Federal Trade Commission (FTC) Chair Andrew Ferguson’s first policy initiative since becoming Chair is a Request for Information (RFI). The RFI seeks “to better understand how technology platforms deny or degrade users' access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.” Specifically, Chair Ferguson is looking for evidence that big tech companies demonetize or ban users based on the users' activities—including those that take place outside the platform.
It is not surprising that Chair Ferguson’s first initiative concerns big tech censorship. After all, Chair Ferguson said if he was named Chair he would prioritize using antitrust policy against big tech companies who censor their users on their social media. Ferguson is correct that antitrust plays a role in social media censorship—but not in the way that he thinks. Biden Administration officials used the threat of antitrust prosecution as part of their efforts to “convince” social media companies to censor the users. The Biden officials who bullied these companies were violating the First Amendment every bit as much as if they were hacking the social media platforms and removing the posts themselves.
By threatening these social media companies with antitrust actions for not allowing their users to post certain news and opinions, Chair Ferguson is also violating the First Amendment. If Chair Ferguson launched an antitrust investigation into the New York Times because of their refusal to publish an opinion piece praising DOGE, no one would doubt that he was violating the First Amendment. The same principle applies to internet news sites and social media platforms.
Last July, the Supreme Court struck down laws in Texas and Florida restricting content moderation on social media. Writing for the majority, Justice Elena Kagan wrote that,“traditional publishers and editors…select and shape other parties' expression into their own curated speech products,” and “that does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment."
Chair Ferguson’s determination of whether social media companies have monopoly power that allows them to censor their users is the same type of conduct Justice Kagan identified as violating the First Amendment.
Using antitrust against social media companies because they exercised their First Amendment rights could also discourage development of new social media platforms. This is because potential investors may be scared off by the possibility that, if the site becomes successful while moderating content, it would attract the unwanted attention of the FTC. Ironically, the victims of this policy will be sites created for the explicit purpose of providing an alternative to those dissatisfied with big tech content moderation policies.
Another unintended consequence is that some sites won’t perform any content moderation, thus allowing them to become a forum for trolls, scammers, and Taylor Swift fans. Chairman Ferguson promised to reverse Lina Khan’s anti-business policies, while also continuing her war on big tech. His first two initiatives as Chair—keeping the 2023 revised merger guidelines that make Lina Khan-style "hipster antitrust” the law of the land and the RFI on big tech censorship—both focus on ways the FTC can use antitrust laws to “protect” free speech. This involves telling private companies which content moderation policies are acceptable, and which ones will cause Chair Ferguson to send the FTC’s regulators to make the companies an offer they can’t refuse.
Chair Ferguson can still reverse course by revoking the RFI and focusing on ensuring that private social media platforms are never again pressured by the government to censor their users. He can work with Congress to pass legislation prohibiting federal officials from encouraging private companies to censor their customers. Fortunately, such legislation has been introduced by Kentucky Senator Rand Paul. The bill prohibits federal employees or employees of federal contractors from taking actions to “convince” private companies to violate any American’s First Amendment rights. The bill provides penalties including fines, suspension, dismissal, and a ban on future federal employment for anyone who violates the act. Passage of this bill would achieve Chair Ferguson’s goal of protecting free speech online and is a good first step toward separating state and tech.
