Key Points
The Federal Trade Commission (FTC), in February 2025, launched a request for information seeking public comment about how social media platforms’ “adverse actions” against users and user content may have been “made possible by a lack of competition” and the platforms’ “market dominance.”
The FTC’s use of antitrust law—real or threatened—to change platforms’ content-moderation decisions confronts important First Amendment principles about editorial discretion, compelled speech, manipulation of idea marketplaces, and jawboning.
The First Amendment hurdles weigh heavily against antitrust intervention, especially when coupled with President Donald Trump’s stated desire to shield platforms’ decision-making from government pressure and the independent business incentives that typically motivate platforms to moderate content.
Introduction
The Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) share responsibility for enforcing antitrust laws.1 The Federal Trade Commission Act vests the FTC with civil power over “unfair methods of competition in or affecting commerce.”2 The US Supreme Court, in turn, has ruled that the FTC has jurisdiction to decide that conduct violating the Sherman Act—an 1890 law barring agreements that unreasonably restrain trade—“may also be an unfair method of competition and hence constitute a violation of § 5 of the Federal Trade Commission Act.”3
Can the FTC use its antitrust authority to punish social media platforms for allegedly colluding or abusing their market power to adopt policies that ostensibly thwart robust competition of ideas by squelching certain content? Can the FTC deploy antitrust law to break up these platforms (a structural remedy) or, in exchange for not doing so, compel them to host users and content they otherwise would not (a behavioral remedy)? What First Amendment problems arise when the FTC uses its antitrust clout in this manner?4 These timely questions are immensely important; the question about First Amendment challenges underlies this report.
Shortly after Donald Trump retook the Oval Office, the FTC began seeking public input about social media platforms’ policies and practices affecting “users’ access to services based on the content of the users’ speech or their affiliations” and implicating users’ “ability to share their ideas or affiliations freely and openly.”5 Raising the specter that the commission would use the feedback to wield its antitrust authority against platforms’ content-moderation policies, the FTC questioned whether these policies stem “from a lack of competition or may have been the product of anti-competitive conduct.”6 An accompanying FTC press release proclaimed that
censorship by technology platforms is not just un-American, it is potentially illegal. Tech firms can employ confusing or unpredictable internal procedures that cut users off, sometimes with no ability (to) appeal the decision. Such actions taken by tech platforms may harm consumers, affect competition, may have resulted from a lack of competition, or may have been the product of anti-competitive conduct.7
The FTC’s request for information (RFI) is titled “Request for Public Comment Regarding Technology Platform Censorship,” which this report will call the Technology Platform Censorship RFI. An RFI is a public inquiry and information-gathering process that can identify possible enforcement targets and facilitate a formal investigation, rulemaking, or enforcement proceeding. Although an early step, the FTC’s RFI—with the condemnatory word “censorship” in its title—was a warning to platforms and possibly (as explained later) a jawboning attempt to pressure them to change their moderation practices to avoid formal, adverse antitrust consequences later.
The RFI posed questions suggesting that one of the commission’s antitrust theories is that platforms coordinated their content-moderation efforts to “achieve market dominance under permissive content policies, only to change policies after they had achieved market power.”8 The implication is that platforms’ market power caused them to shift toward speech-restrictive policies, abandoning permissive ones. As FTC Chairman Andrew Ferguson stated in March 2025, he is “looking for exercises of market power that might reveal themselves in censorship.”9
Additionally, the RFI sought information that would let the FTC leverage both its antitrust (competition) and consumer protection authority against platforms,10 stating that
FTC staff is interested in understanding how consumers have been harmed—including by potentially unfair or deceptive acts or practices, or potentially unfair methods of competition—by technology platforms that limit users’ ability to share their ideas or affiliations freely and openly.11
Furthermore, the RFI expressed concern about users’ ability to not only express their own views (their capacity to speak) but also consider others’ opinions (their capacity to receive speech). It noted that the platforms’ “potentially unlawful conduct affects not just any given speaker or potential speaker, but also consumers that would have otherwise received or had a higher likelihood of receiving the censored content.”12 This could mean the FTC will claim that promoting consumer welfare lets it make inherently subjective judgments about what constitutes a quality view or platform and allows it to intervene when it believes platforms—as products—deprive consumers of quality views and witnessing their competition.
