The line between regulating conduct and regulating speech can be thin—and sometimes, suspiciously convenient.
Last week, my International Center for Law & Economics (ICLE) colleagues Ben Sperry and Jeff Westling published a post here at Truth on the Market titled “The FCC’s Sleeping Power over the Press.” It’s not about antitrust, but it’s well worth your time. Super-attentive readers of my agency roundup posts may recall my occasional forays into First Amendment issues (here and here, with links to journal articles here and here). Everyone needs a hobby. Mine happens to be the Bill of Rights. TMI? Perhaps. In any event, there’s a Federal Trade Commission (FTC) hook here. I’ll get to that.
Ben and Jeff focus on the administration’s “willingness to combat so-called ‘fake news’ through a little-used and difficult-to-enforce” policy recently invoked by Federal Communications Commission (FCC) Chairman Brendan Carr. As they note, Carr posted a screenshot of a Truth Social message from President Donald Trump criticizing press coverage of the conflict in Iran (not a war, even if it often looks like one). The president has every right to kvetch about coverage of himself, his policies, or anything else. There’s nothing objectionable about that, whether or not we agree with his views. I don’t take Ben or Jeff to suggest otherwise.
Carr, however, did more than amplify the president’s complaint. He added this on social media:
Broadcasters that are running hoaxes and news distortions-also known as the fake news–have a chance now to correct course before their license renewals come up. The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.
That sounds like something more than a personal gripe. It’s certainly not a factual correction—Carr identified no specific errors or corrections. If he meant to engage in jawboning—or to signal something more pointed—the vagueness may be the point. As King Lear put it (not at his most lucid):
I will do such things/What they are, yet I know not; but they shall be/ The terrors of the earth
Better to avoid that sort of madness—and the time and expense of thorny constitutional litigation. You have Ben and Jeff’s post, so I won’t rehash it here. Jumping to their recommendations, they offer two sensible proposals: first, the FCC should repeal its “news distortion policy” through its “Delete, Delete, Delete” proceeding; second, Congress should repeal the statutory authority said to undergird that policy.
One more point. Neither Carr nor the Trump 2 administration invented jawboning or government efforts to influence the press. These practices didn’t begin with the Biden administration either, though they continued there. Murthy v. Missouri set a high bar for challenging “backdoor” government efforts to censor speech, over a sharp dissent from Justice Samuel Alito, joined by Justice Neil Gorsuch and Justice Clarence Thomas (Ben has a helpful post on the decision). But that case turned on standing. And National Rifle Association v. Vullo—also decided in 2024—took a less forgiving view of government pressure conveyed through “guidance letters” (see Ben and R.J. Lehmann’s post on Vullo). All worth keeping in mind as we turn to…
Where Antitrust and Speech Collide—Sort Of
Several of my earlier forays into speech regulation were prompted by the FTC and the U.S. Department of Justice (DOJ) Antitrust Division. One followed an FTC announcement seeking public comment on “technology platform censorship.” That request suggested that content moderation by tech platforms might violate either—or both—the competition and consumer-protection prongs of Section 5 of the FTC Act.
Another, co-authored with Ben Sperry, examined a statement of interest the Antitrust Division filed in a private antitrust case against several major news publishers. The division did not argue that the alleged facts established anticompetitive conduct—specifically, an agreement in violation of Section 1 of the Sherman Act. It argued only that they could.
We found that argument both narrow and ill-advised. Once again, you have the link, so I won’t rehash it here. If you want a fuller treatment, we cover this ground—and more—in our Concurrences article, “Is There an Empty Set at the Intersection of Antitrust and Content Moderation?”
Apple News, Section 5, and a Theory That Doesn’t Quite Land
A Feb. 12 press release from the FTC reports:
Federal Trade Commission Chairman Andrew N. Ferguson issued a letter to Apple CEO Tim Cook, reminding him of Apple’s obligations to its customers. The letter follows reports that Apple News systematically boosts left-wing sources and suppresses right-wing sources. The letter points out that if Apple misrepresents Apple News or violates its terms of service, it could be violating the FTC Act.
A reminder. How thoughtful.
The letter itself states that “there have been reports that Apple News has systematically promoted news articles from left-wing news outlets and suppressed news articles from more conservative publications.” It continues: “[t]hese reports raise serious questions about whether Apple News is acting in accordance with its terms of service and its representations to consumers, as well as the reasonable consumer expectations of the tens of millions of Americans who use Apple News.”
