Yesterday, TechFreedom filed comments in response to the Federal Trade Commission’s (FTC) request for comment regarding how social media content moderation might be unfair, deceptive, or anticompetitive. The Commission cannot reshape the decisions platforms make about which speech to carry without violating the First Amendment. 

“The First Amendment protects online platforms’ content moderation decisions,” said Berin Szóka, President of TechFreedom. “The Commission’s core authority covers unfair methods of competition and unfair or deceptive acts or practices. Regardless of which legal claim the Commission brings, the same general First Amendment principles apply—the government may not interfere in the marketplace of ideas. How private parties choose to shape speech on their own platforms, no matter how biased or objectionable their choices may be, is not the type of ‘censorship’ the First Amendment is designed to prevent. The First Amendment constrains the government, not private actors.” 

“Perhaps the Commission could police some dimensions of the process of content moderation without intruding on platforms’ editorial judgments, but those issues would be narrow and identifying them would require an in-depth dialogue with First Amendment scholars,” suggested Szóka. “Before the Commission takes any action in this area, including opening investigations, it should hold a public workshop and then issue a policy statement clarifying its legal authority.”

“One thing is clear: The balance of speech is not a competition or consumer protection issue,” Szóka continued. “Calling speech a competition or consumer protection issue does not make it so. A platform’s decision about what speech to host is protected editorial discretion. Defending this principle has been a central tenant of the conservative legal movement for decades. Republican Commissioners have long acknowledged that the FTC has no authority to police how media companies curate political speech. We now fear that the Commission, unhappy with the limits the Constitution places on government power, seeks to regulate free speech by reframing speech choices as antitrust injury.”

“The Supreme Court has ruled that the government cannot threaten legal action to control private speech,” Szóka concluded. “The Supreme Court has made clear in NRA v. Vullo and Moody v. NetChoice that the government cannot pressure private platforms—through threats or investigations—to alter or suppress speech. Even informal coercion, as noted by dissenting justices in Murthy v. Missouri, may violate the First Amendment, especially when targeting platforms especially vulnerable to government pressure. Simply put: An investigation of a platform, the aim of which is to change the platform’s content moderation decisions, violates the First Amendment no less than a direct mandate.”

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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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