The FTC had received 3,465 responses when the RFI’s comment period closed on May 21, 2025.13 Comments filed by think tanks, advocacy groups, and trade associations detailed significant First Amendment problems with the FTC using antitrust law to interfere with platforms’ content-moderation decisions. Some of these comments are featured in this report, which concentrates on First Amendment hurdles that antitrust actions—ones targeting platforms’ constitutionally protected content-moderation decisions—must clear if the commission pursues this regulatory path.
I initially explain that antitrust worries expressed in the Technology Platform Censorship RFI aren’t new; concerns among some Republicans have brewed for years. I also note that the DOJ voiced support in 2025 for using antitrust law in the adjacent, speech-based context of promoting “viewpoint competition in news markets.”14 The FTC and DOJ both seem primed to use antitrust law to tilt the mixture of ideas in speech marketplaces in the Trump administration’s desired direction.
Next, I provide a primer on the marketplace-of-ideas theory of free expression. I explain how the FTC, under Republican Chairman Ferguson’s leadership, frames its potential antitrust actions against platforms in terms of promoting consumer welfare via enhanced idea competition.15 This frame, however, is deceptive: It diverts attention from the FTC’s censorship efforts to control private entities’ constitutionally protected speech decisions.16 I also describe two fundamental problems with deploying antitrust law to regulate online speech marketplaces. Additionally, I explain that, although speech-based businesses are not immune from antitrust law, any use of it targeting content-moderation practices must overcome these businesses’ First Amendment right against government censorship.
Moving to the report’s centerpiece, I examine critical First Amendment problems with using antitrust law to dictate social media platforms’ content-moderation practices. I begin with the fundamental constitutional principle that the First Amendment protects private entities—social media platforms included—from censorship by government agencies, including the FTC. I then describe four important First Amendment principles that forcefully push back against using antitrust law in this context. In discussing these principles, I explore some of the arguments prominent organizations raised in response to the FTC’s RFI. Additionally, I describe how President Trump has unambiguously expressed disdain for governmental jawboning of platforms to moderate content in ways the government desires. Ironically, the Technology Platform Censorship RFI itself seems like an early jawboning effort to coerce platforms to change their content-moderation practices in a Trump-friendly fashion.
I conclude by asserting that the FTC should refrain from deploying antitrust law to meddle with platforms’ First Amendment–protected decisions to moderate content. Even if the FTC’s antitrust efforts under the Trump administration somehow proved to be constitutional after what surely would be protracted litigation, similar antitrust tactics could be turned against conservatives when a Democrat becomes president. Colloquially put, what goes around comes around. The better course is to let private businesses—not government agencies—decide how to moderate content.
Antitrust Concerns with Platforms’ Content-Moderation Decisions: Long Simmering Contentions Rise to the Fore
Antitrust concerns expressed in the Technology Platform Censorship RFI didn’t come out of left field. The RFI simply brought into high relief “a years-long, escalating series of claims that digital platforms
systematically censor conservative political speech.”17 As Ben Sperry of the International Center for Law & Economics (ICL&E) wrote in 2021, “Many conservatives . . . see multiple platforms all engaging in very similar content-moderation policies when it comes to certain touchpoint issues, and thus allege widespread anti-conservative bias and collusion.”18 Sperry points out, however, that “those claims (don’t) have much factual support, but more importantly, the similarity of content-moderation standards may simply be common responses to similar demand structures—not some nefarious and conspiratorial plot.”19 Nonetheless, the theory that platforms collude to stifle conservative opinions gained traction among Republicans, including those at the FTC.