“Serious questions”? Right. I doubt it.
That’s not to say I endorse Apple News’ editorial choices, or that the platform is unbiased or politically neutral. I’m not even sure what, precisely, “neutrality” would mean in this context.
What Apple Promises (Hint: Not Much)
Let’s take this in four parts: (1) the terms of service, (2) the “reports” cited by Ferguson, (3) possible Section 5 liability, and (4) the First Amendment.
Start with the terms of service. These documents—drafted, edited, and redrafted by counsel—rarely promise much. Apple’s are no exception. They say little of substance, aside from noting that Apple’s privacy policy applies, with the usual caveat:
by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others . . .
And, in all caps—so YOU KNOW THEY MEAN IT:
APPLE DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS.
Otherwise, we get the standard limitations and disclaimers. What we don’t get is any assurance of political neutrality—however defined—or even objective truth.
Ferguson’s letter says little about the terms. It notes, accurately but generically, that they address “a consumer’s use of the site, prohibited conduct, privacy and data security, and dispute resolution.” That doesn’t get us very far.
The Evidence (Such as It Is)
What about those troubling “reports”? Two come from Heather Moon at a site called MRC Free Speech America. I hadn’t heard of it either. It is sponsored by the Media Research Center, which bills itself as “AMERICA’S MEDIA WATCHDOG,” dedicated to “Shattering Liberal Media influence and Exposing Big Tech censorship that threaten America’s core values.” Moon’s posts rely on an MRC “study.” Ferguson also cites a New York Post article, but that piece simply summarizes the same MRC findings.
Moon claims:
Apple News stubbornly refrained from using any right-leaning outlets in the top 20 articles of its morning editions between Jan. 1 and Jan. 31, 2026. Of the 620 top stories featured by the news app in the first month of the year, not a single one was from a right-leaning media outlet.
Maybe. But there’s no objective metric for what counts as “left-” or “right-leaning.” The MRC relies on bias ratings from AllSides. Those ratings strike me as highly subjective—not quite what one expects, even from “qualitative” social science. Still, AllSides does explain its method and publishes its classifications. To its credit, it notes that it “doesn’t rate accuracy or credibility, because we’re not a Ministry of Truth. A publication can be accurate yet still biased.”
On that scale, the Wall Street Journal—my paper of choice, though one of three we subscribe to—is rated “Center,” alongside outlets like Forbes, Reuters, MarketWatch, and Reason. There are also categories for Lean Right and Right, and for Lean Left and Left. For example, the New York Times is rated Lean Left for news and Left for opinion.
None of this is especially satisfying. It’s subjective, contestable, and—frankly—the point. There’s no shortage of disagreement about media bias, including my own views.
For what it’s worth, I spot-checked Apple News. On March 22, its Top Stories included Fox News (Right, per AllSides), Reuters (Center), Bloomberg (Left), and the Los Angeles Times (Left), alongside sports and entertainment content from outlets that AllSides doesn’t rate. On March 23, the top included the Wall Street Journal, Reuters, and ABC News. Scrolling further yields more of the same: a mix of sources, categories, and topics.
If there’s a clear pattern, I didn’t find it.
Trying to Fit Editorial Judgment into UDAP
What about Section 5 of the FTC Act? Ferguson appears to focus on the consumer-protection prong—unfair or deceptive acts or practices (UDAP). More specifically, unfairness:
Big Tech companies that suppress or promote news articles in their news aggregators or feeds based on the perceived ideological or political viewpoint of the article or publication may violate the FTC Act if that suppression or promotion (1) is inconsistent with the terms and conditions of service; (2) is contrary to consumers’ reasonable expectations such that failure to disclose the ideological favoritism is a material omission; or (3) when those practices cause substantial injury that is neither reasonably avoidable nor outweighed by countervailing benefits to consumers or competition.
How would the FTC get an unfairness case off the ground here?
The terms of service say nothing about ideological neutrality. They don’t promise balance, accuracy, or any particular editorial approach. The only statement touching accuracy is the disclaimer quoted above.
So what’s the theory? A material omission? By which version of the product? Relative to what “reasonable expectations”? Established how? And what, exactly, should Apple have disclosed?
