antitrust – Techdirt (original) (raw)

Trump 2.0 Is Proving To Be A Bonanza For More Harmful Consolidation Among Broadband Giants

from the do-not-pass-go,-do-not-collect-$200 dept

Despite the ongoing fake promise of “populism,” so far Trump 2.0 has proven to be a bonanza for telecom giants seeking to get even bigger. As usual that means higher broadband prices and shittier broadband service are just over the horizon.

As a reward for promising to be more racist, Verizon recently saw its 20billionmergerwithFrontierapprovedbytheTrumpFCC.ComcastisrumoredtobeeyeingamergerwithT−Mobile.AndcablegiantCharterispushingforanew[20 billion merger with Frontier approved by the Trump FCC. Comcast is rumored to be eyeing a merger with T-Mobile. And cable giant Charter is pushing for a new [20billionmergerwithFrontierapprovedbytheTrumpFCC.ComcastisrumoredtobeeyeingamergerwithT−Mobile.AndcablegiantCharterispushingforanew34.5 billion merger with Cox Communications. As usual, the two companies are promising that more industry mergers will somehow make the sector more competitive:

“This combination will augment our ability to innovate and provide high-quality, competitively priced products, delivered with outstanding customer service, to millions of homes and businesses,” Charter CEO Chris Winfrey said in the press release. “We will continue to deliver high-value products that save American families money, and we’ll onshore jobs from overseas to create new, good-paying careers for U.S. employees.”

We’ve got forty years of hard data illustrating that this is not what happens when you let the U.S. telecom industry consolidate. Even if two merging companies don’t directly compete, the resulting telecom companies tend to be more politically powerful than ever. And one of their favorite pastimes involves abusing that political power to crush all competition and regulatory oversight.

Charter is, you might recall, the company that almost got kicked out of New York State after it lied to regulators repeatedly about whether it was meeting requirements fixed to its merger with Time Warner Cable.

These mergers never serve the public interest. And America’s historically too corrupt to care. Such consolidation helps temporarily boost stock valuations and generate rich tax cuts, while overcompensated executives celebrate their savvy deal-making acumen. The public harms of consolidation is then swept under the carpet with the help of an equally consolidated corporate press and captured regulators.

Wash, rinse, repeat.

So Trump 2.0 is both encouraging more of this harmful consolidation at the same time they’re taking an absolute hatchet to whatever was left of regulatory autonomy and corporate oversight. It’s the culmination of a generation of delusion by right wingers and Libertarian “free market” guys who (quite falsely) claim that unchecked monopolization results in near-mystical Utopian outcomes.

It doesn’t: letting telecom giants like Verizon and Comcast get bigger while you dismantle government oversight only results in those giants doubling down on existing bad behaviors. Again, that always means exploiting regional geographic monopolies and duopolies to drive up prices, undermining small business, fraudulently obtaining more taxpayer subsidies, and eroding the exact free market competition the supporters of these deals claim to be such huge proponents of. It’s utterly theatrical.

The same thing is playing out in media, with companies like Time Warner Discovery calling for even more mergers and greater media consolidation under Trump — at a time when the enshittification from such consolidation couldn’t be any more apparent. That’s simultaneously resulting in shittier journalism, higher prices, lower quality choices, and a flood of corporatist bullshit and right wing propaganda.

U.S. broadband is a patchwork of regional monopolies, coddled by corrupt federal and state lawmakers, who’ve worked tirelessly to demolish anything closely resembling competition in local broadband markets. U.S. media is a lazy patchwork of consolidated corporate giants obsessed with “growth for growth’s sake.” More mindless consolidation is the exact opposite of what these industries need.

We’ve taken that already broken model and somehow managed to make it dumber and more harmful under Trump 2.0, by fusing it all to the erratic whims of authoritarian zealots. Zealots looking to further exploit the merger approval process in exchange for these companies’ promises that they’ll be more racist and shittier than ever. Great stuff. What could go wrong?

Filed Under: antitrust, broadband, competition, consolidation, corruption, fcc, mergers, oversight, racism, regulation, trump
Companies: charter, cox communications

Texas Will Soon Be The 9th State To Pass A Popular ‘Right To Repair’ Law

from the fix-your-own-shit dept

Wed, Jun 4th 2025 03:53pm - Karl Bode

While U.S. consumer protection is generally an historic hot mess right now, the “right to repair” movement — making it easier and cheaper to repair the things you own — continues to make steady inroads thanks to widespread, bipartisan annoyance at giant companies trying to monopolize repair in creative and obnoxious ways.

