from the found-the-censorship-industrial-complex dept
We’ve written a few times now about how the GOP’s “free speech warriors” have been waging an absolutely absurd campaign against NewsGuard, a company whose entire business model is… expressing opinions about the reliability of news sources. You know, speech. The kind of thing that’s supposed to be protected by that First Amendment thing the GOP pretends to care so much about.
As we noted back in 2024, the entire complaint about NewsGuard boils down to: some conservative news sites got poor ratings, and that made people who relied on those ratings less likely to advertise on those sites. It’s funny how MAGA seems to get so upset about the “marketplace of ideas” when their own ideas get rejected. NewsGuard says “we think this source is unreliable,” advertisers say “okay, we’d rather not be associated with unreliable sources,” and the rated sites get mad about it.
But now the Trump administration’s FTC, led by Chairman Andrew Ferguson, has decided to transform that complaint into an actual government censorship campaign. And NewsGuard, represented by FIRE’s lawyers, is suing to stop it, as first reported in the Washington Post.
The complaint lays out a fairly astonishing abuse of government power. Let’s start with the Civil Investigative Demand (fancy term for a subpoena) the FTC sent to NewsGuard last May. It’s basically a demand for every document the company has ever created or received since its founding in 2018:
The CID requires production of “all documents relating to NewsGuard’s News Reliability Ratings and any other rating[s];” identification of all NewsGuard customers; and essentially all communications from or to NewsGuard.
And it gets worse:
The Specifications go further, demanding all materials about NewsGuard’s work product and methodology, including data sets; all documents about websites and news sources rated; all ratings and reviews issued; all communications regarding ratings; any and all analyses of the effects of NewsGuard’s ratings on advertisers and publishers; and any studies relating to social media or digital advertising
Among its all-inclusive document demands, the CID also requires production of information, materials, and communications relating to NewsGuard’s journalism and reporting, including reporters’ notes and sources.
The FTC is demanding reporters’ notes. From a journalism organization. Because it doesn’t like the opinions that organization expresses. That should be a First Amendment five-alarm fire. I mean, imagine the years of screaming we’d all be subjected to if the Biden admin had demanded reporters’ notes from Fox News.
Oh, and what was the stated basis for this investigation? According to NewsGuard’s complaint, the FTC wouldn’t even tell them, despite it being required by law.
Under the FTC Act, the agency was required to state the specific conduct constituting an alleged violation that is the subject of investigation and the provision of law applicable to such violation. 15 U.S.C. § 57b-1(c)(2). The FTC did not do that in the NewsGuard CID, leaving the company to guess about what the agency alleged was at issue or how it could have anything to do with legitimate enforcement of antitrust or competition laws.
In other words: “we’re investigating you, but we won’t tell you why or what law you allegedly violated.”
Right about here I’ll remind you that when FTC chair Andrew Ferguson applied for the job he promised to “protect freedom of speech” and “end… politically motivated investigations.” Of course, the full quote was “end Lina Khan’s politically motivated investigations”—leaving his own politically motivated investigations as fair game.
NewsGuard tried to work with the FTC for seven months, participating in ten meet-and-confer discussions and producing over 40,000 pages of documents. And what did the FTC do? Kept demanding more, including those customer lists and communications, while refusing to explain what any of this had to do with antitrust law.
Remember, NewsGuard’s share of the “brand safety” market is, according to the complaint, less than 0.1%. The idea that this tiny company is somehow engaged in anticompetitive behavior that requires the FTC to demand every document it’s ever created is absurd on its face.
Then, while NewsGuard was trying to cooperate with the investigation, the FTC was also using its merger review authority to create what amounts to a government blacklist of NewsGuard.
When advertising giants Omnicom and IPG wanted to merge, the FTC conditioned approval on the companies agreeing not to use any service that “reflects viewpoints as to the veracity of news reporting and adherence to journalistic standards or ethics.”
That’s not particularly subtle. That’s a condition specifically designed to prevent Omnicom from doing business with NewsGuard. The complaint notes that the original draft order didn’t quite capture NewsGuard, so Newsmax—yes, the same Newsmax that’s been mad about its poor NewsGuard rating—filed comments urging the FTC to expand the language. And the FTC did exactly that.
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 conservativeleaning 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.” Newsmax admitted its comments and advocacy to the FTC were specifically targeted at NewsGuard.
