformation case known as Missouri v. Murthy.

Andrew Ferguson: The sort of thing, the concern that Murthy raises, which is the government either coercing by threatening to retaliate against a business if it doesn't do something, or cooperating, colluding with a business because they conclude it's in their mutual interest, given their large size, to control the conduct of the individual. Even though that is private power in a meaningful way, it still is inconsistent with human flourishing and with the individual liberty, we need to achieve the human flourishing if we're just being directed by the government through their lackeys in a market. I think that that is a decent argument that one can make in favor of an anti-consolidation principle as necessary to Republican virtue.

Brian Lehrer: Some of that is a little dense and we'll get into it. You hear the competing definitions of what Lina Khan called freedom and what Andrew Ferguson called liberty in their two approaches. Trump FTC chair nominee and he doesn't need Senate approval for this one, so he's automatically in, Andrew Ferguson. Bloomberg News antitrust reporter, Leah Nylen, does join us now. Again, she is antitrust reporter for Bloomberg News. Leah, sorry about whatever trouble we had hooking you up. Thanks for coming on. Welcome to WNYC.

Leah Nylen: Thanks for having me.

Brian Lehrer: Let's start here. There aren't many full-time antitrust reporters in the world.

Leah Nylen: There are not.

Brian Lehrer: Can you just start by riffing on what you do and why you think it matters to our listeners? Lina Khan did in the first clip we played, you probably weren't on to hear it yet, about her job in the field. I thought the clip of Lina Khan on Freedom was really great and wonder what you think about that if you're familiar with it and about your beat generally.

Leah Nylen: I cover antitrust, which I generally just tell people is the rules that the government has created so that businesses play fair in the marketplace. That can incorporate mergers, but it can also incorporate business practices of how businesses compete against one another and the tactics that they use to lure customers or sometimes even try and trap customers or suppliers into continuing to do business when they don't want to. I've now been doing this about 13 years. When I first started, this was a very, very sleepy beat. There was not a ton happening. Every now and then, you would get the occasional big merger, but there was very little enforcement.

Over the past four or five years, that has changed significantly. The Biden administration has now filed more monopolization cases against companies than there have been since the nineteen-teens. There's been a lot of concern about the level of consolidation within a lot of industries, within the economy. It's not just necessarily the big tech giants, although those are the ones that generate a lot of headlines. For example, the meat packing industry is now more consolidated than when it was first broken up in the 1920s. We have only a few airlines left. It's like back when the antitrust was started, there were only a few railroads.

There are a lot of areas of the economy that antitrust-- Antitrust touches everything across the economy. The Biden folks, and now the Trump folks are really reinvigorating enforcement in a way that is making it much more high profile.

Brian Lehrer: Can you talk about why Lina Khan has so many fans in progressive America? She's not the Biden appointee who makes the most headlines by any means, but she's a rock star in certain circles. Can you tell us why? Did we lose Leah Nylen's line? All right, sorry. Sorry about all these technical difficulties this morning, folks, but there you go. She's back. Leah, did you hear the question?

Leah Nylen: Yes. She's pretty Young. She's only 35. In Washington, that's pretty stunning because we have a lot of folks who are a lot older, in their 80s, who are in power. To have somebody really young and new is pretty exciting. She came to fame when she was a law student. I think that is pretty exciting for law students and younger people, too, that if you have this great idea, maybe you can make your name on it and people will listen to you. It's like the typical almost meritocracy argument. People with a great idea can have a lot of success. It's funny. She is like a rock star figure, but she is personally, a little bit shy. It's funny to see her walk into these rooms where there are hundreds of people really excited to meet her, and she's a little bit bemused by all of it.

Brian Lehrer: Let's take a phone call from Patrick in Queens, who I think is going to say that Lina Khan is not only a rock star on the left, but she's got a fan in the MAGA-leaning Republican Senator Josh Hawley. Patrick in Queens you're on WNYC. Do I have your comment more or less right? Hi.

Patrick: Yes, yes, yes. Hi, Andrew. Thank you for your show. That is right, but I suspect that it'll fall away. I think the populace supporting Republicans may not stand up to Trump to stop him from replacing Lina Khan. It'd be interesting to see what the reporters can do to question Josh Hawley's genuine support to break up monopolies. Perhaps we can talk about that.

