A federal judge last week tossed an antitrust lawsuit filed against Facebook by the FTC and several states, pointing out that the plaintiffs had failed to do the one thing most central to an anti-trust case – demonstrate the defendant was a monopoly.

This was a major skirmish in what is developing into a full-blown war on “Big Tech.” It has become oddly fashionable in America to have disdain for anything “Big” – Big Pharma, Big Oil, Big Ag, Big Business; in fact, it has become de rigueur in PR circles to attach the prefix “Big” to anything at which you want opprobrium to flow. This plays to a quite natural, and quite American, sympathy for the underdog which, while not entirely unwholesome on an individual level, does not often translate to good economics or suitable public policy. The Edsel, we recall, was an underdog. So was New Coke in the 1980’s.

The use of the antitrust knout to flay big tech companies has met with a certain amount of bipartisan zeal. On the Congressional front, one finds the usual lineup of Democrats (for whom government is the only thing that ought to be big) joined by folks like Senator Josh Hawley (R-MO) in advancing bills that would, among other things, beef up the enforcement powers of the federal anti-trust agencies, make it illegal for major tech platforms to operate another line of business, and even outlaw mergers and acquisitions for any company with a market cap over $100 million.

Yes, you are hearing Milton Friedman weep from Heaven.

Meanwhile, a third antitrust lawsuit, led by a number of state attorney’s general including Colorado’s Phil Weiser, was filed against Google yesterday, all similar to the recently failed one against Facebook led by New York attorney general Letitia James. And if the decades-old interpretation of antitrust law holds, these lawsuits ought to fare no better.

Now, I have no truck in particular for the Facebooks of the world. I am as annoyed at their self-imposed censorship role, virtue-signaling, and thinly veiled disdain for what they hold as contrarian views as the next guy. But at the end of they day, they are private companies, that have done what they do well enough to become dominant in their field of endeavor, and if they don’t want to allow Donald Trump to post on their platform – or even, per impossible, yours truly – that may be at best preposterous, reprehensible even, but it’s their business. Certainly it is not the government’s. 

But the point of the anti-trust offensives has little to do with censorship in any case. The assertions are more in line with those proffered by Rep. David Cicilline (D, R.I.) and Lina Khan, the new young, very-progressive chair of the FTC, who made her name by writing at length about such things as the unchecked power of the biggest tech companies threatening economic fairness and even American democracy itself.

Few American legal minds have written as much on antitrust law as the late Robert Bork. He wrote, back in 1967 that “(antitrust) statutes can be legitimately interpreted only according to the canons of consumer welfare, defined as minimizing restrictions of output and permitting efficiency, however gained, to have it’s way.” He goes on to say that “no revision of antitrust should, as a question of legislative wisdom, depart from the consumer welfare premise.”

Where, exactly, is the consumer harm in Google doing its job better and more efficiently than its competitors? Transmogrifying antitrust law into a cudgel to protect smaller competitors from competition is not particularly in line with the principles of a free market.

Neither is using the law to prevent a giant company from acquiring businesses outside its usual domain. An economy is more competitive, someone once noticed, with a few large, diverse companies competing amongst one another in 1,000 markets, than with 1,000 smaller entities each monopolizing a single product.

This shift in antitrust thinking will have a chilling effect on the economy as a whole. If the complaint is simply that some businesses have become “too big,” and antitrust regulators are given the authority to prevent that, at what point does someone’s success story become “too big”? At what point is success to be righteously punished?

It is troubling to see Republicans like Ken Buck and Josh Hawley join in the crusade against big business and embrace the gestation of government intervention in the marketplace. There is of course a sporadic history of Republican flirtations with such interferences, and none have worked out any better than Democratic ones, from Nixon’s price controls, all the way back to Sen. Hawley’s namesakes alliance with a fellow named Smoot.