The intersection of antitrust enforcement and free speech is once again at the center of a growing policy debate in Washington.
In a new RealClearMarkets column, Market Institute President Charles Sauer examines the Federal Trade Commission’s investigation into NewsGuard — and explains why the case represents a troubling expansion of government power into protected speech and private association.
At issue is whether a private organization’s opinions about media credibility can be treated as an antitrust violation — a theory Sauer argues conflicts directly with longstanding First Amendment protections.
Government Power vs. Private Speech
NewsGuard, a media-rating organization that evaluates the credibility and transparency of news outlets, has filed suit against the FTC, alleging violations of its constitutional rights.
As Sauer explains, the agency’s case rests on the claim that NewsGuard’s work with advertisers amounts to an unlawful boycott:
“The FTC claims that NewsGuard’s ratings are biased against conservatives and that its work with advertising agencies is a conspiracy to silence conservative views. However, this claim is not supported by facts.”
In reality, NewsGuard has awarded high credibility ratings to a range of conservative and libertarian outlets, undermining the central premise of the investigation.
But Sauer argues that even if bias existed, the constitutional issue would remain unchanged.
“Boycotts of organizations based on their political views is not an illegal conspiracy to restrain trade, but an activity protected by the First Amendment.”
A Long American Tradition of Boycotts
Political boycotts are not new — they are foundational to American political expression. Sauer traces their history from the Boston Tea Party through civil rights activism and modern consumer advocacy campaigns across the ideological spectrum.
Private actors, he notes, retain the right to decide whom they associate or do business with.
The Supreme Court reinforced this principle recently in Moody v. NetChoice, affirming protections for organizations that offer opinions about speech and content moderation:
“The Constitution protects the expression of groups like NewsGuard, which simply provides opinions on the credibility of content and information sources that other services may choose to adopt or ignore at their discretion.”
That final point — advertiser choice — exposes what Sauer sees as the fundamental weakness in the FTC’s argument.
When Antitrust Becomes Censorship
According to Sauer, the FTC’s theory effectively reverses the meaning of censorship.
“Censorship is the use of force to silence speech. As a private organization, NewsGuard has no power to force advertisers to accept its boycott recommendations.”
Instead, NewsGuard persuades — while the government compels.
By attempting to block NewsGuard from sharing its views, Sauer argues, regulators risk turning antitrust enforcement into a tool for suppressing speech itself.
“By trying to use antitrust laws to stop NewsGuard from sharing its views on other news sources… Chair Ferguson is engaging in censorship.”
A Troubling Demand for Disclosure
The investigation’s document requests raise additional constitutional concerns. The FTC has reportedly demanded extensive internal records, including subscriber lists and communications dating back to NewsGuard’s founding.
Sauer warns that compelled disclosure threatens freedom of association:
“The demand that NewsGuard turn over its subscriber lists is especially disturbing, as it could make advertisers reluctant to subscribe… for fear of angering federal regulatory agencies.”
He points to the Supreme Court’s landmark decision in NAACP v. Patterson, which protected membership anonymity as essential to safeguarding political advocacy.
“Inviolability of privacy in group association may… be indispensable to preservation of freedom of association.”
A Dangerous Precedent
Sauer concludes that the case risks establishing a precedent that could ultimately be used against groups across the political spectrum.
After a prior FTC investigation targeting Media Matters was ruled unconstitutional, pursuing a similar theory again raises serious concerns about regulatory overreach.
“Hopefully, this new investigation will meet the same fate and Chair Ferguson will start acting like a constitutional conservative — not a Khanservative.”
Read more in RealClearMarkets by clicking here.
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