As Ben and I have argued elsewhere:
At bottom, filtering the news—and sources of the news—is central to the product or service that news organizations provide in the market. The notion that they best provide that good or service by publishing everything … is risible, if not incoherent.
Substitute “balance” for “diversity,” and the problem remains. Editorial selection is the product, not a defect. The fact that some users prefer different editorial choices does not transform those choices into an unfair practice.
I’m not saying a Section 5 theory is impossible. I am saying I don’t see one here—and that’s before we get to the First Amendment.
The FTC Is Not the Speech Police—But…
Ferguson includes a paragraph that, standing alone, sounds entirely reasonable:
The FTC is not the speech police; we do not have authority to require Apple or any other firm to take affirmative positions on any political issue, nor to curate news offerings consistent with one ideology or another. But Congress has mandated that we protect consumers from material misrepresentations and omissions, including when the product or service offered to consumers is a speech-related product.
The first sentence is exactly right. I like it so much that I’ll repeat it, bolded, and in italics:
The FTC is not the speech police; we do not have authority to require Apple or any other firm to take affirmative positions on any political issue, nor to curate news offerings consistent with one ideology or another.
The second sentence is also true, as far as it goes. The First Amendment does not immunize all speech. Fraud, for example, is not protected (so says the Supreme Court) and falls squarely within the FTC’s UDAP jurisdiction. See, e.g., Tim Muris testifying before the Senate in 2010, and more recent remarks by Chris Mufarrige, director of the FTC’s Bureau of Consumer Protection.
There is also precedent for the proposition that the First Amendment does not protect criminal or civil conspiracies that violate Section 1 of the Sherman Act or Section 5 of the FTC Act—this time, the unfair methods of competition (UMC) prong. The Supreme Court’s 1945 decision in Associated Press is the usual citation. The First Amendment does not absolutely prohibit all congressional (and, via the Fourteenth Amendment, state) regulation of speech acts. But you knew that.
Still, protected speech is protected speech. And the exercise of editorial discretion strengthens First Amendment claims. The space for a viable Section 5 complaint—under either the UMC or UDAP prong—is narrow. Which is to say, Ferguson is a bit breezy here:
The First Amendment protects the speech of Big Tech firms. But the First Amendment has never extended its protection to material misrepresentations made to consumers, nor does it immunize speakers from conduct that Congress has deemed unfair under the FTC Act, even if that conduct involves speech.
Congress has not deemed Apple’s conduct unfair under the FTC Act. Section 5 provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared illegal.” (15 USC § 45(a)(1)). It also limits the commission’s authority under the unfairness prong:
The Commission shall have no authority … to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.
That’s Section 5(n) (15 U.S.C. § 45(n)). There’s more to Section 5 than subsections (a)(1) and (n), but none of it specifies which acts or practices are unlawful. That work is left to the FTC and the courts.
You might call that a quibble. Courts have upheld enforcement of antitrust and FTC Act violations notwithstanding First Amendment protections. But First Amendment doctrine suggests it’s not so simple. The precedents Ferguson invokes do not obviously do the work he assigns them.
A Boycott Is Not a News Feed
Ben Sperry and I discuss Federal Trade Commission v. Superior Court Trial Lawyers Association elsewhere, so I’ll be brief here. The case involved a group boycott. As Justice John Paul Stevens explained for the Court:
Pursuant to a well-publicized plan, a group of lawyers agreed not to represent indigent criminal defendants in the District of Columbia Superior Court until the District of Columbia government increased the lawyers’ compensation.
The Court had little trouble characterizing the conduct. “[T]he horizontal agreement among these competitors was unquestionably a ‘naked restraint’ on price and output.” The lawyers argued that their boycott was expressive conduct—protected speech. The Court disagreed.
As Stevens put it:
Every concerted refusal to do business with a potential customer or supplier has an expressive component. At one level, the competitors must exchange their views about their objectives and the means of obtaining them. The most blatant, naked price-fixing agreement is a product of communication, but that is surely not a reason for viewing it with special solicitude.
To treat such conduct as protected speech, the Court concluded, “exaggerates the significance of the expressive component in respondents’ boycott.”
That analysis does real work—but in a very specific setting: a horizontal agreement among competitors to restrain trade. It does not follow that any activity involving speech, or even expressive judgment, loses First Amendment protection simply because it has communicative elements. And it is a long way from a coordinated refusal to deal to editorial judgment about which stories to feature on a news platform.
