Last week, TechFreedom filed comments with the Federal Trade Commission regarding X Corp.’s petition to reopen and set aside—or, in the alternative, modify—the 2022 consent order governing Twitter.

The comments explain that the FTC’s procedural rules that govern consent decrees and investigations give the Commission excessive leverage to coerce companies to settle claims. These consent decrees “function as quasi-regulations, imposed on entire industries not by rulemaking but by the administrative equivalent of a leering glare.”

The comments call on the Commission to address X Corp.’s petition “first through rulemaking rather than ad hoc revision, or rescission,” implementing “a consistent framework governing consent decrees that could be stable in the long term, across changes in the leadership of the Commission and changes in control of the White House—rather than a short-term, patchwork fix.” Such a rulemaking would “insulate the FTC from charges of favoritism,” addressing topics such as the “duration of consumer protection consent decrees,” a process for modifying or setting aside orders, and “factors to determine when an investigation or order unduly hampers innovation.”

The comments warn that the FTC should avoid creating First Amendment concerns by using its regulatory authority to pressure platforms’ editorial decisions. As the comments explain, “the Commission must avoid jawboning via threat of agency action.” Because platforms face strong incentives to comply with government pressure, even informal efforts to influence content moderation can circumvent constitutional limits on government interference with speech. The comments urge the FTC to initiate a rulemaking to update its procedural rules to ensure that its actions do not become a vehicle for government pressure over protected editorial discretion.

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Find these comments on our website. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: 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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