• by Wendy Davis , Staff Writer, Yesterday

The Federal Trade Commission's Andrew Ferguson has been investigating supposed "censorship" by online platforms since he took the helm of the agency last year.

In one of his first acts as chair, he asked social media users to tell the FTC whether they had suffered “adverse actions” -- such as demonetization or “shadow banning” -- due to their speech or political affiliations. At the time, he declared via tweet that "Big Tech censorship" was "potentially illegal."

Now, the agency reportedly is considering suing Google's YouTube over its content-moderation decisions. Specifically, the FTC is probing whether YouTube "violated its own user policies" by removing or demoting content uploaded by users, according to Bloomberg, which based its report on unnamed people familiar with the matter.

YouTube famously suspended President Trump's account after the January 6, 2021 riot at the Capitol, and also suspended accounts of prominent anti-vaxxers later that year.

The agency's theory appears to be that YouTube's stated content policies duped people into signing up for the service and posting videos. It's not clear which content policies the FTC plans to cite in a potential lawsuit -- or even whether the agency will pull the trigger and actually file suit. Bloomberg reports that some career staff "privately expressed disagreement" with suing.

But if the agency moves forward with litigation, and if Google fights the case, the company will almost certainly argue that editorial decisions -- including whether to host or remove videos -- are protected by the First Amendment.

The Supreme Court has already weighed in on the side of tech companies in a closely related matter.

In that case, which involved state laws that would have required platforms to host certain speech, the court made clear that social media companies have a constitutional right to wield control over content on their platforms.

The First Amendment “does not go on leave when social media are involved,” Justice Elena Kagan wrote for the majority in 2024.

“This Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression -- to 'un-bias' what it thinks biased, rather than to leave such judgments to speakers and their audiences,” she wrote.

Also, multiple federal judges have already rejected claims by people who sued tech companies including Meta and Google for allegedly suppressing speech.

In one case, anti-vax doctor Joseph Mercola claimed in a federal lawsuit that Google broke its contract with him by canceling his YouTube account, and preventing him from accessing the videos he had uploaded, without “reasonable” notice.

Mercola was one of several high-profile vaccine critics whose accounts were taken down by YouTube in September 2021, when the company banned videos claiming that vaccines cause harmful side effects or don't work.

A trial judge threw out the lawsuit, ruling that even if Mercola's allegations were proven true, they wouldn't show that YouTube broke a contract. She said YouTube's terms provided that it was not obligated to host content, and could remove content that it believed might harm the company or its users.

The 9th Circuit Court of Appeals upheld that decision, writing that Google's terms of service provided that the company could take down any content it reasonably believed was harmful.

In another example, the 9th Circuit refused to revive Prager University's claim that YouTube wrongly suppressed conservative clips. Among other arguments, Prager alleged YouTube engaged in false advertising by boasting about its free-speech policies.

At the time, YouTube's "about" section included the statement: “We believe that everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories.”

The appellate court said such "lofty but vague" statements were puffery -- meaning they weren't the kind of factual statements that could support a false advertising claim.

But even if Google has the law on its side, the company might settle with the FTC just to avoid a lengthy court battle.

Berin Szoka, president of the think tank TechFreedom, suggests he believes the FTC expects such an outcome.

"Chair Ferguson is weaponizing the cost of litigation to punish Google for moderating Trump and other lawful but truly awful speech," he tweeted today.