• by Wendy Davis , Yesterday

The Federal Trade Commission is seeking to lift a block on its investigation of watchdog Media Matters and its possible role in what the agency describes "potentially unlawful advertiser boycotts."

"The immediate and irreparable harm to the FTC’s ad boycott investigation calls for urgent intervention by this court," the agency writes in an emergency motion filed Tuesday with the D.C. Circuit Court of Appeals.

The FTC adds that the injunction prevents it "from taking even basic steps to investigate Media Matters’ information about, or involvement in, potentially unlawful advertiser boycotts."

The agency's papers come more than one week after U.S. District Court Judge Sparkle Sooknanan in Washington, D.C. prohibited the agency from attempting to enforce a demand that Media Matters turn over a trove of information -- including all documents relating to the Interactive Advertising Bureau, World Federation of Advertisers and its now defunct Global Alliance for Responsible Media, Check My Ads, the Center for Countering Digital Hate, Double Verify and NewsGuard, among other groups.

In June, Media Matters sued to block the FTC's investigation, alleging that the agency undertook the probe in retaliation for a November 2023 report that ads for Apple, Bravo, IBM, Oracle and other brands were being placed next to pro-Nazi posts on X, formerly Twitter.

The watchdog also made the broader argument that the FTC's current campaign against "advertiser boycotts" is actually "a politically motivated response to protected speech."

FTC Chair Ferguson "has made clear that, in targeting what he calls 'advertiser boycotts,' he is actually concerned about content moderation advocacy (i.e., protected speech) and independent economic decisions made by advertisers who do not want their ads appearing next to extremist content (i.e., lawful business decisions)," Media Matters wrote in papers filed last month.

When Sooknanan issued the injunction, she said Media Matters is likely to prove that the FTC acted with "retaliatory animus," and that its civil investigative demand (comparable to a subpoena) therefore violates the First Amendment.

The FTC is now arguing to the appellate court both that Sooknanan's injunction was premature because it hadn't attempted to enforce the demand for information, and that Sooknanan incorrectly determined that investigation was undertaken in retaliation for Media Matters' November 2023 report regarding ads on X.

The FTC specifically argues that the demand sent to Media Matters "is part of a broader investigation into an area of significant concern for the FTC: advertiser boycotts."

"This investigation features a total of seventeen currently outstanding [civil investigative demands], including several directed to advertising trade associations, several directed to brand safety/suitability rating organizations, and several to policy and advocacy groups like Media Matters," the FTC writes.

The agency adds that its investigation stems from concerns regarding "potential anticompetitive collusion in the digital advertising industry to withhold advertising from certain disfavored media."

"Such concerted action would likely violate the federal antitrust laws and harm the public by reducing competition in markets for advertising purchasing and other advertising-related products or services, which could in turn reduce consumer choice in content, degrade the quality of advertisements, and ultimately stifle debate on matters of public importance," the agency writes.

"The Commission therefore opened a broad investigation into potential boycotts in digital advertising against certain media (that is, concerted refusals to deal with those media) by using agreed-upon definitions of subjective terms such as 'misinformation' or 'brand safety,'" the FTC adds.

The D.C. Circuit has asked Media Matters to respond to the FTC's request by September 2.