When President Trump retook the Oval Office on January 20, 2025, he officially designated Ferguson to chair the FTC.20 About six weeks earlier, when announcing his intention to elevate Ferguson to chairman from his then-position as one of two Republican FTC commissioners, President Trump proclaimed that “Andrew has a proven record of standing up to Big Tech censorship, and protecting Freedom of Speech in our Great Country.”21
That assertion reflects a concurrence Ferguson filed in an FTC matter on December 2, 2024.22 He asserted in Federal Trade Commission v. 1661 that the commission should use “all the tools” it possesses to not just address “censorious conduct” by social media platforms 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.23
Ferguson fretted about “the prospect of Big Tech censorship collusion” and whether “platforms colluded . . . to set shared censorship policies.”24 Such collusion, he wrote, “would be tantamount to an agreement not to compete on contract terms or product quality,”25 thereby raising antitrust concerns under the Sherman Act.26 Ferguson concluded his concurrence by asking the FTC “to investigate collusion that may suppress competition and, in doing so, suppress free speech online.”27 He wrote that, if such an investigation were to expose “anti-competitive cartels that facilitate or promote censorship, we ought to bust them up.”28 In sum, Ferguson speculated that successful platforms’ market power causes them to duplicitously unite and adopt similar content policies—ones discriminating against conservative views and speakers, thereby harming consumers’ (platform users’) ability to speak and receive all views and, in turn, weakening the overall quality of platforms as speech products.29
On December 10—eight days after Ferguson’s concurrence in Federal Trade Commission v. 1661 and in response to Trump’s announcement that Ferguson would be elevated to chairman—Ferguson pledged to rectify the censorship concerns. He proclaimed that “at the FTC, we will end Big Tech’s vendetta against competition and free speech.”30
Ferguson draws support for using antitrust law to manipulate speech marketplaces from Abigail Slater, who was confirmed on March 12, 2025, as assistant attorney general for the DOJ’s Antitrust Division.31 Slater asserted in July 2025 that
when companies abuse their market power to block out and deplatform independent voices and protect legacy media, they harm competition and threaten the free flow of information on which consumers depend. This Antitrust Division will always defend the principle that the antitrust laws protect free markets, including the marketplace of ideas.32
Slater’s remarks arose in conjunction with a statement of interest she submitted on behalf of the United States in a lawsuit filed by Robert F. Kennedy Jr.’s Children’s Health Defense (CHD) organization against several legacy news organizations, including the Associated Press (AP) and The Washington Post‘s publisher.33 The CHD’s complaint claims these organizations collaborated with leading social media platforms to form a “Trusted News Initiative” partnership that was designed to exclude as misinformation other publishers’ competing views regarding matters such as COVID-19 on platforms such as Facebook and X.34
Slater’s statement of interest asserts “that the Sherman Act protects all forms of competition, including competition in information quality.”35 It adds that “it is critical that the Sherman Act’s prohibitions apply fully when restraints of trade limit non-price features such as the type or quality of information that may compete in the marketplace for ideas.”36 In sum, the statement contends that “grave harm in modern digital markets” is unlawfully produced when “anti-competitive conduct . . . limits consumers’ access to diverse viewpoints.”37 The statement’s reference to “the marketplace for ideas” tees up for consideration a primer on that venerable free speech theory and how Ferguson cites it to support his antitrust positions targeting social media platforms.
The Marketplace of Ideas
The US Supreme Court has declared that “the First Amendment’s purpose (is) ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’”38 The marketplace-of-ideas theory of free expression was imported into First Amendment jurisprudence by Justice Oliver Wendell Holmes Jr. more than a century ago in Abrams v. United States.39 Rather than allowing the government to “sweep away all opposition” to “the expression of opinions” it disagrees with, Holmes asserted that
the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.40
In brief, the theory holds that the expression of all ideas should be protected, no matter how wrong, offensive, or disagreeable they initially may seem. Robust, unfettered competition among them will let society determine which are wisest and true.41 Even if people never agree on the “truth,” the process of constantly testing and refining conceptions of what is true is vital.42 Both the product (truth) and the process (challenging truths through vigorous debate) are thus hallmarks of the marketplace-of-ideas theory.
