Oh Look, The MAGA FTC Built The Censorship Industrial Complex It Was Screaming About

from the pretty-sure-that’s-censorship dept

We’ve been covering the Trump administration’s escalating campaign against NewsGuard for a while now. It started with the House Oversight Committee’s absurd investigation of the company for the crime of expressing opinions about news reliability. But then there was the FTC’s burdensome fishing expedition and blocking of the merger of two advertising giants — Omnicom and IPG — unless they stopped working with NewsGuard. That one prompted NewsGuard to sue the agency. Now the FTC, joined by a coalition of eight red states, has finished the job, getting the three other “big” ad agencies to agree not to use NewsGuard (or the Global Disinformation Index).

That means every single one of the five major advertising agency holding companies in the United States has now been successfully pressured by the federal government to stop using NewsGuard’s ratings. All of them. Entirely because NewsGuard expressed opinions about conservative news outlets that some powerful people found inconvenient.

I seem to recall some fairly dramatic freakouts from supposed ‘free speech absolutists’ about government pressure on media organizations constituting a massive First Amendment crisis. Strange that none of those people are speaking up about this. Many seem downright supportive.

I also seem to recall that in NRA v. Vullo, just two years ago, the Supreme Court said that government employees are not allowed to threaten companies not to do business with others because of disfavored opinions. The MAGA crowd celebrated that ruling. And now they’re doing the exact same thing that Vullo was accused of, except even more directly.

The United States government has successfully prevented a private journalism organization from doing business with the entire major advertising industry. All because NewsGuard expressed opinions about the reliability of news sources, and some of those opinions hurt the feelings of conservative media outlets — most notably Newsmax.

The FTC is leaning hard on an extraordinarily stretched interpretation of antitrust law to pull this off. The FTC’s complaint alleges that the three remaining major ad agencies — WPP, Publicis, and Dentsu — colluded through trade associations to establish common “brand safety” standards, and that this collusion constituted an illegal restraint of trade under the Sherman Act. Since they’d already gotten the other two, Omnicom and IPG, to agree to stop using NewsGuard as a condition of their merger approval, the full set is covered.

FTC Chairman Andrew Ferguson, who promised when he took the job to “end politically motivated investigations” (he meant Lina Khan’s, not his own), offered some truly rich language in the press release:

“The ad agencies’ brand-safety conspiracy turned competition in the market for ad-buying services on its head,” said Chairman Andrew N. Ferguson. “The antitrust laws guarantee participation in a market free from conduct, such as economic boycotts, that distort the fundamental competitive pressures that promote lower prices, higher quality products and increased innovation.

“As we explain in our complaint, the brand-safety agreement limited competition in the market for ad-buying services and deprived advertisers of the benefits of differentiated brand-safety standards that could be tailored to their unique advertising inventory,” he continued. “This unlawful collusion not only damaged our marketplace, but also distorted the marketplace of ideas by discriminating against speech and ideas that fell below the unlawfully agreed-upon floor. The proposed order remedies the dangers inherent to collusive practices and restores competition to the digital news ecosystem.”

The ‘marketplace of ideas’ — that’s a fun phrase to invoke while using government regulatory power to prevent private companies from subscribing to a journalism ratings service because you don’t like what the ratings say. Ferguson is claiming to restore the marketplace of ideas by directly removing a participant from it.

Strip away the out-of-context, ominous-sounding internal email quotes, and the complaint describes something far less scandalous than the FTC wants you to believe.

The advertising industry, through trade associations (the 4As’ Advertiser Protection Bureau and the World Federation of Advertisers’ GARM initiative), developed common standards for what kinds of content advertisers might not want their brands associated with. This is a practice that has existed in advertising forever — brands don’t want their logos next to terrorist recruitment content, pornography, or content promoting illegal activity. That’s what “brand safety” means. The industry then expanded those standards over time to include categories like “misinformation” — and, in doing so, some individual agencies chose to use NewsGuard’s ratings, among other tools, to help implement those standards.

The complaint makes this sound terrifying through selective quoting. The most dramatic bit is this, from GARM, cautioning participants about discussing their coordination publicly:

The first rule of Fight Club is: You do not talk about Fight Club. The second rule of Fight Club is: You do not talk about Fight Club.

