In a disturbing (if unsurprising) trend, Republican FCC and FTC commissioners are deliberately misusing “free speech” rhetoric in an Orwellian attempt to justify government intervention to control and suppress online speech.
Last week, FCC Commissioner Brendan Carr pushed censorial policies in the name of “free speech.” This week, GOP FTC Commissioners Melissa Holyoak and Andrew Ferguson followed the same playbook. Of course, the context here is that Holyoak and Ferguson are fighting to get into Trump’s good graces to be named FTC chair, and he’s apparently worried that the two of them will be “soft” on his “big tech” enemies.
That resulted in them hijacking an unrelated enforcement action against e-commerce site GOAT to attack social media content moderation and advertiser boycotts.
GOAT is kind of like an eBay for mostly sneakers and some other sports apparel. But the FTC went after it for being misleading about both its shipping times and its claims of providing buyer protection services.
This seems like a fairly straightforward FTC case involving violations for unfair or deceptive practices. But for whatever reason (okay, okay, we know why) the Republican Commissioners decided to use this otherwise unremarkable case to go nuts about “online censorship” and (I shit you not) the unwillingness of some companies to advertise on ExTwitter.
While GOAT’s practices were problematic, they had nothing to do with the content moderation policies of social media platforms that the commissioners attacked in their statements. Indeed, they had nothing to do with third-party speech at all.
Commissioner Melissa Holyoak agreed with the FTC’s actions against GOAT, but then pivoted in her concurring statement to argue that the FTC should use the very same powers to go after social media companies for alleged unfair treatment of users in how they moderate:
This case is a good example of the Commission’s robust enforcement to protect consumers, and how we should consider and appropriately use every tool that Congress has given to us. This includes using our existing consumer protection authorities—consistent with the Commission’s constitutional and statutory authority—in new or emerging areas. For example, we must better understand how platforms enforce their terms of service to deny access or services to users or moderate speech about controversial topics. And the settlement with GOAT underscores the existing legal authority the Commission has to prosecute how platforms enforce their terms of service. Platforms employ their own internal procedures when they decide to terminate or deny access to users—not unlike the failed internal procedures of GOAT. A platform’s internal procedures can also be a black box, failing to provide users with adequate information about alleged violations of the terms of service, the platform’s determination, and the user’s purported “options” to challenge or appeal those decisions. Such actions have serious consequences for consumers, and in some cases, may be contrary to consumers’ reasonable expectations and constitute an unfair practice. It is critical to do more to understand the role that platforms play in controlling access to the digital commons. And a comprehensive approach to behavioral remedies—using our consumer protection and antitrust authorities—can reduce big tech’s ability to unlawfully remove Americans off their platforms.
Almost everything about this is nonsense. First, every single terms of service on these kinds of platforms includes some variation of the line saying “and we can kick you off our platform for any reason whatsoever.” Because they can. With very few restrictions, private businesses have the right to refuse service to anyone, and that’s especially true in the speech context, where the First Amendment’s rights of association include the right not to associate with anyone’s speech.
That is simply categorically different than an e-commerce company making direct promises to users about when it will ship things and what kind of buyer protection is provided.
Holyoak claims that this “can reduce big tech’s ability to unlawfully remove Americans off their platforms,” but leaves out the fact that it’s not unlawful at all. Hell, the Supreme Court itself just explained this in the Moody ruling, making it clear that Florida and Texas can’t pass laws that tell social media companies how to moderate. Is Commissioner Holyoak unaware of what the Supreme Court just said mere months ago?
At bottom, Texas’s law requires the platforms to carry and promote user speech that they would rather discard or downplay. The platforms object that the law thus forces them to alter the content of their expression—a particular edited compilation of third-party speech. See Brief for NetChoice in No. 22–555, pp. 18–34. That controversy sounds a familiar note. We have repeatedly faced the question whether ordering a party to provide a forum for someone else’s views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt. So too we have held, when applying that principle, that expressive activity includes presenting a curated compilation of speech originally created by others.
Or, even more directly:
But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. The regulations in Tornillo, PG&E, and Hurley all were thought to promote greater diversity of expression. See supra, at 14–16. They also were thought to counteract advantages some private parties possessed in controlling “enviable vehicle[s]” for speech. Hurley, 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of the then-current media environment—in particular, the disproportionate “influen[ce]” of a few speakers—similar to one heard today (except about different entities). 418 U. S., at 249; see id., at 248–254; supra, at 14–15. It made no difference. However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.
So the entire premise from the Commissioner is wrong.
But Commissioner Andrew Ferguson decided to take up the concept that Holyoak suggested and take it way further. Way, way, way further. His concurring statement gets pretty stupid pretty quickly.
We should address not just censorious conduct specifically, but also investigate the structural issues that may have given these platforms their power over Americans’ lives and speech in the first place. In particular, we must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly. We must prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.