Chairman Ferguson often invokes the theory when describing platforms’ content-moderation practices and their purported anti-conservative biases. In an April 2025 speech, he stated,
It should be obvious . . . that if the social media space is highly concentrated, with incumbents facing little to no competition from rivals, it will be easier for platforms to engage in censorship—whether on their own initiative, in collusion with each other, or at the behest of left-wing public officials, regulators, advertisers, or other DNC (Democratic National Committee) interest groups. In other words, increased concentration can negatively impact the marketplace of ideas because it facilitates a variety of censorious practices; and censorious practices—whether carried out by state actors, private aggregations of power, or a combination of the two—(are) inimical to the free expression that makes our marketplace of ideas possible.43
In the same address, Ferguson suggested that not only are speakers harmed by such actions, but so are users who seek alternative views. Invoking the marketplace theory, he asserted,
When social media companies practice censorship, they inflict harm not just on those users whose opinions are excluded altogether or limited in dissemination, but also on any user who is attracted to the platform because it facilitates a genuine marketplace of ideas. To be sure, antitrust law cares about the mistreatment of the speaker, but it is no less concerned with the injury inflicted on the user who wishes to ingest ideas on a platform.44 (Emphasis in original.)
Ferguson and Slater apparently want to use antitrust law as a vehicle to control speech—to force platforms to expand idea competition in their online marketplaces—under the premise that platforms have colluded to exclude certain views, thereby depriving consumers of the robust competition of opinions the marketplace theory envisions. It is unclear, however, whether the FTC’s or DOJ’s preferred remedy is structural or behavioral. Regarding the former, would such actions entail breaking up platforms such as Facebook, Instagram, and X in the hope that new ones featuring different moderation standards will spring up and flourish? As for the latter option, would the government extract change-of-behavior promises from platforms that compel them to host more conservative views and ones Trump endorses?
Regardless of the remedial approach the government might embrace, Ferguson ignores a critical constitutional maxim regarding the relationship between the government and the marketplace of ideas. The US Supreme Court holds that “a central tenet of the First Amendment (is) that the government must remain neutral in the marketplace of ideas.”45 (Emphasis added.) As addressed later, this means that interventions to balance or adjust idea marketplaces in the government’s desired manner will fail judicial review.
Before detailing the First Amendment obstacles that antitrust interventions in privately run speech marketplaces must overcome, two macro-level difficulties with deploying antitrust law to regulate expressive marketplaces merit attention. First, as Lawrence J. Spiwak, president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies, recently wrote, “Ferguson is trying to use a statutory regime expressly designed to focus on economic conduct—i.e., the antitrust laws—to regulate the speech of private actors.”46 (Emphasis in original.) He adds that “under the plain reading of (federal antitrust) statutes, using the antitrust laws to govern private speech falls clearly outside of the DOJ’s and FTC’s statutory mandate.”47
This misapplication of antitrust laws means the FTC would encounter problems under the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo48 when stretching its statutory authority. As my American Enterprise Institute colleague Jim Harper encapsulated it, the Court in “Loper Bright restored courts’ authority to determine the law, as opposed to giving agencies the power to decide what their authorizing statutes mean.”49 Second, there’s a distinct disconnect between the First Amendment’s goals and those of antitrust law. Robert G. Picard, a senior research fellow at the Reuters Institute for the Study of Journalism at the University of Oxford, has explained that the First Amendment’s primary purpose
is to ensure that voices of citizens are not restrained by government, an essential requirement for democracy to function. Antitrust law and competition policy were established to protect markets from inappropriate private constraints and to promote competition. Their primary purposes are to halt actions that harm markets, competitors, and consumers. The First Amendment and antitrust law fundamentally address different concerns and challenges and differing sources of constraints. One is specifically concerned with expression. The other is not.50
Picard adds that “attempting to use antitrust law to address the marketplace of ideas presents enormous challenges because (the government) must deal with a market unlike commercial markets. There are no known and accepted tools and means of analysis for measuring the ‘idea market.’”51
To be clear, the Supreme Court has concluded that antitrust law can be used against news enterprises whose business practices restrain “trade in news.”52 The Court in 1945 ruled against the AP for adopting bylaws that banned AP members from selling news to nonmembers and imposed restrictive conditions on nonmember news competitors gaining AP membership.53 The Court explained that “the First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity” from antitrust law.54
Antitrust law, however, does “not shield regulation aimed at expressive decisions from First Amendment scrutiny.”55 In comments filed with the FTC, the ICL&E contends that “the government may regulate economic activity, but it may not infringe the First Amendment in doing so.”56 TechFreedom’s RFI comments echo this sentiment: “The Commission can regulate business practices, but if those regulations implicate platforms’ editorial judgments—their protected speech—the regulations will be subject to First Amendment scrutiny.”57 The next section describes significant First Amendment principles such scrutiny would involve.