Fraud Is Not Protected Speech, But This Isn’t Fraud
The citation to the FTC’s POM Wonderful case ultimately returns us to the same point: fraud is not protected speech.
The commission’s complaint targeted advertisements for pomegranate-based products that claimed to treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction—without adequate substantiation. Some allegations proved too ambitious and were rejected on appeal. Others were straightforward. For a careful treatment, see Maureen Ohlhausen’s opinion for the commission and her concurrence, which parses the strengths and weaknesses of the claims.
At bottom, the commission found liability based on numerous “advertisements containing false and misleading claims.” As alleged, POM:
disseminated advertising and promotional materials representing that consumption of certain doses … treats, prevents or reduces the risk of heart disease, prostate cancer, or erectile dysfunction … without having a reasonable basis to substantiate these claims.
A panel of the U.S. Court of Appeals for the D.C. Circuit—Judge Douglas Ginsburg, Judge Merrick Garland, and Judge Sri Srinivasan—agreed on the core findings. While rejecting some of the FTC’s substantiation standards, the panel concluded that:
the Commission’s findings of deception are supported by substantial evidence in the record; and we would reach the same conclusion even if we were to exercise de novo review, at least with respect to the nineteen ads determined misleading by the administrative law judge and held by the Commission to form a sufficient basis for its liability determination and remedial order.
The court applied the Supreme Court’s Central Hudson framework for commercial speech, which offers significant protections, but less protective than the First Amendment’s treatment of core expressive activity.
That matters. This was not about political, social, or religious speech. It was not about academic or artistic expression. It was not about “pure speech.” And, to put it bluntly, it was not about the news.
It was about false advertising.
Fraud often takes the form of words—speech acts—but it is not protected by the Speech Clause of the First Amendment. That’s doing the work in POM Wonderful. It’s not obvious that it does any work here in the Apple News matter.
Editorial Discretion Still Means Something
Associated Press doesn’t get us much further. We should read it in light of 80-plus years of subsequent First Amendment jurisprudence. That body of law includes cases involving news organizations, such as Miami Herald Publishing Co. v. Tornillo, and content moderation by platforms, such as Moody v. NetChoice.
Those cases protect editorial discretion.
In Moody, the Supreme Court struck down Florida and Texas laws regulating large social media platforms, emphasizing:
On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.
The Court reiterated that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam).
That principle applies with force to both publishers and platforms.
Ben Sperry and I have made the same point in the antitrust context (here and here). The First Amendment protects editorial choice. It does not empower the agencies to supervise it.
All Signal, No Case
Do we know where courts—or ultimately the Supreme Court—would draw the line in some hypothetical Section 5 unfairness case raising First Amendment issues? We don’t. But we do know the direction of travel: the Court has been far more protective of speech—and editorial discretion—than of government intervention in both news media and content moderation.
Do we know what unfairness case the FTC might bring against Apple News? No. Chairman Ferguson’s letter doesn’t say, and it’s hard to derive one from the terms of service.
In theory, one could imagine a case. If a platform’s editorial practices diverged sharply from specific, material representations in its advertising or marketing, that gap might support a fraud theory. That could, in turn, violate Section 5’s prohibition on “unfair or deceptive acts or practices in or affecting commerce” without triggering First Amendment protection or running afoul of the statute’s limits. Possible, yes. Likely, no. And it doesn’t describe the conduct Ferguson identifies.
Warning letters can serve a useful function. They can provide targeted guidance—a form of soft law that signals potential enforcement. The FTC, including under this administration, has issued such letters before. But it’s hard to see much guidance here, if any. For that matter, on “guidance,” see Vullo.
No doubt, some users feel aggrieved by Apple’s editorial choices. Ferguson may be among them. But if the foregoing is right, what is the point of the letter? The charitable view is political posturing, with no enforcement action to follow. Perhaps Tim Cook understands that, with or without the advice of counsel.
The less charitable view is jawboning—or something close to it: an attempt to exert pressure, backed by the implicit threat of investigation, to achieve indirectly what the chairman concedes the FTC cannot do directly.
The post Speech, Section 5, and Some Curious Scribbling: A First Amendment Story appeared first on Truth on the Market.