First off, the pet peeve I mention all too often. The word you mean is censorial, not censorious. You’re using the wrong fucking word.
But more importantly, what the actual fuck? Commissioner Ferguson is flat-out claiming that the FTC’s authority includes going after “advertiser boycotts” (something that has been held to be First Amendment protected expression). The only instances where that’s not the case are ones where boycotts are done for anti-competitive purposes.
Commissioner Ferguson, companies deciding that they don’t want to be associated with crypto scammers and literal neo-Nazis is not that.
Similarly, the line “unlawfully limiting Americans’ ability to exchange ideas freely and openly” is again utter fucking nonsense. Can we send these jackasses to First Amendment 101? Private platforms have a First Amendment right to moderate how they see fit, as the Supreme Court said just a few months ago.
But Ferguson isn’t done yet with the crazy.
Addressing potential structural problems is necessary even if the Commission successfully enforces the platforms’ terms of service. Suppose that, in response to Commission action, the platforms honestly disclose their content policies and comply with them. Consumers could then choose to use platforms that provided free-speech-respecting products rather than those that do not. This would be an improvement over the status quo. But the choice would be real only if there are suitable free-speech-respecting substitutes to the censorious platforms. X right now is such a platform. But that is a recent phenomenon; X was once as censorious as the rest. Its current turn toward free expression is due only to its new owner’s unusually firm commitment to free and open debate. Other online platforms remain far more censorious. Moreover, the major social media platforms may not necessarily be suitable substitutes for each other based on their characteristics and uses. They appear to occupy several unique niches, and a creator banned from one platform cannot count on earning a living by posting the same content on another platform.
Again, you dope, censorious does not mean what you think it means. I am being censorious here, in that I am being critical. It has nothing to do with the suppression of speech.
Second, what the actual fuck? No, X is not “free speech respecting.” At all. It has banned journalists for merely mentioning a name Elon disliked. It went way further than old Twitter did in banning a reporter and any mention of the JD Vance dossier that was leaked. It has declared that the term “cisgender” is an offensive slur that violates its rules. Elon recently admitted that he openly is downgrading links. There are many reports that if you mention competitor apps, those posts are hidden from the algorithm, something he appears to have done repeatedly whenever another site gets press attention. After getting into a fight with “Twitter Files” reporter Matt Taibbi, at one point Musk made it impossible to find Taibbi’s tweets through search. At one point he completely hid an anti-GOP ad that was getting attention. There are tons of reports of users being “shadowbanned,” and that’s using the misleading, but colloquial definition of deprioritizing the algorithmic reach of content, which Musk claimed was so pernicious it was why he had to buy Twitter — only to almost immediately embrace it as his preferred policy, including making sure to shadowban accounts he didn’t like.
I could go on. The idea that ExTwitter is somehow more supportive of free speech than its predecessor company is only true in the sense that Musk is more willing to allow hate speech on the platform. In so many other ways it is not just more willing to suppress speech, it’s much more arbitrary in how it’s done.
Claiming otherwise, as Commissioner Ferguson does here, suggests he’s ignorant, a fool, or a liar. Not sure which would be worst. Anyone who understands free speech knows full well that Elon Musk is not a supporter of free speech.
Also, even if he were correct, nothing here makes sense. Ferguson is effectively claiming that there need to be multiple social media platforms that all have the same policies Elon prefers on speech to be “suitable substitutes.” But that’s insane. Do there need to be multiple newspapers with identical editorial policies for there to be competition? Of course not. The differentiation in editorial policies is part of the competition itself.
Indeed, that’s exactly what former Rep. Chris Cox and current Senator Ron Wyden talked about in explaining why Section 230 was written, to encourage different online communities to offer up differentiated rules to allow for a variety of communities, so people could find which ones they wanted to participate in. As they noted, requiring multiple sites to all have the same rules is “the opposite of true diversity.”
Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.
The idea that the FTC has the authority and/or power to force every social media company to moderate with the same rules as ExTwitter is so batshit crazy that it makes you question how someone who thinks that should ever have a job at the FTC let alone be a Commissioner.
From there, Commissioner Ferguson presents a litany of conspiracy theories, half-truths and flat-out lies. He claims that because platforms implemented their own rules to try to decrease harms from misinformation, it proves that even if platforms all have similar rules that might still violate the law (he’s wrong). But even more ridiculous is that he presents this as proof:
And this phenomenon was never more obvious than in 2020, when major Big Tech platforms simultaneously banned reporting on, and discussion of, the Hunter Biden laptop story.
That entire statement is false. Every single bit of it. There is a footnote, which cites only Commissioner Ferguson’s own statement in an earlier FTC effort, which also doesn’t say what he says here.