Brian Lehrer: Patrick, thank you very much. Leah, does that question make sense to you? Is there a populist wing of the Republican Party that matches up with progressive wing of the Democratic Party on antitrust issues?

Patrick: Yes, there certainly is. I think Josh Hawley and also JD Vance emblemized that. JD Vance has also praised Lina Khan, saying he thought that she was the Biden administration official who was doing the best job. A lot of the picks that Donald Trump has now made are from that wing of the Republican Party. They're calling themselves the New Right. They're a lot more skeptical of corporate power than I think the traditional Republicans are. This is not really the chamber of commerce, always pro-business wing.

This is the younger folks, the people who grew up post-2008 financial crisis who are a little bit more concerned about the concentration of corporate power because they are as concerned about having government power as they are about having a third party, in this case, a company making the rules of how everyone has to play. You see that in some of Trump's picks. Gail Slater, who is going to head the Antitrust Division of the Justice Department, is in fact an economic policy aid to Vance. The two picks for the FTC, Andrew Ferguson and Mark Meador, are also of that being.

Brian Lehrer: Talk about that in a little more depth if you can, especially what parts of corporate power that New Right, as you call it, is skeptical of. What usually makes the headlines is that they're skeptical of corporations that implement DEI policies, diversity, equity--

Automated Voice: This call is being recorded.

Brian Lehrer: I think we've lost our guest again. Leah, you're not there, are you?

Leah Nylen: Yes. They are most skeptical of the tech companies in part because of what they call their ability to censor people. Their ability to decide based on what they say is viewpoint that they don't want certain people to be able to post things. You hear that a formulative moment for a lot of these people was when the various platforms, what they say deplatformed President Trump in the wake of the January 6th riots. Various social media platforms like Facebook, Twitter, Instagram, and others took Donald Trump off of their platforms in response to the insurrection.

That was really upsetting for a lot of people because here are these third parties being able to really decide whether people's messages get out. Tech is the emblematic industry that a lot of the New Right people have problems with, but it's not necessarily limited to that. You do see a lot of concerns in agriculture in part because a lot of farmers and red states have a lot of agriculture. You do see some concerns about consolidation in the farm sector, both with meat packers, farm equipment, things like John Deere, where there are only just a couple of companies left that offer products that people really, really need to be able to do their jobs effectively. You see a some in healthcare. [crosstalk]

Brian Lehrer: Go ahead.

Leah Nylen: Go ahead.

Brian Lehrer: In healthcare. Go ahead. I'm sorry.

Leah Nylen: I was going to say you see some in healthcare because we have now fewer health insurance companies and a lot of the health insurance companies have been buying up doctor's practices. We have a lot of consolidation within the healthcare sector that is making a lot fewer choices for people, particularly in rural areas, where they can even get their healthcare or get their healthcare paid for. I think those are probably the two industries where you may end up seeing a lot more activity in the Trump administration.

Brian Lehrer: That's really interesting. I think we have an example in that healthcare sector from a caller on the phone. Howie in Rockville Centre on Long Island, you're on WNYC. Hi, Howie.

Howie: Hey, Brian.

Brian Lehrer: I see you own two independent pharmacies, is that right?

Howie: I do. I've been an owner for almost 40 years, and nowadays don't even ask me how I'm still surviving in the environment that's present in our industry.

Brian Lehrer: Talk about what that environment is.

Howie: There's two small pharmacies, two neighborhood pharmacies. The environment is the prescription benefit managers. It's vertical monopolies going that have been created. I'm sure most people have heard of CVS and CVS Caremark that owns Aetna. It's an insurance company, it's a pharmacy, and it's a prescription benefit manager. Express Scripts, Cigna insurance company. Express Scripts is a PBM, the prescription benefit manager, and they own their own pharmacies, mail-order specialty pharmacies. Then we have Optum Rx, which I'm a little not surprised, but with UnitedHealthcare in the news so much lately, UnitedHealthcare which is one of the largest insurance companies also owns Optum Rx. Those three entities control over 80% of all prescriptions filled in the United States. They rigged the system.

Brian Lehrer: They rigged the system. Is the monopoly power there, Howie, as you see it, that they offer the people who are insured by those insurance companies better prices on their prescription drugs if they get them through their company's mail order service?

