Free speech shouldn't be just for the party in the White House

By Charles Sauer
Real Clear Wire

One of the most important Executive Orders signed by President Trump on his first day in office was Restoring Freedom of Speech and Ending Federal Censorship. As the title suggests, the order forbids any U.S. Government employee from taking any actions that violate the First Amendment rights of any American citizen. The Executive Order is intended to protect against future encroachments on the right to free speech like those that occurred under the Biden Administration.

During the Biden years, government officials routinely pressured social media companies to silence Americans for questioning the official response to COVID-19. For example, Surgeon General Vivek Murthy said that, unless social media companies “voluntarily” removed posts containing “misinformation,” the Administration would apply “appropriate legal and regulatory measures.” Other members of the Administration sent messages to social media executives, addressing them as if they were poorly performing White House interns. At least one Biden staffer—Deputy Assistant to the President Rob Flaherty—even dropped an F-bomb in an email to Meta, parent company of Facebook and Instagram, inquiring why a post he “requested” be taken down was still up.

In March of this year, the Justice Department signed a consent decree with Louisiana and Mississippi settling a lawsuit brought by the states on behalf of their citizens whose First Amendment rights were violated by the Biden Administration’s censorship. The settlement forbids the Surgeon General, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Agency from threatening social media companies for refusing to remove or limit the viewership of “content containing protected free speech.” Unfortunately, some members of the Trump Administration seem to have not read this Executive Order.

For example, Federal Trade Commission Chair Andrew Ferguson—while a vast improvement over his predecessor Lina Khan—thinks the FTC should use its power to punish woke corporations for engaging in First Amendment-protected activity. The FTC recently settled a case, along with eight states, brought against major advertising companies. The suit alleged that the companies worked with progressive media watchdog groups, such as NewsGuard and the Global Disinformation Index, in order to limit the placement of ads on conservative sites. The ad agencies’ defense was to claim that they were protecting brand safety. 

Brand safety refers to advertising placement agencies avoiding sites with controversial political opinions or objectionable content. One problem with the FTC’s case is that being concerned with brand safety makes valid business sense. A business whose customers largely come from a demographic that tends to support progressive politics will not want to advertise on pro-MAGA websites for fear of alienating its existing customers. Similarly, a brand whose customers are mostly conservative will not want to advertise on AOC 2028. The main problem with the FTC case is that organizing boycotts of a business because of the business’s political activities is a First Amendment-protected activity.

Boycotts have a long and distinguished history. They were instrumental in the civil rights, labor, and other progressive movements. Boycotts have been used by conservatives—most notably by social conservatives—to pressure advertisers to stop running ads on programs that offended them. Organizers of these boycotts worked with conservative media watchdogs like the Media Research Center. Now, thanks to the precedent set by Andrew Ferguson, the next Democrat FTC Chair could target the Media Research Center and their allies for conspiring to restrain trade by organizing boycotts.

Chair Ferguson also wrote to (then) Apple CEO Tim Cook warning him that Apple could face a federal investigation for “unfair or deceptive or practices.” The deception in question is the claim that Apple’s news aggregation site is ideologically neutral, when in fact it promotes stories from left-wing sources while ignoring stories from conservative sources. Even if this were true, Apple has a First Amendment right to choose what news sources to feature in its news aggregator. If consumers are dissatisfied with Apple’s selection, they are free to use one of the many conservative news outlets on the internet.

Chair Ferguson and government officials like Federal Communications Commission (FCC) Chair Brendon Carr are not just violating the First Amendment—they are violating President Trump’s executive order on free speech. Unfortunately, the President’s commitment to free speech is also less than consistent. President Trump and his appointees must stop violating the First Amendment—otherwise America will become a country in which free speech only exists for those who won the last election.