Last week, TechFreedom filed comments to the FTC explaining why both the First Amendment and longstanding FTC precedent bar the Commission from policing the bias, objectivity, accuracy or balance of AI-generated outputs by suing AI companies under its authority over deceptive acts and practices. 

“The FTC can no more regulate the bias or objectivity of AI services than it could that of encyclopedias or cable news,” said Berin Szóka, TechFreedom’s President. “Both have promised consumers fairness and balance, yet the FTC has wisely declined to police such claims because they are not objectively verifiable. Attempting to compare what consumers received with what they were promised would embroil the Commission in assessing the underlying content, which the First Amendment bars. Such companies’ marketing claims might be commercial speech but the underlying content is non-commercial speech fully protected by the First Amendment. Whatever the medium, the Supreme Court has barred the government from trying to achieve balance in the marketplace of ideas.”

“The FTC has policed the accuracy of claims about public health, but not opinions about disputed issues of science, history, or public debate,” Szóka continued. The draft statement suggests that AI companies may be manipulating the behavior of their systems in ways that conflict with reasonable consumer expectations of objectivity and accuracy. “Even assuming the FTC could prove such practices exist, the FTC fails to explain how the First Amendment would permit the agency to use its deception authority to regulate them.”

“The FTC claims companies can avoid liability by admitting their ideological biases, but this would be a form of compelled speech barred by the First Amendment,” Szóka concluded. “The First Amendment broadly bars the government from compelling speech, including requiring speakers to label themselves as partisans. Editorial choices made by AI companies regarding their outputs are unquestionably matters of opinion, and any requirement forcing them to disparage their own offerings would be a clear constitutional overreach.”

Bilal Sayyed, TechFreedom’s Senior Competition Counsel, former Director of the FTC’s Office of Policy Planning and a 30-year veteran antitrust lawyer, also filed comments urging the Commission to align its proposed AI statement with its existing deception framework.

“The FTC doesn’t need a new theory to protect consumers here; it needs to apply the one it already has,” said Sayyed. “Consumers deserve to know when an AI system has been designed to chase objectives different from what they were told. But the Proposed Statement reaches that sound goal by unsound means—presuming a representation no company actually made, presuming consumer expectations no evidence supports, presuming materiality the Commission’s own framework says requires special caution, and applying its disclosure principle to one set of viewpoints but not another. Conforming the statement to the FTC’s own 1983 deception framework would fix all of it.” 

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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