NewsGuard, a media organization that rates the credibility and transparency of media organizations, is suing the Federal Trade Commission (FTC). It alleges the agency has violated its First Amendment rights.
The violations stem from the FTC’s investigation of whether NewsGuard’s work with advertising agencies to boycott certain news sites violated antitrust laws. The FTC claims that NewsGuard’s ratings are biased against conservatives and that its work with advertising agencies is a conspiracy to silence conservative views. However, this claim is not supported by facts.
NewsGuard has consistently given high ratings to conservative and libertarian news sites like the Heritage Foundation’s Daily Signal, the Cato Institute, the Washington Free Beacon, and the Media Research Center.. But even if NewsGuard were biased against conservatives, the FTC’s lawsuit would not be justified.
Boycotts of organizations based on their political views is not an illegal conspiracy to restrain trade, but an activity protected by the First Amendment. Boycotts have a long history of being used by activists of all political persuasions, starting with the Boston Tea Party. Boycotts also played a major role in the civil rights and labor union movements.
Conservatives have also used boycotts. For example, social conservatives have boycotted businesses that sponsor television programs they find objectionable. Modernly, many companies have faced boycotts for pushing wokeness. NewsGuard’s First Amendment rights were upheld by the Supreme Court in the case of Moody v. NetChoice. In that case, which dealt with state laws regulating social media companies’ content moderation policies, the Court stated, “the Constitution protects the expression of groups like NewsGuard, which simply provides opinions on the credibility of content and information sources that other services may choose to adopt or ignore at their discretion.”
The last sentence highlighting that advertisers have the freedom to “accept or reject” NewsGuard’s recommendations shows the most serious flaw in the FTC’s case.
The FTC is accusing NewsGuard of trying to censor sites it deems not credible. However, censorship is the use of force to silence speech. As a private organization, NewsGuard has no power to force advertisers to accept its boycott recommendations. Rather, NewsGuard must convince advertisers to use their rankings to determine which news sites they will and will not do business with. By trying to use antitrust laws to stop NewsGuard from sharing its views on other news sources—Chair Ferguson is engaging in censorship. He is also setting a dangerous precedent that will no doubt be used against conservative groups next time a Democrat sits in the Oval Office and a progressive chairs the FTC.
NewsGuard’s complaint against the FTC states that the agency has “demanded all documents (memos, emails, texts, reporters’ notes, subscriber lists, analyses, financial reports, and more) that NewsGuard has created or received since its founding in 2018.” This suggests the agency is on a fishing expedition to find material to discredit NewsGuard—if not in the court of law—then in the court of public opinion.
The demand that NewsGuard turn over its subscriber lists is especially disturbing, as it could make advertisers reluctant to subscribe to NewsGuard for fear of angering federal regulatory agencies. Anonymous political speech has a long and distinguished place in American political history dating back to the anonymous pamphlets written in support of the American Revolution.
The Supreme Court upheld the right to anonymous speech in the case of NAACP v. Patterson where the NAACP fought to keep its membership list confidential from the segregationist Alabama state government. Justice Marshall Harlan, writing for the majority, said that “compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
Last year, the FTC’s investigation of progressive media watchdog group Media Matters was found unconstitutional, yet the agency is now pursuing a similar suit against NewsGuard. Hopefully, this new investigation will meet the same fate and Chair Ferguson will start acting like a constitutional conservative—not a Khanservative.
