The FTC Wants More Control Over Online Speech. That’s A Big Problem

Late last month, the U.S. Federal Trade Commission (FTC) announced a request for public comment on so-called “tech censorship.”

America has a vibrant and successful market-driven system for content moderation, enabled by Section 230 of the Communications Decency Act, which allows platforms to set their own rules, while users decide where to engage. That’s why conversation on Bluesky feels different from Reddit, which feels different from Truth Social—each platform competes on moderation, governance, and community standards. This diversity has created a vibrant marketplace of ideas, fueling the success of both large and small companies, while cementing the U.S. as the global leader in internet technology and online speech. Undermine this system, and you don’t get more free speech—you get fewer platforms, less competition, and more centralized control over online discourse.

The FTC has based its investigation of “tech censorship” on a belief that tech companies are intentionally restricting access of individual users to their platforms, based on the content of the users’ posts or their affiliations. In the words of the press release, the FTC pointedly seeks information on “how this conduct may have violated the law.” As the FTC moves forward, it should be careful not to base its decisions on unverifiable reports, to the detriment of the digital economy that has been responsible for tremendous American innovation and growth. 

The decision whether to include certain content or users on the platform is also a basic First Amendment right. In the Supreme Court’s 2024 NetChoice opinion, the Court stated that online platforms’ choices about what material to publish “constitute the exercise of editorial control and judgment” that are “protected expressive activity.”  As CTA CEO and Vice Chair Gary Shapiro has noted, “America’s tech success needs the First Amendment… It empowers U.S. tech companies by protecting their ability to innovate without fear of censorship, enabling diverse voices and perspectives to contribute to tech progress.”   

These are all substantive legal issues that the FTC should consider in response to its request for public comment.  Unfortunately, the process the FTC has established does not seem likely to result in a balanced and robust record.  To be clear, federal agencies seeking public comment is a good thing. Taking enforcement actions against named companies based on unproven allegations, without giving them the opportunity to defend themselves, is not.

The FTC’s process in this proceeding raises concerns that companies won’t get a fair shake.  Basing enforcement on unvetted—and often anonymous—complaints is not reliable, and when the FTC receives thousands of comments, as it did in response to its proposed noncompete rule, staff cannot verify the factual assertions in each one.  Moving forward on this basis could harm companies’ protected interests in choosing what kind of content appears on their platforms, and result in worse outcomes for American consumers.

Instead, FTC leadership should focus on policies that help unlock innovation from American tech companies. That includes advancing all Americans’ shared interest in free speech.

David Grossman is CTA’s VP of Regulatory Affairs