The FTC’s Latest First Amendment Problem

In Robert Bolt’s A Man for All Seasons, Thomas More exclaims, “This country is planted thick with laws.” These laws, More posits, are the guardians of the citizen, of his rights and liberties. In the last century, however, new laws in America have proliferated at a remarkable rate; and federal statutes have become an overgrown thicket, dominating the landscape and choking the other life that ought to flourish. The U.S. Code has expanded to tens of thousands of sections, and in 2024, the Federal Register surpassed 100,000 pages. This agonizing array of laws—and in particular the many laws filled with nebulous and abuse-prone provisions—gives overzealous regulators the means to act against almost any disfavored person or business; show me the man, and I’ll show you the crime, as the saying goes. As Cicero wrote: more law, less justice.

Illustrating this defect in the American legal system, the Federal Trade Commission (FTC) last month took exception to the purported bias of Apple News. FTC chairman Andrew Ferguson’s dispatch to Apple accused the company’s news aggregator of “promot[ing] news articles from left-wing news outlets and suppressed news articles from more conservative publications.” Ferguson knows that the First Amendment bars regulators from contravening the editorial judgment of private companies, including Apple News: “As an American citizen, I abhor and condemn any attempt to censor content for ideological reasons,” he wrote. But by exploiting—and perverting—the agency’s vague statutory authority to quash “unfair and deceptive practices,” the FTC attempts to commit precisely the sort of editorial control it disclaims.

Ferguson suggests that Apple’s selection of news stories might violate its terms and conditions of service or “is contrary to consumers’ reasonable expectations.” However, Apple News’ terms of use make clear that the platform “does not promise that the site or any content…will be error-free…or that your use of the site will provide specific results.”

This leaves unresolved only the question of whether the federal government might intervene, based on some subjective judgment of consumer expectations, to realize some notion of ideological neutrality. The First Amendment forbids such interventions.  “[I]t is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences,” Supreme Court Justice Elena Kagan wrote for the majority in Moody v. NetChoice (2024). In a 2004 dust-up similar to the Apple News episode, one regarding Fox News’ slogan, “Fair and Balanced,” the FTC declined to act. “There is no way to evaluate this petition without evaluating the content of the news at issue,” then-chair Timothy Muris stated. “That is a task the First Amendment leaves to the American people, not a government agency.”

In the American constitutional cosmos, questions of objectivity and bias, of truth and falsehood, must remain untouched by regulators—and the citizenry must remain free to resolve them through public deliberation. For all its professed fidelity to the First Amendment, the FTC’s pursuit of Apple News amounts to little more than bureaucratic opportunism. It is a sad day for free speech when the FTC, or any other agency, dredges up whatever convenient statute it can find to provide a patina of legality to obscure its rank bid to enforce its conception of the truth.