Washington State just became the eighth state to pass a new law theoretically making it easier and cheaper to repair the technology you own. Now, barring a veto from Governor Abbott, Texas is poised to be the ninth state to do so after the State’s new right to repair law (HB2963) passed a vote in a the Texas state Senate last week 31-0. That comes after the House passed the legislation 126-0.

Again, this movement continues to make inroads because anti-consumer repair monopolies annoy everybody. Unlike many consumer reform efforts, companies haven’t had much success (yet) scaring the public away from “right to repair” reforms, despite a lot of scary (and false) claims about how such laws pose a risk to consumer security and privacy or aid sexual predators.

Texas’s new law requires manufacturers to make spare parts, manuals and repair tools available to consumers and independent shops. Consumer groups and “right to repair” advocates are unsurprisingly excited:

“When you can’t fix something, you either have to buy a new one or do without. It drives up waste and costs. People are tired of throwing away things they prefer to fix, and clearly this is a message that has gotten through to lawmakers,” said Nathan Proctor, PIRG’s Senior Right to Repair Campaign Director. “Congratulations to Rep. Capriglione for his excellent work standing up for the rights of product owners, and the small repair shops all across Texas. This is a Texas-sized win.”

This is definite progress, and I hate to be a buzzkill, but it’s worth reiterating that of the 8 states that have passed right to repair reforms so far, not a single one has actually enforced them in any meaningful way. This despite no shortage of bad corporate actors working overtime to kill independent repair shops, make manuals and parts hard to find, use obnoxious DRM, or claim that repairing your own stuff violates warranty.

Many states are facing unprecedented legal and financial challenges thanks to new Trump-triggered legal fights across everything from environmental law to healthcare. As a result most states aren’t going to be keen to launch costly new legal battles against deep-pocketed corporations.

Republican states like Texas, in particular, aren’t likely to say…start picking meaningful new fights with Apple or Sony. That runs in pretty stark contrast to the central Republican mission to effectively demolish whatever’s left of regulatory independence, consumer protection, and corporate oversight. They like to pick fights with “big tech,” but only in a bid to bully them into doing nothing about racist propaganda.

At some point at least a portion of the activism calories spent passing these right to repair laws needs to be redirected to yelling at states to actually enforce them, if the overall movement itself is to have any actual meaning and the laws are seen as anything more than populist set dressing.

Filed Under: antitrust, consumers, hardware, monopoly, right to repair, software, texas, tinker

What’s Left Of CBS Just Can’t Stop Kissing Donald Trump’s Ass

from the “Pathetic,”-he-said.-“That's-what-it-is.-Pathetic.” dept

Tue, Jun 3rd 2025 05:36am - Karl Bode

Let’s be clear: CBS/Paramount, like many corporate U.S. media outlets, initially responded to the threat of authoritarian rule by kissing Republican ass in a bid to curry favor. CBS management has long made it clear that access and ad engagement are significantly more important than the truth. But the company’s looming acquisition by Skydance has taken existing fecklessness to the next level.

It’s looking increasingly likely that CBS/Paramount executives are going to give Donald Trump a huge pile of money to not only gain FCC approval of their $8 billion merger with Skydance, but to settle Trump’s completely bogus lawsuit(s) trying to bully the company away from doing basic journalism.

There’s even some reporting from the right wing NY Post (for whatever that’s worth) claiming that CBS/Paramount executives are considering promising Trump that they’ll run free “public service announcements” (read: pro-Trump, right wing propaganda ads) to finalize the settlement:

“A proposal to break the legal quagmire between CBS News parent Paramount and President Trump involves the Tiffany Network running millions of dollars in public service ads for causes that appeal to the administration, On The Money has learned.”

Pathetic. CBS majority owner Shari Redstone just wants to get out of the media business. The guys looking to buy CBS, most notably Larry Ellison’s son David, have been kissing Trump’s ass on the daily. There’s every indication that once CBS is acquired, they’re going to push the already fairly pathetic media arm of the company further to the right, a la Washington Post or the LA Times.

Kissing Republican ass and telling weird right wing zealots what they want to hear is where all the money is. Telling people the truth risks upsetting governments, advertisers, and billionaire ownership. It also likely results in a loss of broader advertising engagement and makes it less likely you’ll be invited to the next White House Christmas party.

As a result, all the journalists and executives left at CBS with any integrity are jumping ship. Curiously, state senators in California are launching an “investigation” into whether any part of this bizarre bribery scheme violates any state laws against bribery and unfair competition. Semafor, in typical “both sides” fashion, frames this all as a difference of bipartisan opinion:

“The settlement talks have infuriated many staff members at CBS as well as many national Democrats who believe that Paramount is caving to pressure from Trump to settle a frivolous lawsuit.”