That’s a colorful quote! But it’s also a joke. Fairly obviously. What it describes — trade associations encouraging discretion about internal industry discussions — is routine. What matters is whether the underlying conduct is actually anticompetitive in a way the Sherman Act cares about. And that’s where the complaint falls apart. This was about setting brand safety standards. Not about preventing competition.

In a real antitrust case involving a cartel, you’d see competitors agreeing to fix prices, divide markets, or restrict output to inflate profits at consumers’ expense. What the FTC describes here is companies subscribing to the same third-party ratings service and incorporating it into their own, independent brand safety strategies. That’s like saying five banks are running an illegal conspiracy because they all use FICO scores and independently decided not to lend to borrowers with scores below 600. Common inputs don’t equal coordinated outputs. The FTC’s own complaint includes evidence of the agencies competing on brand safety — a Publicis executive explicitly strategized about creating a better brand safety guide than WPP’s, and recommended distributing it only internally to maintain competitive advantage:

She further recommended, with emphasis, “only distribut[ing] this internally and for clients,” not putting it “publically on our website as GroupM [WPP] did.”

That’s competition. That’s exactly what a market without collusion looks like. Companies see what their rivals are doing, and try to do it better.

The complaint acknowledges that the Interactive Advertising Bureau itself recognized that “Advertising quality is in the eye of the beholder” and recommended “a nuanced approach rather than blocking entire content categories or keywords.” The agencies were, in fact, trying to develop exactly such nuanced approaches — and the evidence the FTC presents shows them debating and disagreeing about how to handle “misinformation” as a category. One agency executive described the topic as “complicated and important” and suggested tabling it. Others had “a ton of back and forth discussion” and were “close, but not 100% there.” This is just what happens when industry participants work through a difficult issue. It can look an awful lot like what the FTC calls conspiracy if you strip away enough context and squint hard enough.

The real tell, however, is the remedy. If the FTC genuinely believed the problem was anticompetitive coordination between ad agencies, the remedy would be straightforward — “stop coordinating and compete independently on brand safety standards.” Make your own decisions. Develop your own tools. Compete.

That’s not what the consent decree says. Instead, the order will “ensure that each of the biggest U.S. advertising agencies are prevented from engaging in agreements that would set common brand safety standards or restrict advertising based on biased and politically motivated criteria.” And in the Omnicom/IPG merger conditions, the language was even more explicit: The merged company was prohibited from using any service that “reflects viewpoints as to the veracity of news reporting and adherence to journalistic standards or ethics.”

That is entirely about punishing companies that ranked conservative news sources as untrustworthy. It’s about punishing speech.

The government is prohibiting private companies from using services that express viewpoints about the veracity of news reporting. That’s a content-based restriction on speech, imposed through regulatory coercion, targeting specific viewpoints the government disfavors. In any other context, the people pushing this would call it censorship — because that’s exactly what it is.

And we know this remedy was specifically tailored to target NewsGuard because Newsmax told us so. As we covered when NewsGuard filed its lawsuit against the FTC, when the original Omnicom/IPG merger conditions didn’t quite capture NewsGuard, Newsmax swooped in to fix that. As detailed in the lawsuit:

Newsmax was not subtle about its aim. Its fourteen-page letter mentioned NewsGuard more than a dozen times. Newsmax echoed Chairman Ferguson’s repeated statements that NewsGuard’s reviews and ratings of news sources based on journalistic standards were “biased” because some conservative­-leaning websites and publications scored poorly.

Not content to rely on the official FTC comment process, Newsmax took to the internet to lobby Chairman Ferguson, members of Congress, and the President. In posts on X directed to Chairman Ferguson, Newsmax asserted the FTC’s proposed order was inadequate because it “makes no mention of ‘censorship’ or ‘targeting conservatives’ and ‘[f]ully allows Omnicom to use left-wing NewsGuard.”

The FTC, in its own press release, stated that it revised the order “in response to public comments,” though the only significant revision that matched a public comment was that one from Newsmax about NewsGuard. They didn’t revise the order in response to the First Amendment scholars and free speech organizations who submitted comments pointing out the obvious constitutional problems. Only in response to Newsmax whining about NewsGuard calling out their failures in journalistic behavior.