Howie: That's how they sometimes can skew the playing field. They offer lower copays to card members. Yes. They have access to all of my information. I transmit claims to these companies all day long. Now they know all of my demographics, everything that I take, who my doctors are. They'll very often call up the doctor and say, "For Brian Lehrer, we want to fill his high blood pressure medication. Can you send us a prescription for 90 days' supply?" Sometimes they don't even ask the patient if they want that done. The contracts that they offer us are one-sided contracts. There's no negotiation.

The biggest problem in our industry currently is I have to pay X dollars for a medication, and they will pay me below my cost. There are some of our pharmacists that are getting reimbursed $100 to $200 below the cost of a medication. All of these GLP-1 drugs, not all of them, but a lot of them are below reimbursements.

Brian Lehrer: Like Ozempic?

Howie: Correct.

Brian Lehrer: By the way, the fine print asterisk, Brian Lehrer is not on high blood pressure medication. My parents should not worry hearing that. That was just a hypothetical from our call.

Howie: Okay. Don't worry, Brian.

Brian Lehrer: Seriously, what kind of regulation do you think would be not just in your interest as a small pharmacy owner but in the public interest in this realm?

Howie: In the public interest when the system is basically one-sided and patients are-- there are a lot of pharmacies that are closing, even the big chain pharmacies, a lot of Walgreens. There are no more Walgreens in Rochester. Patients will have to travel far to get their medications. That's just one thing that affects patients when pharmacies can't survive on the reimbursement that we receive. No dispensing fees, zero.

Then sometimes, at the end of the year, money is even withdrawn from our account based on some cockamamie algorithms that they have of whether we dispense too many brand name drugs or not enough generic drugs. WNYC has done a few stories about prescription benefit management companies that I've listened to. Only now we're having some regulations formulated that have just been signed by Governor Hochul in New York, but nothing has addressed the overall issue of these three behemoth companies really controlling 80% of prescription drug dispensing.

Brian Lehrer: Howie, I'm going to leave it there. Thank you for telling us your story in such detail. I can hear a lot of heads bobbing out there. Let me go back to our guest, Leah Nylen, antitrust reporter for Bloomberg News. Leah, what were you thinking as you were listening to that pharmacist from Rockville Centre? Was he tapping into issues you've reported on or-- I'm imagining a hypothetical Senate hearing chaired by Josh Hawley maybe on these issues and how the Trump administration or the Republican Congress might look at them.

Leah Nylen: Yes. Actually, I was also nodding my head along. This is a story I have heard from a lot of independent pharmacies. The FTC has been investigating these three companies that he mentioned, CVS Caremark, Optum Rx, and Express Scripts. They are the drug middlemen who their job is on behalf of the health insurance companies to decide what drugs they'll pay for and whether it'll be a generic or a brand name drug. They do these deals with the pharmaceutical manufacturers themselves.

The only problem, according to some of their critics, is that they sometimes will do these deals with a drug company that they will have the more expensive branded drug as the one that is preferred in exchange for a rebate from the company. That pharmaceutical manufacturer is in effect paying them to steer patients there. That's not necessarily in the best interest of the patient. That might not be the cheapest one for them. It's not necessarily in the best interest of other pharmacies because as he was mentioning, these pharmaceutical benefit manufacturers now belong to insurers themselves.

The insurers have an incentive to steer their customers to their own pharmacy because it's going to be the cheapest for them and away from independent pharmacies. You do hear a lot of stories about that, that they'll give you preferential copay if you use their mail-in pharmacy or they'll do something like instead of just getting a 30-day supply, they'll allow you to get a 90-day supply for cheaper if you use the mail-in rather than going to the local one. That can be a problem. Mail service in some places isn't always the best. You're waiting for your drug to come in the mail. That was a particular problem during COVID as people who needed their drugs and mail was really slow were having difficulties.

Brian Lehrer: What does this have to do with the price of eggs? We will take that up when we continue in a minute with Leah Nylen, Bloomberg News antitrust reporter. We will talk specifically about the federal judge who, somewhat at the request of Lina Khan, the federal trade commissioner for the Biden administration, struck down this acquisition of one big supermarket chain, Albertsons, by another Kroger's, and the implications for that, and continue to compare the outgoing Biden FTC chair with the incoming Trump one, Andrew Ferguson. We'll get more into that social media free speech issue and where that comes into it. With more of your calls and texts, 212-433-WNYC, stay with us.

