David Inserra
Federal Trade Commission Chairman Andrew Ferguson recently addressed a letter to Apple CEO Tim Cook to suggest that the Apple News product may be in violation of the FTC Act.
Apple’s crime?
Its Apple News product, which curates news from a variety of sources, has “systematically promoted articles from left-wing news outlets and suppressed news articles from more conservative publications,” including recently not featuring “a single article from any American conservative-leaning news sources.”
The FTC’s allegations of bias, even if true, are ultimately irrelevant. The FTC has no authority to regulate the speech that Apple News chooses to curate. This is core First Amendment territory that even the FTC is forced to acknowledge. Ferguson writes that the “First Amendment protects the speech of Big Tech Firms” and that the “FTC is not the speech police; we do not have the authority to require Apple or any other firm to take affirmative positions on any political issue, nor to curate new articles based on the perceived ideological or political viewpoint of the article or publication.”
If Chair Ferguson stopped there, perhaps we could appreciate that the FTC recognized its limits and its respect for the First Amendment’s protections for platforms to exercise editorial control over the speech they collate and organize.
But Chair Ferguson did not stop there. Instead, the Chair attempts an end run around the First Amendment by accusing Apple News’ curation practices of violating the FTC Act for being an unfair or deceptive trade practice. But this attack is predicated on a highly flawed theory that somehow the FTC has the ability to determine when the curation and moderation decisions of platforms are “unfair or deceptive.”
Specifically, Chair Ferguson suggests that curation practices of Apple News may be unfair or deceptive because they are not in line with Apple’s terms of service. But Apple News’ Terms of Service explicitly state—in all capital letters no less—that:
THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS… APPLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE… YOUR SOLE REMEDY AGAINST APPLE FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT.
I’m not sure Apple could have been clearer, and it would be an insult to the FTC Chair and his staff to suggest that they were incapable of finding this. The FTC letter specifically cites this document, so the FTC must know that Apple makes no promises to include a certain amount of conservative, libertarian, or any other type of content. Instead, it seems the FTC is ignoring what is in front of them to justify its baseless accusation of an unfair or deceptive trade practice.
Perhaps recognizing that this argument is not worth the paper it is printed on, the letter also suggests that Apple’s curation may still constitute an unfair or deceptive trade practice by failing to be “consistent with the reasonable expectation of consumers.” But this is no stronger than the first accusation. Do all media platforms now need to affirmatively declare their exact editorial standards or else be at risk of misleading their readers and users? Is a platform allowed to change its editorial positions or else risk being at odds with the reasonable expectations of users?” Must a bookstore justify each editorial decision about the books it stocks to the FTC? No organization forfeits its First Amendment rights because the FTC believes that users may have differing expectations about how that organization curates content.
Consumers who do not like the editorial decisions of a media or social media platform are free to use another. If someone does not like the New York Times’s editorial stance, they are free to check out the Wall Street Journal or the New York Post. If a user does not like how Apple News curates content, they can use other apps that curate content, such as GroundNews, or go straight to the outlets they prefer.
The FTC claims this work is somehow combating efforts to “censor content for ideological reasons.” But the FTC has it completely backwards, as they are the state actor working to force conformity to its ideological viewpoint. The FTC letter cites its “Request for Public Comment Regarding Technology Platform Censorship” as another example of this work. But that just shows that the FTC has deeply confused what censorship is. And Chairman Brendan Carr of the FCC also praised the FTC letter, showing how widely this corrupted view of free expression has spread among the leadership of other agencies as well.
Could Apple better serve its customers by including more conservative viewpoints? Maybe. Having worked on the content policy team at Meta, my experience is that large technology platforms have historically favored left-wing viewpoints in their curation and moderation decisions. But those decisions are not censorship; they are the core expressive rights of companies. Censorship is when the government, through force or threat of force, strips its citizens and companies of the right to express themselves as they wish.
The FTC and other government agencies should stop their censorial attempts to control online speech.