The government regulatory agency changed its order at the direction of a media company that was mad about its review score. And now has applied the same framework across the entire industry.

This whole pattern — the origin story of this campaign — deserves emphasis because it exposes the mechanism. NewsGuard, founded by Steven Brill and Gordon Crovitz (the former publisher of the Wall Street Journal, which makes the “woke leftist” framing particularly absurd), rates news sources based on disclosed journalistic criteria. Even if you disagree with NewsGuard’s criteria, it’s still just… their opinion. Their speech. Some conservative outlets scored poorly. Those outlets complained to sympathetic politicians. Those politicians launched investigations. The FTC chair, who had already publicly stated he intended to use the FTC’s “tremendous array of investigative tools” and “coercive power” to make companies “Do what we say,” sent NewsGuard a sweeping subpoena for essentially every document the company had ever produced — including reporters’ notes and sources — while refusing to even tell NewsGuard what law it allegedly violated. Then the FTC used its merger review authority to ban NewsGuard’s biggest potential customers from doing business with it. And now, with this latest action, the ban extends to every major ad agency in the country.

As NewsGuard’s lawsuit put it:

By accusing NewsGuard of providing “biased” evaluations of news sites, Chairman Ferguson has inverted the relationship between the government and the First Amendment. NewsGuard is a private business that offers assessments of the quality of news sites based on disclosed journalistic criteria. As a matter of law, NewsGuard cannot be a censor. But by asserting FTC control over the market for NewsGuard’s services, Chairman Ferguson has embraced the censor’s role.

This claim that critical speech of favored individuals or organizations is “censorship” is at the heart of the modern GOP’s entire approach to “free speech.” Private companies expressing opinions they don’t like? Censorship. The government using regulatory power to punish private companies for expressing those opinions? Restoring the marketplace of ideas. Up is down. Speech is censorship. Censorship is freedom.

And just to put a final bow on the cynicism here: this complaint was filed in the Northern District of Texas, Fort Worth Division. If that court sounds familiar, it’s because it’s the favored venue for conservative forum-shopping, home to Judge Reed O’Connor, who has been the go-to jurist for everything from challenges to the ACA to Elon Musk’s SLAPP suit against Media Matters. The FTC almost certainly chose this seemingly random venue because they know exactly what kind of judicial scrutiny they’ll face, which is to say: none worth worrying about.

The Commission vote on this action was 1-0-1. Because, remember, Donald Trump illegally fired the two Democratic FTC members and has made no real move to replace them. All that’s left is Chairman Ferguson and the also problematic Mark Meador, who recused himself from this vote. In other words, this “vote” was simply Ferguson agreeing with himself, approving what amounts to a government-imposed blacklist of a journalism company, backed by the attorneys general of eight states, all for the offense of expressing opinions about news quality that some powerful people found inconvenient.

For the record: I’ve been somewhat critical of NewsGuard’s methodology in the past. To me, their rating system has real limitations, and I think people should take any individual rating with appropriate skepticism. In response to me saying that, some at the company have expressed their own displeasure about my criticism of their methodology. But that’s kind of the whole point. My criticism of NewsGuard is more speech. NewsGuard’s ratings are more speech. Advertisers choosing whether or not to use those ratings are exercising their own rights. Every layer of this is speech and association, all the way down. The one layer that has no business being here is the federal government deciding which speech-about-speech private companies are allowed to subscribe to.

The party that spent years screaming about the “censorship industrial complex” — a supposed conspiracy between government and private entities to suppress disfavored speech — just built an actual censorship apparatus targeting a journalism organization. They used a tortured antitrust theory as the weapon, out-of-context trade association emails as the pretext, and a hand-picked court as the rubber stamp.

And they did it all while claiming to defend free speech.

Filed Under: 1st amendment, andrew ferguson, antitrust, censorship, ftc, journalism, opinions, ratings, vullo

Companies: dentsu, garm, global disinformation index, ipg, newsguard, newsmax, omnicom, publicis, world federation of advertisers, wpp