[music]

Brian Lehrer on WNYC as we continue to talk about the changing of the guard at the Federal Trade Commission with Bloomberg antitrust reporter Leah Nylen. Now we're going to get into the decision by a judge this week to cancel the big supermarket merger between Kroger and Albertsons. Let's talk about the supermarket case. Leah, you reported on this. A federal judge this week blocked the Kroger chain from acquiring the Albertsons chain. Neither of these are prevalent very much in the New York area where many of our listeners are, but they're huge around the country. How big are they to start this part of the conversation?

Leah Nylen: Kroger is the largest US Supermarket chain. They own a ton of brands, including Harris Teeter and a bunch of others. Albertsons is the second largest one. It owns the Safeway brand and several others. They're particularly big in the West Coast, so Washington state, Oregon, California, and in the Mountain states in particular and the Chicago area. These are some of the states that were going to be the most impacted by this merger.

Brian Lehrer: This was in federal court in the west in Oregon. What was the claim and what did the judge find?

Leah Nylen: The FTC and a lot of states had actually sued alleging that this merger would unfairly hinder competition in grocery market and raise prices for consumers at grocery stores. The companies had argued that they needed to merge to better compete against Walmart, which is the, actually the largest grocer in the United States. Not particularly in cities, but in rural areas, there are a lot of Walmarts that are supercenters, which means that they have the grocery store attached and people can do all of their grocery shopping there.

They said we don't have the same scale as a Walmart or an Amazon and if we combined we could do that and we could get better prices from our suppliers for the groceries that we are ordering on behalf of our customers every week. The FTC said that that was concerning because this, as I mentioned, was going to be the number one grocer in the US combining with the number two. A federal judge ended up agreeing with them. She said even though they argue that they need to get bigger to compete against other people, that's not a defense under the antitrust laws. This is going to harm competition in a lot of places.

More than 1,000 areas across the country would have only a Kroger or an Albertsons left. If they combined, consumers would only have one grocery option, so it could increase prices on a lot of staples like eggs and milk and things that people go to the grocery store for every week.

Brian Lehrer: Did they have a point though that the merger would have helped supermarkets continue to compete against the retail giants, Amazon and Walmart? People don't get their groceries in the mail exactly, but we just heard that story from the small pharmacy owner about how the big national corporate giants that deliver are taking over the industry. Amazon and Walmart, you can get a lot of groceries from them. People do get a lot of groceries from them, just not fresh produce, I guess. Or even there is Amazon Fresh and I think they're merged with Whole Foods now and they deliver through them. They're not supermarkets, but they also sell groceries. Why didn't that argument win the day in court?

Leah Nylen: The judge acknowledged that they did consider the Walmarts and the Targets and the Whole Foods of the world in her decision. She said in a lot of these areas, these Kroger and Albertsons are the only places where you can get some of these things like fresh produce, like dairy, like deli meats, like frozen food. Yes, while you can order maybe canned goods or your cereal, your dry goods, as it's known, from an Amazon, or go to Walmart and get those, you're not going to be able to get these other things. The competition laws still exist, even if it's for a smaller market like that for the fresh goods.

Now that that has been blocked, Kroger and Albertsons have called off the deal and are now suing each other over which one was at fault for the failure of the deal. Albertsons is maintaining that Kroger owes them a very large breakup fee for the failure of the deal to go through, and Kroger says that Albertsons didn't help them enough in the lawsuit as it was going forward, so it's their fault. That lawsuit will probably go on for a couple of years as they figure out who's responsible for everything.

Brian Lehrer: Listener writes, "What is it about eggs and milk that we cannot identify price gouging? Are farmers benefiting? Is it mostly a local supply chain issue? No," writes that listener. Of course, that was one of the main ways that Kamala Harris was running for president on the issue of inflation, trying to identify price gouging, including in the grocery sector. Anything you can say about that in relation to your beat as antitrust reporter?

