Contrary to the First Amendment, the antitrust laws often impose prior restraints on speech. Consider this interview in today’s Wall Street Journal with Princeton University President Shirley Tilghman:
WSJ: Princeton and other selective schools have been criticized for accepting many students under early-admission programs, which tend to attract affluent students. Why not have one admission deadline?
Ms. Tilghman: If all our peers were to go to April admission, I would be very comfortable with that. It is very difficult for a single university to abandon early admission.
WSJ: Some schools have asked the Antitrust Division of the Justice Department whether they could agree to eliminate the early-decision programs as a group.
Ms. Tilghman: We were told that we could not have that discussion.
Indeed, if Tilghman and her peers had that discussion, the DOJ could charge them as criminals and imprison them for three years. Consider the logic here. It’s not illegal for selective schools to maintain identical early-admission policies. Antitrust regulators call this “conscious parallelism.” Only if the schools openly discuss changes to their admissions policies is it considered illegal “cartel” activity, irrespective of the institutional benefits. Even if the schools independently change their policies, the DOJ has said it may “infer” collusion if it merely suspects there were discussions between market participants.