CBS/Paramount absolutely is caving to pressure from Trump to settle a frivolous lawsuit. It’s not an opinion. They’re not being subtle about it. The Trump administration is abusing government power and trampling the constitution in order to bully the U.S. press into feckless compliance. And it’s working. Whether a California Senate inquiry will hold anybody accountable for it is another matter entirely.

This is all the culmination of decades of U.S. failures on media policy and antitrust reform. Historically bipartisan “U.S. media policy” has involved rubber stamping problematic media mergers, allowing the ad-based modern media to turn into a monolithic, ad-engagement chasing dumpster fire jam-packed with propaganda and corporatist infotainment, all managed by some of the least competent people imaginable. We spent decades paying empty lip service to real journalism, and the check is due.

The end result has been positively fatal for U.S. journalism, collective consensus, an educated public, and an informed electorate.

The only real way out of this mess is for CBS executives to find a backbone, cancel the merger, and tell the Trump administration and Brendan Carr to go fuck themselves. They can afford the fight, and they’d have plenty of support. But because that would be a bigger, more expensive hassle than throwing independent journalism and ethics in the toilet, it’s very clear which direction CBS is ultimately headed.

Filed Under: antitrust, consolidation, free speech, journalism, media, mergers, shari redstone
Companies: cbs, paramount

Judge In Apple / Epic Case Is Spitting Mad At Apple’s Willful Contempt

Back in 2021, Apple mostly won the antitrust case that Epic brought against it, and the Ninth Circuit largely agreed. The court rejected most claims about Apple’s App Store being an illegal monopoly. The company just had to make one small change: let developers tell users they could make purchases elsewhere. Simple enough.

Instead, Apple apparently decided that the best response was to design elaborate schemes to make that “elsewhere” as scary and expensive as possible, hide evidence of those schemes from the court, and then lie under oath about all of it. This strategy has worked out about as well as you’d expect, leading to what may be one of the most scathing judicial opinions you’ll ever read.

As we noted at the time, this seemed like the correct outcome. Many of the antitrust claims from Epic seemed ridiculous and the court agreed, but the provisions forbidding app developers from even communicating to users that it was possible to do non in-app purchases seemed extremely restrictive and problematic.

Apple should have been happy with this result. But Apple apparently was not. Yesterday, District Court Judge Yvonne Gonzalez Rogers issued one of the most scathing rulings I’ve ever seen a court issue, calling out what appears to be Apple’s willful decision to disobey the injunction and play games to avoid doing the little bit it was required to do.

Let’s let the judge take it from here:

To summarize: One, after trial, the Court found that Apple’s 30 percent commission “allowed it to reap supracompetitive operating margins” and was not tied to the value of its intellectual property, and thus, was anticompetitive. Apple’s response: charge a 27 percent commission (again tied to nothing) on off-app purchases, where it had previously charged nothing, and extend the commission for a period of seven days after the consumer linked-out of the app. Apple’s goal: maintain its anticompetitive revenue stream. Two, the Court had prohibited Apple from denying developers the ability to communicate with, and direct consumers to, other purchasing mechanisms. Apple’s response: impose new barriers and new requirements to increase friction and increase breakage rates with full page “scare” screens, static URLs, and generic statements. Apple’s goal: to dissuade customer usage of alternative purchase opportunities and maintain its anticompetitive revenue stream. In the end, Apple sought to maintain a revenue stream worth billions in direct defiance of this Court’s Injunction.

In stark contrast to Apple’s initial in-court testimony, contemporaneous business documents reveal that Apple knew exactly what it was doing and at every turn chose the most anticompetitive option. To hide the truth, Vice-President of Finance, Alex Roman, outright lied under oath. Internally, Phillip Schiller had advocated that Apple comply with the Injunction, but Tim Cook ignored Schiller and instead allowed Chief Financial Officer Luca Maestri and his finance team to convince him otherwise. Cook chose poorly. The real evidence, detailed herein, more than meets the clear and convincing standard to find a violation. The Court refers the matter to the United States Attorney for the Northern District of California to investigate whether criminal contempt proceedings are appropriate.

Cook chose poorly? Yikes. Being referred for criminal contempt? Double yikes.

This is an injunction, not a negotiation. There are no do-overs once a party willfully disregards a court order. Time is of the essence. The Court will not tolerate further delays. As previously ordered, Apple will not impede competition. The Court enjoins Apple from implementing its new anticompetitive acts to avoid compliance with the Injunction. Effective immediately Apple will no longer impede developers’ ability to communicate with users nor will they levy or impose a new commission on off-app purchases.

Ouch.