Leah Nylen: Yes. We right now don't have that price gouging law nationally. There are a bunch of states that do have price gouging laws in particular. Generally, those go into effect after a natural disaster. For example, if there's a hurricane in Florida, it's against the law for you to jack up the price of water or wood or supplies in the immediate aftermath of an emergency. Some states expanded that during the COVID pandemic to make it illegal to jack up the price of, for example, PPE and things like that during the pandemic. We don't have a price-gouging law at the national level. That was one of the things that Kamala Harris had suggested.

They do have a pretty strong price gouging law in California, where she was formerly the attorney general. She said this is something that the states have been leading on. Maybe we should have a national price gouging law because we have seen some instances where in the post-pandemic world, the supply chains have gotten crunched. We've seen some crazy pricing on household staples or some things that the federal enforcers could go after there. She got roundly criticized by a lot of the food companies for this because they maintain that they are not price gouging, that the prices that they are charging for things they do go up when there are supply chain crunches.

They maintain that the retailers lower them once these shocks are over. That may come to light again as we go into the next Congress, but I'm not certain if that proposal is going to have legs going forward.

Brian Lehrer: Let's take another call. Here's Wendy in Springfield, New Jersey, who is a fan of the outgoing Biden Federal Trade Commission chair Lina Khan, who we heard a couple of clips of earlier. Wendy, you're on WNYC. Hello, the Source.

Wendy: Hi. Yes, I read a Washington Post article, I was still a subscriber then, and there was a link to the Yale Law Journal article that she wrote. I read it and it was well written, no legalese. She talks about the history of it, and then she comes to the president. She talks about there was a little diaper service that was online and the big A came in and undercut their prices and then people switched to that. Then once that was destroyed, then Amazon was the only game in town and they raised the prices. This pharmacist who just talked about vertical integration, that's what the Hollywood studios are doing. They own the actors, they own the movie, and they own the distributor.

They got broken up because that was vertical integration. This is the Second Gilded Age. That's why I really I'm sad that Lina Khan is gone because I know we're going to be a Gilded Age on steroids now.

Brian Lehrer: The Second Gilded Age. There's so much in the news that's relevant to that comparison right now. Wendy, thank you very much. What were you thinking, Leah, as you listened to Wendy? Very relevant to your beat as Bloomberg News antitrust reporter, right?

Leah Nylen: Yes. One thing that I think is also noteworthy about Lina Khan and the Biden administration is they've really sought to what they call democratize antitrust, which is explain it in ordinary terms, as she was saying, like the article that Lena Khan wrote that made her famous, was not very legally. That sounds funny, but it was a law journal article that everyone could understand. I think that's part of why it took off. That's one of the things that I think that this administration has done pretty well is explain how antitrust relates to actual people and why they should care about it.

Brian Lehrer: By the way, on what I said about Albertsons and Kroger's not being so much in the greater New York area, listener texts, "In a way, they are within an 8-minute drive of my home. In Summit, New Jersey there are three Albertson supermarket,s but operating under two different brands, Acme and Kings." That's I guess, another example of the consolidation. There are all these different names, but they're owned by the same chains in some of these cases. I want to replay the clip that I played at the beginning of the segment before we hooked up our line with Leah from Bloomberg News.

Here's President-Elect Trump's nominee Andrew Ferguson, nominee to lead the Federal Trade Commission after Lina Khan in an Instagram video from the conservative Federalist Society. He's talking here about big tech and corporate consolidation generally, but in the context of a social media free speech versus disinformation case known as Missouri v. Murthy. Murthy is the surgeon general under Biden. Vivek Murthy. Here is Andrew Ferguson.

Andrew Ferguson: The sort of thing, the concern that Murthy raises, which is the government either coercing by threatening to retaliate against the business if it doesn't do something or cooperating, colluding with a business, because they conclude it's in their mutual interest given their large size, to control the conduct of the individual. Even though that is private power in a meaningful way, it still is inconsistent with human flourishing and with the individual liberty we need to achieve the human flourishing if we're just being directed by the government through their lackeys in a market. I think that that is a decent argument that one can make in favor of an anti-consolidation principle as necessary to republican virtue.

Brian Lehrer: Andrew Ferguson, who's going to be the next chair of the Federal Trade Commission. Leah, can you unpack that for us? That was an interesting clip to me for a few reasons, but I think there were a few issues all folded into that one clip that might be a little dense for a lot of listeners. He's concerned, it seems like on the one hand, about what we hear often from the right. The social media giants were censoring right-wing commentary, especially during the pandemic, but also allegedly on other things, baked in with a skepticism about big tech controlling a lot of market and combined also with this almost philosophical notion of human flourishing.

