If SCOTUS rules for Amex in a case on antitrust exemptions it will enable tech giants to engage in anti-competitive behavior if they can claim no harm to users
Big tech platforms — Amazon, Facebook, Google — control a large and growing share of our commerce and communications …
Context & Ripple Effects
Written weeks before the decision, this analysis framed the stakes of the Amex case for the tech industry: a ruling that antitrust law must weigh both sides of a 'two-sided' market would hand Amazon, Facebook, and Google a ready-made defense built on the absence of measurable consumer harm. The argument landed amid a broader push, documented in related coverage, to rethink decades-old antitrust doctrine around consumer protection rather than price alone (calls to rethink US antitrust laws).
Three months later the Court did rule for Amex, holding it did not violate antitrust law by discouraging merchants from promoting rival cards (the June 2018 AmEx ruling) — validating exactly the template this article warned about and setting the legal backdrop for the exclusionary-conduct cases against the big four platforms that followed.
First-order effects
- A ruling for Amex immediately raises the evidentiary bar for merchants, rivals, and enforcers suing Amazon, Facebook, or Google: they must prove net harm to users across both sides of a platform, not just injury to competitors.
- Platforms gain a doctrinal shield for conduct — steering, bundling, below-cost pricing on one side of the market — that previously looked exclusionary under traditional per-se or rule-of-reason analysis.
Second-order effects
- Cases built on exclusionary conduct rather than price effects, like those catalogued against Google, Facebook, and Amazon (the exclusionary-conduct record), become harder to win in court, pushing complainants toward regulatory and legislative venues instead.
- Because tech giants keep adding businesses and giving services away free — a fit problem existing antitrust models already struggle with (why tech giants don't fit existing antitrust models) — the consumer-welfare standard effectively prices their conduct as pro-competitive.
Third-order effects
- If courts apply the two-sided framework broadly, antitrust pressure on platforms migrates from litigation to Congress and agencies, accelerating the rethinking-of-the-law movement the Wired coverage identified.
- Over time, the combination of a plaintiff-unfriendly standard and free-to-user business models risks entrenching the very concentration of commerce and communications control the article describes, making structural remedies rather than conduct remedies the realistic endgame.
The trend: US antitrust is shifting from a consumer-price standard toward a structural debate over platform power, with the Amex ruling marking the point where courts narrowed the path and lawmakers became the remaining lever.