[….]
The FTC subsequently issued a revised order removing terms about using third-party services with “political or ideological bias.” Instead, the FTC revised the Consent Order to prohibit the merged Omnicom entity or its ad agencies from using third-party services that evaluate “viewpoints as to the veracity of news reporting” and “adherence to journalistic standards or ethics.”
In its press release announcing the final Consent Order, the FTC stated that it revised the order “in response to public comments.” But the only public comments advocating such censure came from Newsmax and groups it funds…
The complaint notes, somewhat dryly, that First Amendment scholars and free speech organizations had also submitted comments pointing out how the proposed order was unconstitutional. But somehow, Ferguson and the FTC ignored those. The only change they made seemed to be the one Newsmax and friends demanded: the punishment of NewsGuard for its First Amendment-protected speech.
So let’s be clear about what happened here: A news organization that gives ratings to other news organizations gave a bad rating to Newsmax based on its own criteria. (Shocking, I know, given Newsmax’s sterling commitment to journalistic standards.) Newsmax complained to the government. The government then used its regulatory power to (1) launch a burdensome fishing expedition designed to bleed NewsGuard financially, and (2) literally prohibit a major potential customer from doing business with NewsGuard.
This is textbook First Amendment retaliation. The government is using its regulatory power to punish a private company for expressing opinions it disagrees with.
And Chairman Ferguson hasn’t exactly been coy about his intentions. Even before becoming FTC chair, he was publicly stating that the FTC should use its “tremendous array of investigative tools” and “coercive power” to get companies to “Do what we say.” As the complaint notes:
In an April 2025 interview, Chairman Ferguson explained how the FTC could use its “tremendous array of investigative tools” and “coercive power—formal and informal” to demand compliance to its views about supposed online “censorship.” Ferguson laid out a roadmap of the tactics his FTC would ultimately use against NewsGuard: “The regulators can show up, they can audit, they can investigate, they can cost you a lot of money, and the path of least resistance is: ‘Do what we say’.”
And:
Ferguson’s comments are similar to not-so-veiled threats by FCC Chairman Carr about Jimmy Kimmel’s late-night comedy monologue mentioning Charlie Kirk, which the administration found objectionable. Carr stated that ABC and its affiliates had to “find ways to change conduct and take action … on Kimmel or there’s going to be additional work for the FCC ahead,” and “we can do this the easy way or the hard way.”
This is the “free speech” party. This is what they mean by free speech: the freedom to agree with them, or face the consequences, brought to you mob-style.
The legal case here seems pretty straightforward. The DC Circuit already ruled last year, in the somewhat similar Media Matters case, that the FTC’s similar investigation of that organization was “a government campaign of retaliation” that was “infringing exercise of their First Amendment rights.” The district court in DC has already granted a preliminary injunction halting the FTC’s investigation of Media Matters.
NewsGuard’s case involves basically the same playbook. Government officials publicly expressed hostility to NewsGuard’s speech. Then they launched an investigation with demands far beyond any legitimate regulatory purpose. Then they used their merger review authority to directly prohibit companies from doing business with NewsGuard.
The Supreme Court was unanimous in the Vullo case in 2024 that government officials can’t “coerce a private party to punish or suppress disfavored speech on her behalf.” Using merger conditions to blacklist a company because you don’t like its journalism is exactly that.
It’s genuinely good to see NewsGuard fight back here. I’ve been somewhat critical of NewsGuard’s methodology in the past, but their right to express their opinions about news sources is protected speech, full stop. The government doesn’t get to punish them because some of those opinions hurt the feelings of conservative media outlets. (Also, as I always point out, NewsGuard was founded by the former publisher of the Wall Street Journal, the idea that he’s some “woke leftist” trying to suppress “conservative” news orgs is silly on its face).
And, honestly, this case reveals just how absurd the whole “censorship industrial complex” narrative has always been. The actual censorship happening here isn’t NewsGuard expressing opinions about news quality. It’s the government using its regulatory power to punish NewsGuard for expressing those opinions.
As the complaint aptly notes:
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
That’s exactly right. The government using its power to punish private companies for expressing opinions is censorship. Private companies expressing opinions is not.
Filed Under: 1st amendment, andrew ferguson, antitrust, censorship, ftc, investigation, news ratings, opinions
Companies: newsguard, newsmax, omnicom
