Yesterday, TechFreedom filed in response to the Federal Trade Commission’s request for public comments regarding the FTC’s approval of the $13.5 billion merger of Omnicom and Interpublic on the condition that the combined family of advertising agencies refrain from certain practices related to political or ideological bias in placing ads. 

“This is weaponization of antitrust law to advance the administration’s political agenda,” warned Berin Szóka, President of TechFreedom. “Antitrust law has never been used to police ‘bias’ and for good reason: last year, in NetChoice v. Moody, the Supreme Court said the First Amendment forbids the government to ‘interfere with private actors’ speech to advance its own vision of ideological balance.’ Yet that is precisely what the FTC is now trying to do: to make it harder for advertisers to avoid funding the misleading or inflammatory content that fuels MAGA populism.” 

“The Commission is about to cross a true constitutional Rubicon—between commercial and non-commercial speech,” continued Szóka. “The Commission has long regulated commercial speech in protecting consumers from false advertising, undisclosed endorsements from influencers and the like, but has always been careful to recognize that it cannot police non-commercial speech. The FTC Act gives the Commission jurisdiction only over acts, practices and methods of competition ‘in commerce.’ By respecting this statutory limit, the FTC has also steered clear of the First Amendment. And until now, it has been Republican chairmen who have firmly rejected requests that the agency start trying to police political bias in the media—most recently, President Trump’s first FTC Chair, Joe Simons.”

“Moody explicitly recognized that media companies are still subject to the antitrust laws, but only for their business practices, not for how they handle speech,” said Szóka. “That’s the Rubicon the FTC must not cross. Exactly how to distinguish between the two categories may not always be easy. But the right way to explore that question would be through a public workshop, comments from experts, and perhaps the issuance of a policy statement that carefully analyzes the difficult First Amendment issues at stake. Such dialogue is especially vital now that President Trump has fired both Democratic FTC Commissioners, leaving no one at the agency to sound the alarm.”

“The Commission is beginning to do precisely what conservatives have long criticized the agency for: regulation by consent decree,” concluded Szóka. “It was troubling enough that the FTC spent many years regulating data security and commercial privacy issues through dozens of consent decrees without the involvement of courts. But bypassing the courts to regulate political ‘bias’ is profoundly more troubling. Here, as in so many other areas, the Trump administration is abandoning longstanding conservative principles in order to satisfy the President’s demands for revenge against those he feels have treated him and his allies ‘unfairly.’ President Ronald Reagan, the man who ended the Fairness Doctrine and got the government out of policing media bias, must be rolling in his grave.”

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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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