We’ve covered the reality of the Hunter Biden laptop story before. It is not at all true that “BigTech platforms simultaneously banned reporting on, and discussion of” the laptop. Literally none of them did. Twitter definitely went the farthest, and it didn’t do any of what Ferguson says here. It banned only the sharing of the link, but allowed all other discussion (of which there was plenty). It also allowed other reporting on the story. And, facing a ton of (correct!) criticism over the block of that one NY Post link, Twitter reversed course the very next day.
Facebook never banned any reporting or discussion of the story at all. It also didn’t ban any links to the story at all. For a short while, it put a flag on the story such that the link would not trend on the site until they had sufficient information to suggest that the story was legit.
I am unaware of any other site doing anything at all with the link. Google has flatly denied ever taking any action with regards to the link.
So why is Ferguson making up a thing that didn’t happen? Why is he claiming that they all “simultaneously” did things that none of them did? Why is this man entrusted with an FTC commissionership?
And the craziest thing here, as I noted just above, is that ELON MUSK DID THE EXACT SAME THING, BUT EVEN MORE DRACONIAN when he banned all links to the story about the JD Vance dossier. But, of course, because it was in the other direction, everyone just ignores it.
Think about what kind of world we’re living in here.
Commissioner Ferguson pretends that what Twitter didn’t do (but which Elon did do) is somehow evidence of harms of other platforms, and argues that they should all be forced, by the power of the FTC, to follow Musk’s policies on other sites, even though Musk’s policies way more closely resemble the thing he’s complaining about… which no other site (other than Elon’s X) actually did.
This is through the looking glass fantasy world bullshit.
He then cites the Murthy v. Missouri case, hilariously admitting that the Supreme Court found no evidence of coercion to suppress speech, but then saying that discovery proved that it did happen. Literally the thing that the Supreme Court said didn’t happen, Ferguson says did happen. The fact that the Supreme Court explicitly found no evidence of government coercion to suppress speech doesn’t just undermine Ferguson’s argument, it demolishes it.
But in the modern MAGA GOP, if you don’t like the facts, you just make up new ones.
He then returns to the ridiculous idea that advertisers choosing in a free market not to advertise on a platform that fails to keep their brands safe and is increasingly just full of bots and spam… is somehow illegal:
Shortly after Twitter (now X) was purchased by a free-speech champion, major advertisers raced for the door and refused to advertise on X. Concerted refusals to deal—also known as group boycotts—are illegal under the Sherman Act. According to X, this mass advertiser exodus was concerted, and was facilitated by the World Federation of Advertisers’ Global Alliance for Responsible Media (GARM) initiative. GARM described itself as a coalition of “marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”
Ferguson can’t even stop there. He picks up on the other ridiculous conspiracy theory we’ve debunked multiple times, that NewsGuard (again, a site created by the very conservative Republican former publishers of the Wall Street Journal) is somehow engaged in “censorship” by… giving its opinion on how trustworthy news sites are.
NewsGuard, for example, “is a domestic for-profit business that rates the credibility of news and information outlets and tells readers and advertisers which outlets they can trust.”16 Like GARM, NewsGuard claims to promote “brand safety” for advertisers. “NewsGuard leverages ‘human intelligence’ (journalists on staff) to dictate an outlet’s trustworthiness. Those deemed ‘untrustworthy’ are then compiled into ‘exclusion lists,’ with ‘trustworthy’ sites on inclusion lists,’ which are licensed to advertisers to instruct their ad agencies and ad-tech partners to keep their programmatic ads off/on these sites.” If a website gets a poor rating on NewsGuard’s “nutrition label,” it can choke off the advertising dollars that are the lifeblood for many websites— including platforms on which millions of Americans every day speak their minds. NewsGuard “goes to great lengths to create the appearance of nonpartisanship and objectivity,” but it seems to give a free pass to deceptive and biased news coverage by major left-leaning outlets. NewsGuard is, of course, free to rate websites by whatever metric it wants. But the antitrust laws do not permit third parties to facilitate group boycotts among competitors.
Just last week, when the FCC’s Brendan Carr went after NewsGuard, I went into detail on how ridiculous it was, so I need not do so again here. But just think of what he’s saying here: that “more speech” in the marketplace of ideas could be considered an illegal boycott if multiple companies rely on that opinion to choose to no longer do business with a company.
It is difficult to express how detached from reality this is.
This is the exact opposite of supporting “free speech.” This is literally saying that if a private entity shares its opinion, and multiple third parties agree with that opinion and choose not to support a business the GOP likes because of that opinion, the speech can be deemed an illegal boycott.
The only purpose of making such an argument is to create chilling effects for criticism of any entities Ferguson and the Trumpist GOP supports.
This is the opposite of free speech and free markets. This is authoritarian censorial (not censorious) bullshit.