Apple has a history of engaging in malicious compliance to regulatory requirements, but this seems particularly egregious.

The court’s ruling reveals a deliberate three-part strategy by Apple: First, design a system that would appear compliant while actually maintaining their monopoly. Second, hide evidence of this strategy through dubious privilege claims. And finally, when caught, lie about it under oath.

The deliberate nature of Apple’s defiance is perhaps best captured in internal communications about their “scare screen” strategy.

In Slack communications dated November 16, 2021, the Apple employees crafting the warning screen for Project Michigan discussed how best to frame its language. (CX-206.) Mr. Onak suggested the warning screen should include the language: “By continuing on the web, you will leave the app and be taken to an external website” because “‘external website’ sounds scary, so execs will love it.” (Id. at .2.) From Mr. Onak’s perspective, of the “execs” on the project, Mr. Schiller was at the top. (Feb. 2025 Tr. 1340:4–6 (Onak).) One employee further wrote, “ to make your version even worse you could add the developer name rather than the app name.” (CX-206.4.) To that, another responded “ooh – keep going.”

Again, Apple decided on the most anticompetitive option, that is, the “even worse” option of including the developer’s name rather than the app name … All of this was hidden from the Court and not revealed in the May 2024 evidentiary hearings.

Apple folks tried to claim that when they said “scary” they didn’t mean “scary” and really said that “scary” was “a term of art” rather than what everyone knows it means:

Mr. Onak testified that “in term of UX writing, the word ‘scary’ doesn’t . . . mean the same thing as instilling fear.” (Feb. 2025 Tr. 1340:10–12 (Onak).) Rather, “scary” is a term of art that “means raising awareness and caution and grabbing the user’s attention.” (Feb. 2025 Tr. 1340:13– 15 (Onak).) Mr. Onak repeatedly asserted that the team’s goal was simply “to raise caution so the user would have all the facts so that they can make an informed decision on their own.” (Feb. 2025 Tr. 1340:22–1341:2 (Onak).) Mr. Onak’s testimony was not credible and falls flat given reason, common sense, and the totality of the admitted exhibits. The designers’ discussions contextualize their use of the word “scary” to indicate its ordinary meaning and, most applicable here, indicate the goal of deterring users as much as possible from completing a linked-out transaction.

Beyond the psychological manipulation through the UI, Apple’s strategy centered on implementing a 27% commission on outside purchases — just a 3% discount from their usual rate for on-platform purchases — while knowing full well this would make external payment options economically unviable for developers.

Apple senior management held a meeting after the injunction was upheld by the Ninth Circuit, in which notes were taken, discussing two options: one where they didn’t charge for off-platform purchases (but which “would restrict the placement and appearance” of any links to off-AppStore purchasing options). The other one, which they went for, was to let them place the info more broadly, but take a 27% cut, rather than a 30% cut.

Unfortunately for Apple, the notes for that meeting noted that a reason to reject the first proposal was that it would “create competitive pressure.” As the judge notes: that was exactly the point of the injunction, to create competitive pressure. So, Apple’s meeting to figure out how to minimize competitive pressure can be seen as seeking to get around the injunction.

And then, on top of that, Apple went with a combination of both proposals to make it designed to stymie the injunction’s purpose. They included the link-out restrictions from the first proposal AND the commission from the second proposal.

Even more damning, Apple’s internal notes reveal that Apple (most likely correctly) predicted that the 3% discount on commissions wouldn’t be economically viable, because the cost to run your own payment setup would likely exceed that 3%. And, Apple already knew that no one would sign up for this because they had used similar off-site commission programs in Korea and the Netherlands:

At the time, Apple also knew of the virtually nonexistent adoption rates of the Netherlands and Korea programs. Those, similar to the at-issue program, additionally suggested to Apple the non-viable economics of the proposed program. See Feb. 2025 Tr. 1407:1-5 (“Q. [F]or example, as of October 2022, ten months into the Netherlands program and four months into the Korea program, only one developer had signed up for alternative payments across the two programs. A. That seems roughly correct, yes.”) (Oliver).

If you only have one developer, you don’t have to say “roughly correct.” There’s no estimating there.

But amazingly, it gets worse. Apple’s internal documentation more or less admits that they might be violating the injunction with this approach:

Crucially, at this point, Apple’s notes reflect uncertainty about whether it could in fact impose a commission without violating the Injunction. In one slide deck, Apple’s notes explain that “[i]f we decided and had the ability to charge a commission, we believe there would be very little developer adoption of link-out, assuming a scenario where we would give a cost of payments discount at 3%.” (CX-859.33 (emphasis supplied).) Those same notes indicate that Apple planned to “[c]ome up with a couple of models in the spectrum of what we think the judge will accept” but to “[s]tart with the minimum.”

