As the US Supreme Court noted almost ten years ago, digital platforms are the new public square.1 Today, however, competition for a prime soapbox location is difficult. Many argue that the relevant market is unduly concentrated, with only a handful of platforms vying for consumer attention. Many add that these platforms exercise a significant degree of control over the flow of information and public discourse.
At the same time, concerns about misinformation, hate speech, and content moderation (less politely known as censorship) have brought new urgency to the question of how — and whether — speech should be regulated on private platforms. Issues arise in a variety of contexts; as noted by the 5th Circuit a couple of years ago in Missouri v. Biden,2 these include the COVID 19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story.
In speeches and actions, the FTC and DOJ have made clear that they view these issues as raising antitrust concerns that are within their purview. Indeed, these issues appear to be top of mind for the agencies.
In February, FTC Chairman Andrew Ferguson launched a public inquiry with a Request for Information seeking to better understand whether and how technology platforms deny or degrade users' access to services based on the content of their speech or affiliations. The FTC invited those who have suffered from content suppression to report their experiences, and more than 3,400 comments were received. This was not the first time Chair Ferguson expressed concerns over content suppression; in a December 2024 concurring opinion to FTC v. GOAT,3 then Commissioner Ferguson wrote:
When Americans' ability to engage in robust public debate on issues of national importance is at stake, no stone should be left unturned. The Commission should undertake these investigations. Using Section 5 to enforce the penumbra of contract law is only one of many tools at our disposal. We should use all the tools we have.
Earlier this year, the DOJ Antitrust Division, led by Assistant Attorney General Abigail Slater, hosted an eye opening "Big Tech Censorship Forum." The forum brought together senior government officials, including FCC Chairman Brendan Carr and FTC Chairman Ferguson, and featured panel discussions moderated by Principal Deputy Assistant Attorney General Roger Alford and Deputy Assistant Attorney General Omeed Assefi. Among the speakers was Steve Bannon, who, along with others, discussed perceived censorship by major technology platforms. Chairman Carr notably repeated the call to "smash the censorship cartel," reflecting growing concern among regulators about the influence of dominant digital platforms over public discourse. The forum also explored emerging legal theories and enforcement strategies that could be used to address these concerns under existing antitrust and constitutional frameworks.
The concerns about private censorship raise any number of significant questions, e.g.:
Are these issues legitimate antitrust concerns?
Do the current antitrust laws reach this behavior? What antitrust tools are available and what are the most effective ways to remedy this alleged harm?
Isn't the First Amendment limited to restricting the government from infringing on free speech? Aren't private actors free to moderate content (i.e., to censor viewpoints they don't want to spread)? Is the use of antitrust laws by the DOJ or FTC to combat content suppression itself a violation of the First Amendment?
Some of these questions are easier to answer than others. Antitrust does seem legitimately to be concerned with the expression of varied viewpoints. Justice Elena Kagan, writing for a unanimous Supreme Court last year,4 made that clear:
Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access.
However, Justice Kagan went on to explain that "in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm." Accordingly, the Court rejected the Texas statute at issue in that case, reasoning that allowing the government to determine when speech is "imbalanced" and to compel private entities to amplify or suppress particular viewpoints would be a "worse proposal" than tolerating an imperfect. but privately governed, marketplace of ideas.5
Therefore, the First Amendment can be a shield against prosecution in some contexts. But not in others. In 1945, the Supreme Court considered an Associated Press (AP) policy that gave its members the ability to block non-member competitors from joining the cooperative and gaining access to AP stories. The AP's position was that enforcing antitrust laws against it would violate the freedom of the press by compelling the members to share their intellectual property. The Court rejected that argument: "Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from government interference under the First Amendment does not sanction repression of that freedom by private interests."6
Thus, the case for using antitrust theories to combat content suppression seems clearest where there is evidence of collusive activity that reduces competition, particularly where there are demonstrable commercial consequences. That's exactly the context that FTC Chairman Ferguson pointed to in a consent decree announced on June 23 resolving Omnicom Group's proposed acquisition of The Interpublic Group of Companies. The Commission authorized a proposed consent decree resolving its challenge to this merger of global advertising companies, subject to their agreement to specified conduct remedies.7
In explaining the basis for the coordinated interaction theory underlying his reasoning, Chairman Ferguson acknowledged that not all 6-to-5 mergers violate Section 7, but explained that one factor influencing whether such mergers are likely to lead to coordinated effects is whether there is a history of actual or attempted collusion in the industry at issue. Here, as Chairman Ferguson explains, the FTC's Complaint alleges that:
In recent years, the advertising industry has been plagued by deliberate, coordinated efforts to steer ad revenues away from certain news organizations, media outlets, and social media networks. This type of coordination risks America's largest companies' economic weight unwittingly being enlisted for the political and ideological aims of certain advertising industry groups and political activists who in turn avoid the costs they would incur if they merely refused to deal on their own. ...