First Amendment Principles That Thwart Antitrust Law Interference with Platforms’ Content Decisions
The FTC and the Trump administration frame the content-moderation decisions they deride in terms of censorship that violates citizens’ constitutional rights of free expression. Consider this statement by Vice President JD Vance in January 2025: Technology companies “can either respect America’s constitutional rights, they can stop engaging in censorship, and if they don’t, you can be absolutely sure that Donald Trump’s leadership is not going to look too kindly on them.”58 Similarly, Ferguson has railed against “pervasive political censorship . . . carried out by (social media) companies under the guise of ‘content moderation.’”59 The title of the FTC’s RFI even features the word “censorship”: “Request for Public Comment Regarding Technology Platform Censorship.”60
The irony here is obvious. Professors Aaron Edlin and Carl Shapiro explain:
Ferguson asserts that he is a champion of free speech, but his actions as FTC chair show the opposite. He is using the FTC’s powers to discourage or prevent social media platforms from freely choosing which content to include, feature, promote, or monetize. Those choices are an integral part of how social media platforms compete. They are also a form of speech.61
In other words, the government itself—via antitrust law—seeks to censor speech by controlling private actors’ decisions about what messages are suitable for publication and how they are organized. Using antitrust law to compel changes in platforms’ content-moderation practices runs headlong into four First Amendment principles that pose formidable obstacles the government must overcome. Collectively, these high constitutional hurdles strongly militate against the government using antitrust law to manipulate platforms’ speech marketplaces.
Next, I provide a foundation for understanding platforms’ constitutional right against government censorship. I then delve into four constitutional principles—ones about editorial discretion, compelled speech, manipulation of idea marketplaces, and jawboning—that provide a barricade against antitrust interference with platforms’ content policies and decisions.
First Amendment Fundamentals
The linchpin for understanding why the First Amendment shelters platforms’ decisions about speech from government interference is found in the opening sentence of the Supreme Court’s 2019 ruling in Manhattan Community Access Corp. v. Halleck: “The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.”62 (Emphasis added.) Because the FTC and DOJ are governmental actors, the First Amendment constrains them. Conversely, platforms such as Discord, Facebook, Instagram, Reddit, Snapchat, and YouTube are private actors, so the First Amendment protects them from censorship by government actors, including the FTC and DOJ.
In delivering the Court’s Halleck opinion, Justice Brett Kavanaugh offered another tenet regarding expressive rights:
The text and original meaning of (the First and Fourteenth) Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.63 (Emphasis in original.)
A platform—as a private entity—thus doesn’t violate the First Amendment when it bans a user or a post or deprioritizes a post’s location. That’s because, as Kavanaugh wrote, “The Free Speech Clause does not prohibit private abridgment of speech.”64 (Emphasis in original.) Private actors are simply not bound by the First Amendment’s strictures; conversely, government agencies and officials are. As Justice Amy Coney Barrett recently wrote, “The First Amendment binds only the government.”65
This means that, when Vice President Vance asserts that platforms should “respect America’s constitutional rights (and) stop engaging in censorship,”66 he misconstrues the First Amendment. There is no constitutional right against “censorship” by private entities. There is, however, a First Amendment right for private entities—social media platforms included—not to be censored by the government. Put differently, citizens don’t possess a constitutional right to have their content posted on privately run platforms, just as the Supreme Court recognizes they don’t have a First Amendment right to force newspapers to publish their letters.67
Norm Singleton of the Market Institute illustrates this constitutional doctrine with a clear example:
If Chair Ferguson launched an antitrust investigation into the New York Times because of their refusal to publish an opinion piece praising DOGE (the Department of Government Efficiency), no one would doubt that he was violating the First Amendment. The same principle applies to internet news sites and social media platforms.68
Using “censorship” to describe the content-moderation practices of social media platforms therefore is misguided. NetChoice, a leading trade association for internet-based companies such as Amazon, Google, Meta, and Netflix, expressed this point in comments filed with the FTC:
The Commission’s RFI is framed as a request for information about “Technology Platform Censorship,” by which it means “technology platforms that limit users’ ability to share their ideas or affiliations freely and openly.” But censorship relates to government efforts to stifle or direct private speech, not expressive choices that private actors make. The First Amendment acts as an absolute bulwark against government interference in speech.69 (Emphasis in original.)