The judge also points out that the exec who was pushing for the “no commission” approach, Phil Schiller, had closely followed the trial and read the injunction, while the execs pushing for the sketchy commission approach had not.

Prior to the June 20 meeting, there were individuals within Apple who were advocating for a commission, and others advocating for no commission. (Feb. 2025 Tr. 1521:3–12 (Oliver).) Those advocating for a commission included Mr. Maestri and Mr. Roman. (Id. 1522:3–10 (Oliver).) Mr. Schiller disagreed. (Id. 1521:13–18 (Oliver).) In an email, Mr. Schiller relayed that, with respect to the proposal for “a 27% commission for 24 hours,” “I have already explained my many issues with the commission concept,” and that “clearly I am not on team commission/fee.” (CX-224.1.)29 Mr. Schiller testified that, at the time, he “had a question of whether we would be able to charge a commission” under the Injunction, a concern which he communicated. (Feb. 2025 Tr. 1177:24–1178:9 (Schiller).) Unlike Mr. Maestri and Mr. Roman, Mr. Schiller sat through the entire underlying trial and actually read the entire 180-page decision. That Messrs. Maestri and Roman did neither, does not shield Apple of its knowledge (actual and constructive) of the Court’s findings.

When faced with judicial scrutiny of these practices, Apple didn’t just defend its actions — it launched an extraordinary campaign of document suppression and delay tactics that would ultimately backfire spectacularly.

As testimony unfolded, and Apple attempted to justify its response, the Court became increasingly concerned that Apple was not only withholding critical information about its business decision for complying with the Injunction, but also that it had likely presented a reverse-engineered, litigation-ready justification for actions which on their face looked to be anticompetitive. The Court immediately ordered Apple to produce all injunction-compliance related documents

And then Apple appeared to play games in providing the demanded documents:

Apple engaged in tactics to delay the proceedings. The Court later concluded that delay equaled profits. By September 30, 2024, Apple represented that it had produced around 89,000 documents out of the 1.5 million it had reviewed and expected to produce a few thousand more by October 7, 2024. (Dkt. No. 1024.) Apple, however, had asserted privilege over more than a third of responsive documents….

Magistrate Judge Hixon largely found Apple’s privilege claims to be unsubstantiated after reviewing eleven exemplar documents (characterized by Epic as evidence of Apple’s overreach). (Dkt. No. 1056.) Apple used this decision to delay further and “offered” to re-review all 57,000 documents for which it claimed privilege in full or in part. Ultimately, Apple withdrew approximately 42.1% of its privilege claims. Although Apple now tries to recast its re-review as “of its own accord,” that framing belies the reality that the documents should have never been withheld in the first instance. (Dkt. No. 1151 at 5–6.) Ultimately, Epic and Apple hired three special masters to review Apple’s privilege claims after its re-review.

But Apple’s strategy of obstruction eventually crumbled, revealing something even more serious: executives appearing to deliberately lie under oath.

The judge describes how Apple hired some consultants, “Analysis Group” or “AG,” to conduct research on the value of their platform to try to find justification for the 27% costs charged to developers. They then told the court that they used that analysis as the basis of what to charge, even though the notes now prove that the decision was actually made about six months earlier. In other words, Apple execs appear to have lied under oath.

On top of that, Apple execs claimed that they hadn’t evaluated if external costs of a developer running their own payment setup would exceed the 3% discount, even though it has since come out that they very much did do that analysis, and it was a key part of the decision to only discount commissions by 3%. More lies:

Despite its own considerable evaluation, during the first May 2024 hearing, Apple employees attempted to mislead the Court by testifying that the decision to impose a commission was grounded in AG’s report. (See, e.g., May 2024 Tr. 544:16–24 (Oliver); see also Dkt. No. 1324, Apple Trial Brief at 12.) The testimony of Mr. Roman, Vice President of Finance, was replete with misdirection and outright lies. He even went so far as to testify that Apple did not look at comparables to estimate the costs of alternative payment solutions that developers would need to procure to facilitate linked-out purchases.

The Court finds that Apple did consider the external costs developers faced when utilizing alternative payment solutions for linked out transactions, which conveniently exceeded the 3% discount Apple ultimately decided to provide by a safe margin. (See CX-265.27 (Apple’s estimates of external costs for developers); Feb. 2025 Tr. 1627:15–1628:10 (Vij) (discussing external costs).) Apple did not rely on a substantiated bottoms-up analysis during its months-long assessment of whether to impose a commission, seemingly justifying its decision after the fact with the AG’s report.

