The Federal Trade Commission announced on Thursday that it will launch a public inquiry into “censorship by tech platforms,” soliciting comments from people who feel they have been demonetized, banned, or otherwise censored due to their speech or affiliations.
“Tech firms should not be bullying their users,” said FTC Chairman Andrew Ferguson in a statement. “This inquiry will help the FTC better understand how these firms may have violated the law by silencing and intimidating Americans for speaking their minds.”
The FTC’s request for public comment does not specify which laws the FTC believes platforms could be violating.
However, the regulator alleges that these policies — which can sometimes cause online creators to lose access to their accounts with no appeals process — could be deemed anti-competitive.
Creators have long bemoaned their opaque relationship with big tech platforms. Startups have even emerged to provide creators with insurance to protect against account hacks, which can lead to losses of income. But the FTC’s invocation of content creators could be a distraction, as this announcement comes at a time when social media executives like Mark Zuckerberg and Elon Musk are loosening restrictions on hate speech and calling into question the relationship between content moderation and the First Amendment.
Cathy Gellis, a lawyer with expertise in technology and free speech, told TechCrunch that this inquiry seems to misinterpret the purview of the First Amendment.
While the First Amendment restricts the government from interfering in individuals’ speech, it does not limit private actors, like most online tech platforms.
“In most cases, internet platforms are private actors, which have their own First Amendment rights to moderate their sites as they would choose,” Gellis said. “If anything it is this inquiry by the FTC, which itself is a government actor, that threatens to violate the First Amendment, by seeking to interfere with the editorial discretion that internet platforms are entitled to have.”
The oft-cited Section 230 of the Communications Decency Act protects online platforms from being held liable for illegal content posted by individuals. In recent years, the Supreme Court has heard cases challenging the legislation, which was written in 1996, before social media existed as it does today. Yet the court has upheld Section 230 after multiple legal challenges.
Though Zuckerberg and Musk have appealed to the First Amendment as they loosen content moderation and fact-checking policies, Snap CEO Evan Spiegel says his peers are misunderstanding the First Amendment.
“A lot of platforms are basically saying, you know, we support the First Amendment, so anyone on our platform should be able to say anything, but that’s sort of misconstruing what the First Amendment does,” Spiegel said in a recent interview with YouTubers Colin and Samir. “Actually, the platform can choose whatever content guidelines or policies it wants under the First Amendment. And so I think there’s been a little bit of misdirection mostly, probably because folks don’t want to moderate content, because when they do, engagement goes down.”
On Wednesday, President Trump signed an executive order that makes independent regulators, like the SEC and FTC, accountable to the White House, which could impact this inquiry. But experts remain skeptical about the constitutionality of Trump’s decree.