With these First Amendment fundamentals reviewed, I next turn to First Amendment principles that weigh against using antitrust law to change—through structural or behavioral remedies—platforms’ content-moderation policies and decisions.
The First Amendment Right of Editorial Discretion
In 2024, a six-justice majority of the Supreme Court ruled in Moody v. NetChoice that “to the extent that social-media platforms create expressive products, they receive the First Amendment’s protection.”70 In delivering the Court’s opinion, Justice Elena Kagan wrote that platforms “are indeed engaged in expression” when they
make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world.71
In Moody, the Court analyzed, among other things, a Texas law that “prevent(s) Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage).”72 Those restrictions make the law constitutionally problematic, with Kagan reasoning that
the law . . . prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more, the law—again, in that specific application—is unlikely to withstand First Amendment scrutiny.73
As comments filed by the Copia Institute with the FTC assert, the ruling in Moody “makes the FTC’s current inquiry particularly troubling, as it seeks to do exactly what the Supreme Court has said is forbidden: scrutinize private editorial decisions about content moderation to force them to be made how the government prefers.”74 Indeed, the Foundation for Individual Rights and Expression (FIRE) emphasizes this point in comments submitted to the FTC:
The problem with any FTC action that would burden the content moderation decisions of social media platforms is that those decisions are the platforms’ own constitutionally protected expression. Recasting those decisions as “censorship” or “consumer harm” does not disappear the First Amendment’s protection of such editorial judgments from governmental interference.75 (Emphasis in original.)
In sum, using antitrust law to obstruct platforms’ typical content-moderation decisions conflicts with the platforms’ First Amendment right of editorial control, discretion, and autonomy. Platforms, as private entities, can freely discriminate against content and viewpoints they deem objectionable. As Justice Kavanaugh wrote in Halleck, “The Free Speech Clause does not prohibit private abridgment of speech.”76 (Emphasis in original.) What the First Amendment does prohibit, however, is the government meddling with platforms’ ability to exercise editorial judgments for themselves.
The First Amendment Right Against Government-Compelled Expression
Using antitrust law to compel platforms to host information and messages they disagree with or would bar also violates the First Amendment right against government-compelled expression. As I explained elsewhere,
The First Amendment protects not only the right to speak, but also the right not to speak—the right not to be compelled by the government to express disagreeable or personally offensive messages. As Justice Neil Gorsuch wrote for the Court in a 2023 opinion, “(g)enerally . . . the government may not compel a person to speak its own preferred messages.”77 This right protects not only individuals but also entities, ranging from newspapers to anti-abortion crisis pregnancy centers.78
The Supreme Court’s general rule against compelled expression applies when entities are forced to accommodate others’ speech. As the Court observed in 2006, “We have . . . in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message.”79 The right against government-compelled expression is well established. As Justice Samuel Alito wrote for the majority in Janus v. American Federation of State, County, and Municipal Employees, Council 31, “We have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”80
In sum, deploying antitrust law to force platforms to host content intrudes on not only their First Amendment right of editorial discretion and autonomy recognized in Moody but also their constitutional right against government-compelled expression.
The First Amendment Bar Against Manipulating Privately Run Speech Marketplaces
The First Amendment prohibits the government from manipulating idea marketplaces to ostensibly balance them. In Moody, Justice Kagan explained that the Supreme Court
has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.81
In short, the FTC’s interest in meddling with idea marketplaces to strike back against alleged anti-conservative bias by some platforms won’t pass First Amendment muster. Using antitrust law doesn’t let the FTC skirt constitutional tenets. Governmental rebalancing efforts are, in a word, unconstitutional. As Kagan stressed,
A State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt(ing) public debate in a preferred direction.”82 (Emphasis in original.)