Also, given that the decision to charge 27% commissions happened in July of 2023, and the AG report was only delivered in January of 2024 (well after the decision was made), the same Apple exec then apparently lied and claimed the commission decision was made after the report was delivered, which the now-revealed notes show was just blatantly false:

Mr. Roman did not stop there, however. He also testified that up until January 16, 2024, Apple had no idea what fee it would impose on linked-out purchases:

Q. And I take it that Apple decided to impose a 27 percent fee on linked purchases prior to January 16, 2024, correct?

A. The decision was made that day.

Q. It’s your testimony that up until January 16, 2024, Apple had no idea what — what fee it’s going to impose on linked purchases?

A. That is correct. (May 2024 Tr. 202:12–18 (Roman).)

Another lie under oath: contemporaneous business documents reveal that on the contrary, the main components of Apple’s plan, including the 27% commission, were determined in July 2023.

Neither Apple, nor its counsel, corrected the, now obvious, lies. They did not seek to withdraw the testimony or to have it stricken (although Apple did request that the Court strike other testimony). Thus, Apple will be held to have adopted the lies and misrepresentations to this Court.

Ouch.

There’s a lot more as well, but the judge is rightly pissed off. She has issued an injunction making it pretty clear that Apple has to knock off all its tricks:

PERMANENTLY RESTRAINS AND ENJOINS Apple Inc. and its officers, agents, servants, employees, and any person in active concert or participation with them, from:

1. Imposing any commission or any fee on purchases that consumers make outside an app, and as a consequence thereof, no reason exists to audit, monitor, track or require developers to report purchases or any other activity that consumers make outside an app;
2. Restricting or conditioning developers’ style, language, formatting, quantity, flow or placement of links for purchases outside an app;
3. Prohibiting or limiting the use of buttons or other calls to action, or otherwise conditioning the content, style, language, formatting, flow or placement of these devices for purchases outside an app;
4. Excluding certain categories of apps and developers from obtaining link access;
5. Interfering with consumers’ choice to proceed in or out of an app by using anything other than a neutral message apprising users that they are going to a third-party site; and
6. Restricting a developer’s use of dynamic links that bring consumers to a specific product page in a logged-in state rather than to a statically defined page, including restricting apps from passing on product details, user details or other information that refers to the user intending to make a purchase.

Normally, I would say some of those go a bit far in limiting certain things that Apple would be expected to do, but… given just how much Apple tried to lie and mislead the court, it’s kinda what you’d expect. It also says it will not put a stay on this assuming Apple appeals “given the repeated delays and severity of the conduct.”

While Apple also has to pay for the special master that it and Epic had to bring in to review the falsely claimed “privileged” documents, there aren’t any other sanctions (nor did Epic seek them). And that’s why there’s a criminal referral.

What makes this ruling so remarkable isn’t just the scathing language or even the criminal referral — it’s the sheer pointlessness of Apple’s defiance. The company had won almost all of this case. All it had to do was make one small change. Instead, its executives chose to lie, obstruct, and treat the judicial system with contempt. Even with Tim Cook’s recent cozying up to Trump and the Trump/Bondi Justice Department’s tendency to view justice through the lens of personal loyalty (which might help make the criminal referral disappear), it’s hard to understand what Apple thought it would gain through such brazen actions.

Yes, Apple managed to drag out its monopoly rents on app commissions for a bit longer. But it could have crafted a more open system that would have satisfied the court while preserving significant control over its platform (along with the associated commissions) — all without executives potentially facing criminal contempt charges. The short-term profits from delay hardly seem worth the cost of credibility with courts and regulators going forward.

As Judge Gonzalez Rogers put it simply: Tim Cook chose poorly.

Filed Under: alex roman, antitrust, app store, competition, contempt, criminal contempt, in app purcases, luca maestri, obstuction, phil schiller, tim cook, yvonne gonzalez rogers
Companies: apple

Congressional Report Accuses Jordan, Musk Of Weaponizing Gov’t To Silence Critics

from the finally-calling-out-the-truth dept

For quite some time now, we’ve pointed out how Jim Jordan has weaponized the government to suppress speech. Quite frequently, he seems to be doing this in coordination with Elon Musk. And yet, somehow, it felt like we were the only ones calling this out. So many in the media seem fine repeating the lie that Elon Musk is a free speech supporter, or that Jordan is trying to stop the “weaponization of the government,” rather using it to his advantage.

So it was interesting to see that the Democrats on the House Judiciary Committee recently released a detailed report calling out Jim Jordan and Elon Musk as colluding to misrepresent reality in a push to silence criticism.