Leah Nylen: What I take Andrew to be saying there is, when you have a very concentrated market with only a few players, if the government tries to impose on those few players, it's not that hard for them to mandate something because there are only a couple of them to do. The government can put pressure on them to, in this case, moderate their stuff in a particular way, which has the effect of the government putting its thumb on the scale against certain types of speech. He's talking about how even when you have concentration within the private industry, it can contribute to problems that Republicans see with government power.

He was using the word collusion, but he's saying that they were working together in concert to suppress particular points of view. This collusion idea is something that Ferguson and some other Republicans have really focused on. They've been very concerned about a lot of companies getting together and creating diversity initiatives. They've been concerned about companies getting together and doing ESG, environmental, social, and governance-related things. They have been very supportive of some of these lawsuits by X and Rumble and a couple of other platforms against advertisers, what they call advertiser boycotts.

Some advertisers had gotten together in a trade group to determine what they call brand safety guidelines. "We don't want our advertisements showing up next to neo-Nazi content. We'll try and stay or put our advertising only on these types of platforms or platforms that have these sorts of things." X and Rumble and a couple of these other people said that's not really fair. That is the advertisers getting together and colluding on who they're going to advertise with and boycotting certain platforms that aren't doing what they want.

Now, those lawsuits are ongoing even though the actual trade group that these advertisers had created has now dissolved. They decided that it was easier to just dissolve that trade group than fight these lawsuits. That's something that Andrew Ferguson and some of the other Republicans have said they really want to focus on in the next administration, is making sure that these corporate giants aren't putting their thumbs on the scale in particular ways.

Brian Lehrer: Aren't they likely in the Trump administration to lean on social media and other media to do their bidding in whatever ways and they would want the ability to do that?

Leah Nylen: That is the tension. When you are the government, you want these platforms to do what you say. When you are not in power, you don't want them to do what the people in power say. You want them to allow for much more speech so that you can get your message out there. It will be interesting to see where we go from here. One thing Andrew Ferguson has said he definitely wants the FTC to focus on is how social media platforms enforce their terms of service.

That just means how they decide when they're going to ban something, so how they decide if they're going to take down particular posts or ban particular accounts. Whenever you sign up for one of these accounts, you are signing this long thing of legalese. Most people just click through it, but technically that's a contract. If the company is not upholding its side of the contract, the FTC wants to see whether they are actually laying out to people, "This is what you can't post. If you do, we will take your stuff down." Or if that process is too opaque.

Brian Lehrer: How does Elon Musk feel about any of this? Isn't he also censoring content on X that criticizes him? For example, I've read that that's going on and tweaking the algorithm so that it sends a lot of right-wing posts to people.

Leah Nylen: That is the allegation that he takes down accounts that criticize him or things like that. Some of these things also run right into the First Amendment, which is what that discussion about Missouri v. Murthy was actually about. Even though it's a company, it does have some First Amendment rights. The companies have argued that a decision to take down content is not just a business decision, but it's also protected by the First Amendment. They do not have to post content that they disagree with. For example, if Elon Musk wants to say, "I do not allow discussion of me," he is perfectly within his right on his platform to do that. There have been some lawsuits about this and the law is still a little bit unclear, but this is something that perhaps could be taken up by the Supreme Court in the coming years.

Brian Lehrer: I guess because there's the tension. If Facebook or whoever is not Elon Musk and X wants to be able to publish what they want, why does Trump want the government to punish them for their editorial decisions?

Leah Nylen: Yes, that's it. Exactly. It is a company, but it still has some First Amendment rights. It can choose what it wants to platform or not platform.

Brian Lehrer: We leave it there with Leah Nylen, who covers antitrust for Bloomberg News, on the incoming Federal Trade Commission chair Andrew Ferguson, who President-Elect Trump announced this week who he will appoint succeeding Biden's Lina Khan. Thank you very much for talking through the issues that we are likely to hear more of once Trump and Andrew Ferguson take office. Thanks a lot, Leah.

Leah Nylen: Thanks so much.

Brian Lehrer: Brian Lehrer on WNYC. More to come.

 

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