The statutory framework and the Rule of Reason
Antitrust law, as described by Ryan Young on The Bob Zadek Show, is built on a two-page federal statute containing vague terms such as “monopoly” with no guidance for courts. Bob Zadek characterizes the law as having little to do with the merits of any particular matter, since the vague statutory language gives judges a blank slate to apply the accepted standard of “Rule of Reason.” Under that standard, Zadek argues, a trial judge can apply his or her own Rule of Reason and cause economic havoc in the marketplace, producing decisions less likely to be overturned on appeal. Zadek’s framing is that antitrust is purely economic in concept but 100% political in operation Antitrust 101 with Ryan Young (2019).
Young agrees that antitrust law does not have a single goal. Some people want to use it to fight concentrated power on the theory that a company can be too big and might subvert democracy or promote inequality. Others view it as a way to protect the consumer, and Young says this is how antitrust law works today: it does not matter if a company gets big or dominates its market, as long as it does not hurt consumers. Young also notes that Republicans have changed their stance on antitrust to where they want to use it to regulate political speech, which he describes as what the Twitter flap is about and not an antitrust issue at all Why Trustbusting Big Tech is a Bad Idea (2020).
Young explains that the consumer welfare standard has been the dominant school of thought in most court cases since about the 1980s, but it has never been codified and there is no bright-line predictable standard people can follow. He warns that it could turn back on a dime as soon as the next big antitrust case, making it a slippery slope if one judge in one decision decides to change it Antitrust 101 with Ryan Young (2019).
Historical cases
Young walks through several major antitrust cases and argues that none accomplished an improvement in the marketplace. In the Standard Oil case, the company was continually cutting its prices and increasing its supply, making its product more available and cheaper for consumers. During the litigation, the electric light displaced the gas lamp, killing the kerosene lamp market that had made Standard Oil’s name; then the automobile created rising demand for gasoline, and Standard Oil had to adapt to consumers rather than the other way around. Young calls that antitrust case a waste of time Antitrust 101 with Ryan Young (2019).
The IBM case in the 1960s lasted about 13 years, by which time the government decided to drop the case altogether because the technological issue at hand had long since become obsolete—a common theme in the tech industry. The Microsoft case in the late 1990s centered mainly on Microsoft including a free browser, Internet Explorer, in its Windows operating system. That browser was since supplanted by other browsers, from Google’s Chrome to Netscape to Firefox, that can be downloaded for free using Microsoft’s own browser. The case ended in a settlement, neither a victory nor a defeat for either side. Young’s account of the major cases is that there has not been a single one that—at which point Zadek interrupts to ask about AT&T and Bell Labs Antitrust 101 with Ryan Young (2019).
On AT&T and Bell Labs, Young says Bell Labs and AT&T were a government-supported monopoly, which he calls the only kind of monopoly that can endure. The government was right to break it up, in his view, but wrong to have protected that monopoly and preserved it in the first place. He characterizes the breakup as righting a wrong rather than affirmatively protecting consumer welfare Antitrust 101 with Ryan Young (2019).
The Baptist and Bootlegger dynamic
Young describes antitrust as a confluence of two separate things. It began as special interest legislation to protect competitors rather than competition, and he states that 95% of all antitrust lawsuits are brought not by the Justice Department or the Federal Trade Commission but by competitors trying to take down their other competitors, trying to advantage themselves rather than preserve the larger market process. The other dynamic is public sentiment: people fear the unknown, they see big and view big as bad, sometimes with good reasons and sometimes misguided. Young calls this the “Baptist and Bootlegger” dynamic, comparing it to a moralizing Baptist preacher and a shady bootlegger both favoring a liquor prohibition on Sundays—the preacher because he does not want people drinking on the Lord’s Day, the bootlegger because he enjoys a lucrative monopoly on Sundays. Young says the same dynamic is in play in a lot of antitrust regulation, where companies want to pad their bottom line even if they have to do so unfairly, alongside people who genuinely feel that reining in the big guy and saving David over Goliath would do good for consumers Antitrust 101 with Ryan Young (2019).
Zadek raises the question of whether antitrust policy is designed to protect other businesses—would-be competitors who cannot compete against a company like Walmart because of size—or whether it should only protect consumers. He notes that historically antitrust legislation was based on protecting consumers, and asks whether a company so big it can afford through economies of scale to sell at a really low price, so that nobody can compete, should draw the attention of regulators. The excerpt cuts off as Young begins to answer with the word “Antitrust” Why Trustbusting Big Tech is a Bad Idea (2020).
Big Tech and the political turn
Zadek observes that the subject of breaking up Big Tech has become an antitrust issue in the political realm, specifically in the battle for the Democratic nomination and possibly the general election. He points out that Big Tech essentially gives away its product for free with unlimited supply, and asks how antitrust legislation and the concept of breaking up Big Tech can coexist when the danger of monopoly is to reduce supply and increase price Antitrust 101 with Ryan Young (2019).
Young acknowledges that creative minds are attacking the issue and that it is frankly hard to undercut zero price. He describes one line of attack: if a company’s revenue model is based on selling ads instead of charging money for services, there is an argument that Google and Amazon are taking away advertising revenue from other sources such as newspapers, and are dominating the ad-serving market. Young says he does not think that argument is necessarily relevant to consumer welfare, but it is a common line of attack Antitrust 101 with Ryan Young (2019).
