The Federal Trade Commission is requesting public comments on “technology platform censorship,” a long-standing gripe for conservatives who believe social media companies have been censoring them and their ideas. To date, courts have rejected cases alleging censorship by the so-called Big Tech platforms on grounds that the plaintiffs failed to show “state action” on the part of government agents.
But ever since the Twitter files were released in late 2022 and early 2023, Congress, the courts, and the executive branch have all been forced to grapple with how social media companies may have been pressured or cajoled by government officials to censor disfavored individuals and ideas. The FTC’s inquiry suggests that it is looking for legal ways to address this alleged censorship.
The FTC is, for now, just seeking to gather more information on the scope and scale of the alleged censorship. While it is good to know more about pressure campaigns from government officials in particular, the request also aims to know more about how technology platforms “censor” users on their own. The commission will ultimately have to weigh how the First Amendment limits what legal tools may be applied to them.
The Supreme Court’s decision last year in Moody v. NetChoice made clear that social media platforms have a First Amendment interest in how they curate and display third-party content, the output of which constitutes a distinctive “expressive product.” Overriding their expressive choices impinges on their right to editorial discretion. Moreover, the government has no valid interest in “improving, or better balancing, the marketplace of ideas.”
These constitutional principles directly apply to possible consumer protection or antitrust claims that the FTC might bring. The courts wouldn’t grant an injunction requiring platforms to carry particular speech or speakers. In the context of antitrust law, this goes back to the 1945 decision in Associated Press v. United States, where the Supreme Court noted that the government could not “compel AP or its members to permit publication of anything which their ‘reason’ tells them should not be published.”
The FTC could exercise its consumer-protection jurisdiction to allege the tech platforms were engaged in “unfair or deceptive acts or practices” if they violated their own content moderation policies or other representations made to consumers. It’s even possible that the commission could legally require the platforms to grant more transparency about their moderation decisions.
But the First Amendment protects platforms’ ability to set and change their own policies as they see fit in order to create their own “expressive product.” In other words, the FTC couldn’t do much about a tech platform explicitly deciding to “censor” speech it doesn’t like since it is a private party.
The FTC could also allege collusion, whether among technology platforms or among advertisers, that led to similar moderation policies and decisions. Assuming that the FTC could make out such a case (which is by no means obvious), the First Amendment protects not only platforms’ right to make their own editorial decisions but also advertisers’ right to decide whether to buy ads on particular platforms. While antitrust laws can apply to speech platforms’ economic conduct, remedies may not extend to forced carriage or funding of any particular speech or speaker.
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There are good reasons to be wary of platform censorship. Last year’s Murthy v. Missouri decision limited individuals’ ability to bring claims of backdoor government censorship. Further action by Congress or the executive branch may, therefore, be needed to encourage transparency and limit government pressure campaigns.
But any such changes would need to recognize that the First Amendment protects tech platforms as private actors with a right to editorial discretion over their “expressive products.”
Ben Sperry is a senior scholar with the International Center for Law & Economics.