Will FTC Chair Andrew Ferguson Inadvertently Promote Censorship?

By Robert H. Bork Jr.

March 17, 2025

Why is the Federal Trade Commission under Trump-appointed Chair Andrew Ferguson seeking public comments on “technology platform censorship”? Not, as they say on Seinfeld, that there is anything wrong with that. But the FTC probably wouldn’t take such a step without an idea of where it is going.

Ferguson recently told CNBC that, if companies are kicking people off platforms for holding particular views, “that could be an indication that there’s a competition problem. . . and competition problems are my job.” 

It sounds as if Ferguson is considering pursuing an antitrust complaint against social-media platforms on content censorship. If so, he will endanger both free-speech law and antitrust enforcement. Even the attempt to manage speech through a consumer-protection complaint would insert government deeply into the management of speech. Whatever legal, cultural, and social issues remain on content and censorship, these are the wrong tools to address speech issues. It would also be an odd move for a conservative administration, effectively adding one more authority to former FTC Chair Lina Khan’s expansion of antitrust to address a parade of grievances – the fate of inefficient competitors, correcting racial injustice, promoting labor unions – not found in antitrust law, precedent, or the powers Congress granted to the agency.

Conservatives should be especially wary. If we extend the purview of antitrust law to govern speech, the next progressive administration will be handed a powerful weapon. You can count on progressive lawyers to invert principles of free speech into government-approved speech codes. If this strikes you as unlikely, read an essay by the ideological godfather of progressive antitrust Tim Wu, who asks “Is the First Amendment Obsolete?”

Ironically, overkill to end censorship has the potential to backfire against free speech. This would be an especially odd move now that President Trump has issued an executive order ending “federal censorship.”

When highly regulated social-media companies were pressured by government in this way, those requests were not taken as suggestions. Just listen to Mark Zuckerberg’s description of what it was like to be on the receiving end of threats from the Biden administration toward Facebook: “They pushed us super hard to take down the things that were, honestly, were true.” It would have been no less a First Amendment violation for the government to force Facebook to take down things that the company itself judged not to be true. That is because the First Amendment comprehensively forbids government regulation of speech.

On the other hand, as the Supreme Court ruled in Moody v. NetChoice, the First Amendment protects the right of social-media companies to curate third-party content. Once liberated from government regulation, social-media platforms have a First Amendment right to tell Washington — or anyone else, including aggrieved conservatives — to pound sand.

And that’s how social-media companies are acting now. Meta dropped its notoriously biased “fact checkers.” Google is changing its corporate culture, cracking down on the tail-wagging-the-dog demands by activist-employees. X is pioneering the liberation of moderation from government control. In fact, Meta is testing the “community notes” technology, first developed by X, to crowdsource facts in posts on Facebook, Instagram, and Threads. 

This is heartening, considering that social-media companies under the Moody decision have the right to regulate speech and content however they choose. They could put an AI-generated mustache on every image of the president, or interrupt every conservative message with a funny cat video. Again, this is because First Amendment restrictions only apply to the actions of the government. Large platforms that make up the national town hall have a social obligation to live up to the spirit of the First Amendment. This means allowing people to post anything within reasonable limits of obscenity, explicit hate speech, libel, and calls for violence. But to stress, this is a social obligation, not a legal one. 

That’s why it’s called “free” speech. A true conservative – like a true liberal – holds the conviction that, over time, the dialectical process of competing claims will winnow out the truth. This may sound naïve in this age of polarized narratives, but we should hold fast to the hope that, with freedom, Americans will break through ideological silos to promote real, productive debates.

Respect for free speech is moving strongly in the right direction in the United States, both in Washington, D.C. and in Silicon Valley. Europe is moving in the opposite direction, doubling down on the EU’s Digital Services Act that privatizes censorship by requiring companies to take down anything that could be construed as “hate.” 

President Trump and Vice President Vance have been vocal about opposing EU-style censorship in the United States. Did Andrew Ferguson get this memo? Using antitrust or consumer-protection law to govern content management and to counter censorship would degrade the integrity of the law. Worse, it would inadvertently pave the way for the next censorship regime.

Originally published at National Review.