In his smackdown of the Federal Trade Commission’s antitrust case against Meta late last year, Judge James Boasberg famously wrote that “like Heraclitus’s river, the rapids of social media rush along so fast that the Court has never stepped into the same case twice.”
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It was one of those sparkling asides that can make a court opinion a pleasure to read. Whatever the state of social media, however, the state of antitrust law is not a river running rapid and clear. It is a lazy river in a third-rate waterpark with candy wrappers floating on fetid water.
Not only did the FTC earlier this year appeal a losing argument it lost in 2025, but it has also just been joined by Texas Attorney General Ken Paxton and 28 other state attorneys general to revive a case launched in the last hours of the Trump administration but since chock-full of the tendentious, left-wing ideological arguments of FTC Chair Lina Khan.
Could there be a better demonstration of the nature of the post-conservative Right?
This became clear after Judge Boasberg’s smack-down ruling finding that the acquisition by Meta’s Facebook of Instagram and WhatsApp more than 10 years ago did not constitute a monopoly. How did this case fail? Let us count the ways.
First, the FTC predicated its case on its market definition of “personal social networks,” in which Facebook and Instagram had only Snap and MeWe to compete against. The FTC defined a PSW as an app used to mostly interact with friends and family, rather than broader entertainment apps like YouTube and TikTok.
Meta challenged this narrow market definition by turning to an academic named John List who had recruited 6,000 study participants, paying them $4 for every hour they did not use either Facebook or Instagram. While use of Meta products fell by two-thirds, the favorite destination for these study participants was YouTube. The third was TikTok.
Platformer’s Casey Newton wrote that the judge did not rely on the study alone to make his ruling:
[Block]The judge noted that other, more natural experiments also lend credence to List’s findings. An outage of Meta apps in October 2021 led to a surge in usage for TikTok and YouTube, according to the company’s analysis. (“Snapchat—which the FTC insists is Meta’s closest competitor—fell far below, seeing its usage increase by less than a third of what TikTok enjoyed and less than half of what YouTube did,” Boasberg noted.)[End]
It seems reasonable to be even more generous than that. There are social networks embedded in LinkedIn, Telegram, Discord, X, Threads, and Reddit, to name a few.
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The original case was launched by the outgoing Trump administration, responding to Donald Trump’s ire over his belief that Facebook had thumbed the digital scales against his failed presidential reelection campaign.
For the incoming Biden administration and its chief ideological enforcer, Lina Khan, this legacy lawsuit was a godsend. She took the Trump administration’s folder and stuffed it full of biased, ideologically oriented claims that supported Khan’s approach of using antitrust as an ideological show trial of capitalism.
Now 29 attorneys general, many of them Republicans, are trying to revive this failed lawsuit in a bid to get even with Big Tech for Biden-era censorship and shadow banning. Lurking in the background is the close relationship between Texas AG Paxton and the trial bar.
As The Wall Street Journal editorial board put it, Paxton is “in bed with the trial bar, and it’s not a one-night stand.” He has approved 13 contingency-fee contracts with plaintiff firms, “hired to bring cases against businesses that often settle to avoid costly and long-term litigation.”
Paxton forced Meta to settle a lawsuit it described as being without merit. One plaintiff-law partner of Paxton’s AG office billed $97 million for litigating the claim. The Wall Street Journal reported that “Mr. Paxton and his plaintiff partners have gone after the owner of Tylenol on dubious claims of medical harm; Colgate-Palmolive for fluoride in toothpaste despite decades of its safe use; and Google for alleged violations of data privacy. He and his trial-bar pals are also investigating Mars for alleged “toxic dyes” in Skittles and M&M’s, and Kellogg’s for the same in Froot Loops.”
Speaking of Fruit Loops, there is something weird about Republicans like FTC Chairman Andrew Ferguson and now Republican Senate candidate Ken Paxton being so pliable that they can support lawsuits launched out of pique, supported by theories cobbled together by the doyenne of neo-Marxist critical legal studies, and subsidized in one way or another by left-wing trial lawyers who want to use successful businesses as piñatas.
Remember when far-out antitrust claims and close ties to the trial bar were almost exclusively the province of left-wing politicians?
Once again, this is the post-conservative Right in action.
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Robert H. Bork, Jr., is the president of the Antitrust Education Project and the co-author of the new book, The New Paradox: Antitrust and the Threat of Conservative Socialism.
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