The 53-page report, titled “Delusion of Collusion: How the House Republican Majority Abused Oversight Powers to Protect Elon Musk and Silence His Critics,” exhaustively documents how Jordan launched a sham investigation in what appears to be a clear attempt to intimidate advertisers and bully them into subsidizing Musk’s ExTwitter, while falsely claiming it was about fighting “collusion.”

Because the Democrats tend to be inept and incompetent in explaining reality to people, Rep. Jerry Nadler released the report on New Year’s Eve where it basically got zero attention. As far as I can tell, the only news report to cover it was a small legal antitrust trade publication. By the time the ball dropped in Times Square hours after the report had been released, it had effectively disappeared.

However, it deserves way more attention for all of the nonsense it puts into the public record, specifically focusing on Jordan and Musk’s effort to attack GARM, a small non-profit that just worked with advertisers and social media platforms to encourage the platforms to protect the brand safety of advertisers. As we’ve covered, that attack was successful. Even though his ExTwitter had put out a press release talking about how excited they were to “rejoin” GARM just weeks earlier, Musk went on to sue GARM, which was almost immediately shut down by the World Federation of Advertisers.

The report breaks down how this was a clear case of Jordan and Musk weaponizing the government to silence critical speech.

By March 2023, Twitter’s value had fallen from 44billionto44 billion to 44billionto20 billion. The reason for this decline in value is no mystery, given the facts outlined above. Nevertheless, the Majority launched an investigation into the advertisers which have declined to spend money on the platform, accusing them of “colluding” to hurt the company’s profits. Since then, the Majority has spent countless dollars and hours of staff time trying to figure out why advertisers might be hesitant to risk their brands’ reputations on a platform whose owner told them, in November 2023, to “Go fuck yourself.”

Chairman Jordan’s so-called investigation culminated in a July 2024 “interim report” which used cherry picked documents and misleading transcript excerpts to suggest that the committee had uncovered evidence of “collusion” when in fact the very opposite is true. In fact, the complete and contextualized documents and testimony show that the Global Alliance for Responsible Media and its member companies were engaged in a pro-competitive effort to address the substantial brand risk that harmful online content poses to advertisers and to consumers.

Chairman Jordan’s report had an audience of one: Elon Musk. In fact, the entire report seems like pretext for a lawsuit Musk filed against various advertising entities and ultimately to silence the advertisers who expressed concern about content on his platform. The resources of this Committee should not be directed to further pad a billionaire’s bottom line. In contrast, this minority report is intended for the American public, who are entitled to the truth about this investigation and about Chairman Jordan’s true aims and abuse of congressional oversight power.

It’s hard to imagine a more blatant example of a powerful government official abusing his authority to carry water for a political ally and major GOP donor. The fact that Jordan is doing this while sanctimoniously claiming to be fighting the “weaponization” of government is beyond parody.

As the report calls out:

For the past 20 months, the Chairman of the House Judiciary Committee has abused his oversight power and the rule of law to push an agenda that would pervert the free market and undermine individual companies’ independent decisions as to where to place advertisements online. The spread of illegal, harmful, abusive, and false and misleading content online results in actual harm, both online and offline. We are left to conclude that the Majority’s ultimate goal was not to conduct antitrust oversight as they claim, but rather to silence criticism of harmful online content and those who promote it, deter content moderation, and protect the ability to use mis- and disinformation campaigns to achieve political ends.

Ya think? This was obvious from the beginning, but almost entirely ignored by the credulous media that uncritically amplified Jordan’s false claims.

The report thoroughly debunks Jordan’s flimsy antitrust pretext and exposes his true aim: strong-arming companies into boosting Musk and his political allies.

It also calls out the irony of the committee that claims to be fighting weaponization, actually being the chief party weaponizing the government against speech:

The Majority is engaging in a transparently political effort to use the antitrust laws to benefit their allies by conferring upon them outcomes that they could not otherwise achieve in the marketplace. This is not just a misuse of the antitrust laws, but fundamentally subverts the goals of those laws. The irony could not be greater. While spending most of this Congress attacking the Biden administration’s so-called weaponization of government, the Majority here is trying to weaponize the antitrust laws under a highly dubious theory to override legitimate market outcomes.

It also calls out the MAGA trend of falsely claiming that content moderation or boycotts could possibly violate the First Amendment:

Finally, the Majority bandies about words like censorship, in a misguided effort to evoke the First Amendment. But as the Majority well knows, the First Amendment only applies to government action. And in this case, the only governmental burdening of speech is the Majority’s onslaught against GARM and its members. It is an effort to bully the advertisers into subsidizing firms whose content moderation policies put brands and businesses at risk. It is an attempt to hijack free speech, as well as antitrust, for political purposes.