In a market like advertising, where we are presented not only with increasing concentration in the relevant market, but also a troubling history of collusion to the detriment of consumers and the free conduct of American political discourse and elections, that duty is especially pressing.8
Footnotes to Chairman Ferguson's Statement accompanying the announcement of the settlement reveal that the media outlets that had been the targets of the alleged collusive efforts include Breitbart, Facebook, Joe Rogan, Tucker Carlson Tonight, and Twitter.9 In recent years, there had also been unsuccessful allegations of collusive efforts "motivated by political animus" to stifle social media.10
The FTC's proposed decision and order sets forth behavioral remedies prohibiting Omnicom and Interpublic from entering or maintaining any agreement or practice that would steer advertising dollars away from publishers based on their political or ideological viewpoints.
Chairman Ferguson asserts that coordinated action by advertising agencies against politically disfavored publishers is tantamount to an agreement not to compete on quality. And while Chairman Ferguson describes the collusion theory advanced in the Omnicom matter as fully consistent with precedent, it will, of course, be interesting to see whether other theories develop, for example:
Are any of the social media platforms large enough to support a claim of monopoly power that could be entrenched by excluding certain unpopular political content?
In the merger context, will a concern over competition for viewpoints or "media plurality" become an issue of importance to the agencies?
Can Big Tech platforms establish that their content moderation activities comply with their terms of service, and do not give rise to an FTC Act Section 5 concern?
Footnotes
1. Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).
2. Missouri v. Biden, 83 F.4th 350 (5th Cir.), cert. granted sub nom. Murthy v. Missouri, 144 S. Ct. 7, 217 L. Ed. 2d 178 (2023), and rev'd and remanded sub nom. Murthy v. Missouri, 603 U.S. 43, 144 S. Ct. 1972, 219 L. Ed. 2d 604 (2024).
3. Concurring Statement of Commissioner Andrew N. Ferguson FTC v. 1661, Inc. d/b/a GOAT (Dec. 2, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-goat-concurrence.pdf.
4. Moody v. NetChoice, LLC, 603 U.S. 707, 144 S. Ct. 2383, 219 L. Ed. 2d 1075 (2024).
5. Id.
6. Associated Press v. United States, 326 U.S. 1 (1945)
7. Press Release, FTC Prevents Anticompetitive Coordination in Global Advertising Merger (June 23, 2025), https://www.ftc.gov/news-events/news/press-releases/2025/06/ftc-prevents-anticompetitive-coordination-global-advertising-merger.
8. FTC Complaint, In the Matter of Omnicom Group / The Interpublic Group of Cos., https://www.ftc.gov/system/files/ftc_gov/pdf/2510049omnicomcomplaint.pdf.
9. Statement of Chairman Andrew N. Ferguson In the Matter of Omnicom Group / The Interpublic Group of Cos. (June 23, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/omnicom-ipg-ferguson-statement_0.pdf.
10. Complaint, Parler LLC v. Amazon Web Services, Inc., No. 2:21-cv-00031 (W.D. Wash. Jan. 11, 2021), EFC No. 1.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