Kagan added that “on the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”83
This means, per FIRE’s FTC comments, that “courts have been clear for decades: Market power and lack of competition do not invest the FTC with the power to ignore the First Amendment and impose a ‘course correction’ on speech.”84 For example, the Supreme Court concluded in 1974 in Miami Herald Publishing Co. v. Tornillo that despite concentration of newspaper ownership in the hands of a few powerful publishers, the government could not compel newspapers to publish content against their will.85 The Court explained in Tornillo that
a newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment.86
In sum, using antitrust law to manipulate idea marketplaces in the FTC’s preferred direction is a constitutional nonstarter. The Supreme Court and the First Amendment won’t tolerate it.
The First Amendment Right Against Unlawful Jawboning
The Supreme Court has concluded that “government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”87 Such jawboning or informal censorship—censorship not resulting from a formal statute—violates the First Amendment when speech intermediaries (here, platforms that host others’ content) are threatened with adverse consequences if they fail to comply with government requests regarding others’ speech. Justice Sonia Sotomayor recently explained for a unanimous Court that
to state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.88
The FTC’s RFI may be an early step in a jawboning campaign directed at platforms (third-party speech intermediaries) to have them censor left-leaning views.
As comments with the FTC filed by the Phoenix Center state, “This RFI appears to be another example” in which the “government seeks to control speech protected by the First Amendment through threats and intimidation.”89 NetChoice seemingly concurs with this sentiment in its FTC comments, asserting that “the government should not be using threats of investigations pursuant to tenuous liability theories to pressure platforms to change their content moderation policies.”90 The constitutional problem with such jawboning, NetChoice explains, is that “platforms’ rights could be at issue even if the FTC never brings an enforcement action. The mere threat of enforcement can have chilling effects that raise constitutional concerns, if the threat is intended to suppress citizens’ exercise of their First Amendment rights.”91 TechFreedom asserts in its comments that “the message from the (Trump) administration is unmistakable: do not moderate content in ways we do not like. This message will lead to more censorship, not less.”92 Platforms may censor left-leaning viewpoints to please Trump, as they attempt to balance their online marketplaces in ways he desires and fend off formal investigations and enforcement actions.
If the FTC’s RFI is a jawboning effort to pressure platforms to change their content-moderation practices, then it contradicts Trump’s executive order (EO) titled “Restoring Freedom of Speech and Ending Federal Censorship.”93 The EO condemns the Biden administration’s jawboning of social media platforms:
Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.94
The EO adds that “government censorship of speech is intolerable in a free society.”95 It thus would be the height of hypocrisy if the RFI were part of an effort to censor platforms’ constitutional rights via coercive pressure.
The First Amendment provides formidable pushback against the government using antitrust law to change how platforms moderate content. Four First Amendment principles—ones regarding editorial discretion, compelled speech, marketplace manipulation, and jawboning—create a fortress of constitutional protection shielding platforms from such attempts.
Even if Trump’s FTC somehow overcame these principles, there is another reason why such efforts are misguided; it’s encapsulated by the idiom “what goes around comes around.” Although a Republican now occupies the Oval Office, that likely won’t always be the case. A Democrat someday may be president, and the antitrust laws the Trump administration exploits to manipulate online idea marketplaces may come back to haunt Republicans. The Center for Democracy and Technology and the Electronic Frontier Foundation made this point in their jointly filed comments with the FTC:
Speech rights do not, and should not, vary depending on which party holds the majority at the FTC under any given administration. Moreover, the FTC should be mindful that enforcement actions taken now may be used as precedent by future administrations with different speech values.96
In short, the pendulum of power oscillates in Washington, DC. Those currently holding power who stretch antitrust law to impose their will on speech marketplaces may be the victims of it later, even if the First Amendment doesn’t thwart their current efforts.
About the Author
ClayCalvert is a nonresident senior fellow in technology policy studies at the American Enterprise Institute. He is also a professor of law emeritus at the Levin College of Law and Brechner Eminent Scholar Emeritus at the College of Journalism and Communications, both at the University of Florida.