Zadek asks whether the ultimate test of whether a company is guilty of violating federal antitrust legislation is the effect on consumers, and whether antitrust legislation is essentially the mother of all consumer protection statutes. Young responds that this is a good question, especially about antitrust as consumer welfare policy, and reiterates that antitrust policy is whatever the judge decides is best and reasonable in a given case Antitrust 101 with Ryan Young (2019).
In the later episode, Young addresses the free speech and antitrust arguments against Twitter directly. He says there is no antitrust angle, and that it is ultimately not a question of monopoly power because of what he calls the dozen keystrokes argument. He describes how Google pays Apple as much as $12 billion a year to make its search engine the default on iPhones, and says that if a user does not like Google, switching takes three taps on the screen—a co-worker tried it herself. Young argues that this by itself collapses an antitrust argument on free speech, and that the issue hinges not on the merits but on politics: Republicans want to regulate political speech in their favor, and now that the executive branch is transitioning to the Democrats, they will do the same thing, taking the precedent and new powers Republicans were gearing up to use and using them against Republicans instead Why Trustbusting Big Tech is a Bad Idea (2020).
Young notes that consumers decide whether Twitter, Facebook and Google rise and fall. Google was not the original search engine; it took over from Yahoo and Altavista. Facebook took over from Myspace. He says these things happen all the time because people come up with better ways to do them, and every day there are new startups that might end up being something people prefer. Because of the dozen keystrokes argument, it is very easy to switch over. He states that government should not regulate political speech, calling freedom of speech one of his few absolutes Why Trustbusting Big Tech is a Bad Idea (2020).
Zadek asks what the alleged governmental interest is in what Twitter did with the New York Post blocked Twitter feed. Young says the government should not care, and that Twitter made a mistake when it muted the Hunter Biden story the New York Post published. Other media outlets, including some owned by the same parent company News Corp such as the Wall Street Journal, thought the story was not adequately sourced. Young says he does not have an opinion on that matter but that if he were running Twitter he would have let the story through, because people are competent to decide for themselves. He calls it a business decision and says businesses make mistakes all the time, but it should not be a legal issue because it is a speech issue. He notes the publicity surrounding the muting resulted in a Streisand Effect—it doubled the story’s reach and kept it in the news cycle for days instead of dying quietly Why Trustbusting Big Tech is a Bad Idea (2020).
Zadek explains the Streisand Effect as named for Barbra Streisand, a famous singer and political activist, who was embarrassed when a tabloid ran a photo of her opulent beachfront mansion and sued to stop the paper from running it. Instead of dying quietly, the story’s reach was amplified and more people found out about it, having a laugh at her expense. Young confirms that backfiring is called the Streisand Effect in her honor, and that it happens all the time when people try to clamp down on speech Why Trustbusting Big Tech is a Bad Idea (2020).
Zadek summarizes that the federal government dusting off antitrust litigation to enforce the statute against Google and social media more broadly is unsupportable on the basis of antitrust legislation. He notes that the only possible governmental interest may be in Section 230, which he describes as a piece of legislation most consumers do not know about. Under existing legislation, Twitter, Facebook and Google are free to do whatever they want from an editorial standpoint, or they are not allowed to exercise editorial control over what other people publish on their platforms if they are just like a platform. Once they start editorializing and making editorial judgments, a different body of law is triggered and they could be liable for defamation, meaning litigation exposure and higher costs of doing business. Zadek says they are deathly afraid of being accused of exercising editorial control and of being like a newspaper deciding what gets printed Why Trustbusting Big Tech is a Bad Idea (2020).
Across episodes: the same question, two treatments
Both episodes feature Ryan Young as the guest, and both address the same core question—whether antitrust law serves consumers or competitors—but the treatment shifts between them. In the 2019 episode, Young develops the historical case against antitrust through Standard Oil, IBM, Microsoft and AT&T, and introduces the Baptist and Bootlegger dynamic and the 95% figure for competitor-brought lawsuits. In the 2020 episode, the focus moves to Big Tech and free speech, with Young arguing that there is no antitrust angle to the Twitter controversy because of the dozen keystrokes argument and the $12 billion Google-Apple default search payment. The later episode does not revisit the historical cases; the earlier episode does not address Section 230 or the Streisand Effect. What changes is the target—from the general history of antitrust to its specific application against social media—while the underlying argument that antitrust protects competitors rather than competition remains consistent.
What the sources do not cover
The excerpts do not state the name of the 1890 statute beyond Zadek’s reference to it as the Sherman Act, nor do they identify which amendment or constitutional provision any case turned on. The excerpts do not give the outcome of the Standard Oil case, the terms of the Microsoft settlement, or the disposition of the AT&T breakup beyond Young’s characterization. The excerpts do not state the name of any bill, the state in which any city is located, or the founding date of any institution. The Section 230 discussion is cut off before Zadek can explain the statute in detail, and Young’s answer to Zadek’s question about protecting competitors versus consumers is truncated at the word “Antitrust.”