Paramount’s First Amendment Case for Why It Deserves Warner Bros.

All the talk about blocking Paramount’s $111 billion megadeal for Warner Bros. has mainly revolved around how the deal impacts competition and removes a buyer from the marketplace. The combined company would be the largest theatrical distributor in the country. The merger would also likely catapult the studio into the top three streaming platforms by subscriber count.

But it’s the news side of the equation that’s also at play when it comes to at least 10 states’ effort to halt David Ellison’s Hollywood advance in court. The argument goes something like this: Paramount’s editorial independence has been deeply compromised by Donald Trump, whose White House holds the keys for regulatory approval of the deal, and the studio is committed to reshaping the news landscape to his liking.

Indeed, consumers challenging the merger have claimed that it will further erode investigative rigor and viewpoint diversity in the market for national TV news (read: more conservative-leaning programming). They’ve pointed to CBS News, producer of 60 Minutes, and CNN, America’s first and longest-running 24-hour cable news network, being brought under a single owner eager to cater to the administration.

To that, Paramount has invoked First Amendment protections, arguing that it would be unconstitutional to block a merger based on speculation around how it would exercise editorial control. It’s not exactly a novel argument but one that renews the discussion around whether antitrust laws, which have traditionally focused on economic competition and consumer prices, should account for more abstract harms, in this case whether news fosters to a wide enough range of ideologies.

“It would vastly expand the antitrust laws and trample on companies’ First Amendment freedoms for courts to consider in a Clayton Act challenge whether a merger adequately preserves certain viewpoints and to treat alleged changes in viewpoint, editorial judgment, or political perspective as cognizable antitrust harm,” wrote Jeffrey Kessler, lead lawyer for Paramount, in a bid to dismiss the case filed on June 3.

The argument was raised in response to a lawsuit filed by consumers in April challenging Paramount’s proposed acquisition of Warner Bros. Discovery, the opening legal salvo over a merger that will reshape Hollywood. They seek a preliminary injunction, alleging the deal will substantially reduce competition in streaming, theatrical distribution and news.

At the same time, a coalition of states led by California is preparing a lawsuit to block the deal that’s expected to be filed within a month. New York, Colorado, Oregon, Nevada, Washington, Connecticut and Tennessee are among the several states in talks to join, a source familiar with the situation tells The Hollywood Reporter.

Consumers and state attorneys general are among several groups, which also include the Justice Department, the FCC and the European Union, that could pose an obstacle to consummating the merger. If the states sue, they are likely to argue that the national TV news market is relevant to the case. Expect Paramount’s editorial independence to come into play. “We’re looking at what’s happening with CBS right now,” an insider says. “This is going to impact that more with CNN.”

Paramount is pushing to close the merger in July, thanks to a series of savvy legal moves shepherded by its chief legal officer, Makan Delrahim. These include filing the paperwork for the Justice Department to bless the deal in December, even as Netflix appeared to come out on top of the bidding war. That puts state attorneys general contemplating a lawsuit on the clock.

They can sue after the deal closes, but courts have historically been much more open to blocking a merger than unwinding one. There are also the practical realities of decoupling two companies once they start to combine staff and operations. In a lawsuit from DirecTV challenging Nexstar’s bid to acquire Tegna, the TV giant has taken the position that it can’t fully comply with a court order halting the transaction because of “actions already completed at closing and legal obligations that cannot be reversed.”

For the state attorneys general, a preliminary injunction will be priority No. 1. The case against the merger over streaming and theatrical distribution is straightforward: The tie-up will eliminate a top-five studio in both areas. The argument over the national TV news market? Less so.

By Paramount’s thinking, the issue doesn’t belong in the realm of antitrust. Blocking a merger based on potential interference to newsroom decision-making, the studio warns, could allow courts to start regulating editorial outcomes in violation of the First Amendment. It’s a clever bit of legal jockeying, reframing the TV news monopolization claim as an “abstract political injury.” 

The Supreme Court largely rejected the idea that news monopolization justifies government intervention to compel viewpoint diversity in 1970 in Miami Herald v. Tonillo. That case didn’t raise antitrust claims but also implicated an alleged media monopoly. Pat Tornillo, a candidate for the Florida House of Representatives, sued the newspaper under the state’s right to reply statute after it refused to offer him space to respond to an endorsement of his opponent. The Miami Herald maintained that the law violated the First Amendment. The justices ultimately agreed, striking down the Florida law in what’s become crucial case law in disputes over government efforts to control editorial independence at newspapers.

Depending on who you ask, you’ll get a different answer to the question of whether antitrust laws should be interpreted to account for a value like viewpoint diversity. The consumer welfare standard — the idea that antitrust policy was built to protect economic competition in the form of lower prices, more output and greater innovation — has dominated courts’ thinking for decades. It still does. But the intellectual movement sometimes called New Brandeisianism has pushed for a sweeping reimagining of anti-monopoly laws. Among its core premises is that antitrust policy should be interpreted to account for corporate consolidation that results in the gatekeeping of ideas.

The Justice Department under Trump has mostly pushed back on this philosophy but is now arguing that antitrust laws should be considered when large news organizations conspire to block competing viewpoints — a position that clashes with the one Paramount has taken in its defense of the merger.

“Individual liberty—and consumer welfare—benefit greatly from viewpoint competition in news markets and can suffer when that competition is reduced,” a DOJ lawyer wrote in a case in which the government wasn’t a party but weighed in to advise the court on the legal issue. “News consumers desire and demand diverse perspectives. Americans therefore vitally depend on viewpoint competition in the marketplace of ideas to limit the abuse of market power and ensure the free flow of information in our democracy.”

Paramount could test its defense of the merger as early as next month when consumers’ bid for a preliminary injunction is considered. Don’t be surprised to hear skepticism from the court. 

This story appeared in the June 10 issue of The Hollywood Reporter magazine. Click here to subscribe.