Civil Liberties and Competition Policy: A Personal Essay Dedicated to John J. Flynn

• Published date: 01 December 2011
• DOI: 10.1177/0003603X1105600403
• Date: 01 December 2011
• Author: Albert A. Foer
• Subject Matter: Article

Civil liberties and competition policy: A

personal essay dedicated to John J. Flynn

BYALBERT A. FOER*

Competition policy, comprising statutory and regulatory initiatives

such as antitrust and sectoral regulation, is capable of both

supporting and undermining rights that are protected by the

Constitution. This essay is dedicated to Professor John J. Flynn, who

was particularly concerned with the ways in which both

governmental and private power can stifle individual human needs.

The essay provides observations on the relationship between civil

liberties and competition policy in a variety of contexts, particularly

focusing on commercial speech. It argues that civil liberties and

competitive markets are generally consistent and even mutually

supportive, but that the shared underlying value of choice is

endangered where there is a high level of market concentration.

KEY WORDS: Civil liberties, First Amendment, commercial speech, Noerr-

Pennington doctrine, media concentration.

Friedrich von Hayek’s Road to Serfdom can be built and paved by the

centralized planning of a private corporation dominating a technology

basic to the economy and not subject to the legal constraints of a competi-

tive process, just as it can by government centralized planning unrespon-

sive to individual human needs and creativity sorted out by a free and

competitive market wherever possible.1

THE ANTITRUST BULLETIN:Vol. 56, No. 4/Winter 2011 :731

ATB Winter 2011 Foer

January 06, 2012

* President, American Antitrust Institute.

1John J. Flynn, Standard Oil and Microsoft—Intriguing Parallels or

Limping Analogies? 46 ANTITRUST BULL. 645, 733 (2001).

© 2011 by Federal Legal Publications, Inc.

There is often a lot packed into one of John Flynn’s sentences.

Here we find: (1) a starting point of “individual human needs

and creativity”; (2) John’s citation to F.A. von Hayek, not neces-

sarily a modern era political liberal’s favorite economist, which

reflects John’s broad-minded willingness to seek wisdom wher-

ever it may be found; (3) the equation of public and private

“centralized planning” as comparable problems worthy of

deep concern; and (4) the important role of “a competitive

process” that provides for “a free and competitive market

wherever possible.”2

I will very loosely build this essay around these points in

order to explore aspects of the relationship between civil liber-

ties and the politico-economic discipline of competition policy.3

I. POLITICAL ECONOMY: LINKING INDIVIDUAL HUMAN

NEEDS AND A SYSTEM BASED ON CHOICE

I begin with some fairly abstract observations about civil

liberties and competition policy. The starting point is to recog-

nize that antitrust and competition policy are not merely about

economic theory but political philosophy,4and we must there-

732 :THE ANTITRUST BULLETIN:Vol. 56, No. 4/Winter 2011

2I remember John Flynn as a liberal small-d democrat, like myself. I

wish I could better recall the conversations we had when he was an outside

consultant to the FTC in the mid-1970s, while I was a young attorney running

a recently invented “skunk works” (the Office of Special Projects, long

defunct) within the Bureau of Competition. John helped us think about the

purposes of the antitrust laws in those days, and today’s American Antitrust

Institute is no more than an elaboration of the kinds of things we were think-

ing about thirty-five years ago. But I digress . . . .

3“Competition policy” comprises the full range of governmental poli-

cies that affect the way competition operates within and upon the economy. It

can include sectoral regulations, tax policies, capital market policies, intellec-

tual property and trade, and, of course, antitrust. “Antitrust” relates specifi-

cally to several statutes—the Sherman Act, the Clayton Act, and the Federal

Trade Commission Act—that impose sanctions on specific types of market-

place behavior, usually after the fact.

4See John J. Flynn, Antitrust Protection of the Consumer: Myth or Reality?,

13 FORUM 939, 939–40 (1977–78) (“The ideology of antitrust is premised upon

economic, political and social value judgments—judgments which have

ATB Winter 2011 Foer

January 06, 2012

fore face up to rather fundamental questions about ends before

focusing narrowly on means, such as the role of markets and

their proper regulation. Because fundamental questions are

answered differently by different people and different sover-

eign communities, it follows that cultures and traditions will

play a role in shaping answers and that an important choice

must be made between the adherence to a unitary system of

analysis or to one that tolerates different answers to fundamen-

tal questions.5This holds true not only on an international level

but also within single jurisdictions such as the United States.

The high value we place on individual human needs and cre-

ativity, as emphasized by John, is caused either by the selection

of tolerance, an essential ingredient of civil liberties thought, or

by a cultural predilection for the value of individual human

needs and creativity. The direction of causation is unclear and

unnecessary for us to unravel. The concept of individual

human needs and creativity depends fundamentally upon the

availability of choice.6Without the ability to choose among

alternatives, one lacks leverage and, lacking leverage, one can-

not exercise autonomous influence over the ordering of one’s

CIVIL LIBERTIES :733

become assumptions about what motivates human behavior, what is of value

to our society, and what constitutes harm or benefit to the values perceived to

the firms in the marketplace and to the consumers who are being served.”).

5Sir Isaiah Berlin influences my thinking in his defense of pluralism,

“the notion that there is more than one answer to a question,” in contrast to

monism, “the ancient belief that there is a single harmony of truths into

which everything, if it is genuine, must fit.” Isaiah Berlin, My Intellectual Path,

in THE POWER OF IDEAS 14 (Henry Hardy ed., 1998). See generally ISAIAH

BERLIN, THE PROPER STUDY OF MANKIND: ANANTHOLOGY OF ESSAYS 10 (Farrar,

Straus and Giroux ed., 1998) (“Both liberty and equality are among the pri-

mary goals pursued by human beings through many centuries, but total lib-

erty for wolves is death to the lambs, total liberty of the powerful, the gifted,

is not compatible with the rights to a decent existence of the weak and the

less gifted.”).

6See John J. Flynn & Piero Ruffinengo, Distributive Justice: Some Institu-

tional Implications of Rawls’ A Theory of Justice, 1975 UTAH L. REV. 123, 156

(1975) (“Where the unchecked growth of concentrated economic power con-

verts the economy from one of free choice to dictated choice, individual

mobility, freedom of choice, and individual liberty are greatly lessened.”).

ATB Winter 2011 Foer

January 06, 2012