In this post, author Alden Abbott (Truth On The Market) looks at the Federal Trade Commission’s (FTC) recent public inquiry into technology platform censorship and raises questions about its legal and strategic viability. While digital censorship poses significant policy concerns, Abbott cautions that the FTC and the Department of Justice (DOJ) must account for the strong First Amendment protections afforded to platforms. He suggests that pursuing enforcement actions against platforms for content moderation may not be a wise use of limited agency resources.
The FTC’s inquiry invites public comments on whether tech platforms unfairly deny or degrade users’ access to services based on speech or affiliations—conduct that could, in theory, violate antitrust or consumer protection laws. The commission argues that such censorship could harm consumers, suppress competition, or stem from anti-competitive practices. However, Abbott points out that the Supreme Court’s 2024 Moody v. NetChoice decision affirms platforms’ rights to control their content moderation as protected speech, significantly limiting the FTC’s and DOJ’s ability to regulate such behavior.
Abbott further explores the FTC’s potential reliance on its “unfair methods of competition” (UMC) authority and the Sherman Act to pursue cases. But he notes that demonstrating monopoly power in a diverse social media ecosystem is extremely difficult. Even if monopoly power and anticompetitive conduct were proven, Moody would likely prevent courts from restricting platforms’ editorial discretion. Attempts to use UMC against unilateral conduct that falls short of monopolization would similarly be blocked by First Amendment protections, reinforcing the legal barriers to regulating platform content moderation…