If reality mattered, this report would be a bombshell. But, again, everyone seems to be living in a fog of nonsense, where anything the MAGA world says it’s doing, no matter how obviously false, is treated as genuine. And any time anyone calls out the lack of clothes on the emperor, it’s dismissed as sour grapes or “derangement syndrome.”

The report is thorough and detailed. It explains why companies might not want to advertise on ExTwitter for totally legitimate business reasons, calling out examples of big brands having their ads show up next to “pro-Nazi” content, and noting that consumers (the marketplace again!) will often punish companies whose advertisements support such hatred:

Now consider the category of misinformation that the Majority alleges GARM’s members misapply to the detriment of conservative-voiced content. The GARM framework defines misinformation as “the presence of verifiably false or willfully misleading content that is directly connected to user or societal harm.” Consumer surveys suggested that inappropriate content, including misinformation, negatively affects brand trust and purchase behavior. These results explained, in part, why advertisers are concerned about the nexus between brand safety and misinformation. Additional studies examined this nexus in more detail. A 2024 article in NATURE reported the results of an experiment which demonstrated that consumers are likely to reduce purchases from firms that advertise on websites that publish misinformation compared to firms that do not. Unlike the surveys which measured intention to change purchase behavior, subjects in this experiment made actual economic choices. Additional research on consumer reaction to misinformation was provided by the IPG Mediabrands and Zefr MAGNA Media Trials Study which found that “advertising next to misinformation led to wasted dollars for brands, eroded brand perception, and negatively impacted KPIs [key performance indicators].”

The challenges of directing ad placement to trustworthy sites and away from misinformation sites continues to loom large. The 2024 NATURE study found that of the 100 most active advertisers, an astounding 79.8 percent that used digital advertising platforms had advertisements placed in online misinformation outlets in a given week. The authors attributed the problem to the use of such platform systems that allocate advertising to such websites. Another study, by the Pew Research Center, suggested that “for every 2.16indigitaladrevenuesenttolegitimatenewspapers,U.S.advertisersaresending2.16 in digital ad revenue sent to legitimate newspapers, U.S. advertisers are sending 2.16indigitaladrevenuesenttolegitimatenewspapers,U.S.advertisersaresending1 to misinformation websites.”

In sum, online advertising is very important for advertisers and for the websites that provide and host content, many of whose business models depend on it. But harmful content is challenging the business models of advertisers, content providers, and platforms alike. Consumers associate the online content with the brands that advertise there. When a brand is advertised near harmful content, its value is undermined because most consumers believe that the brand knowingly chose that content and site for its advertising.

In other words, there are completely and totally understandable business reasons for advertisers to stop advertising on ExTwitter.

And all GARM was trying to do was help advertisers make sure that they didn’t risk angering customers by having ads appear next to highly controversial content. And they did so in a way that everyone involved knew was just creating more information and allowing advertisers (and social media platforms) to make their own final decisions:

GARM’s voluntary frameworks, which the biggest social media platforms helped develop, provide structures for analysis and created a common lexicon. Much like the terms of art in marketing or expressions in mathematics, a shared terminology facilitates communication that is foundational for constructive working relationships across organizations. Such terminology enhances transparency, making market transactions more efficient. The buyer better understands what sellers are offering in terms of brand safety and the seller better understands what buyers want. Both advertisers and platforms benefit from this common approach and independent decision making is improved.

Crucially, the frameworks do not dictate advertising outcomes. Applying those frameworks is an inherently subjective exercise that includes tailoring to the specific requirements of the brands and leads to outcomes that vary across GARM’s members. Juhl described how GroupM customizes its work in ad placement to reflect the specific needs of their advertiser clients:

GroupM works to place our clients’ ads on media pursuant to their goals, preferences, and target audiences, and we continually engage with our clients to understand their particular risk tolerance levels. These risk tolerances shift due to our clients’ own business conditions and how they view the current political and social environments. Clients shift priorities very quickly and it is our job to execute their strategy with speed and precision. We always follow our client brand’s ad placement wishes.

It is also important to recognize that the application of the GARM frameworks usually operates within a firm’s set of marketing policies and hence was only one consideration among many. These marketing policies vary by firm. Most were created before the GARM frameworks and continue to shape online advertising choices.

But, Jim Jordan and Elon Musk bent over backwards to pretend that it was “illegal collusion” that violates antitrust law. And this report says that’s ridiculous to anyone who looked at all the facts.

The Majority’s July 2024 Interim Report offers no direct evidence of an agreement among GARM and its members. Mere status as a member of GARM would not, without more, support a finding of a conspiracy. Consistent with the key Supreme Court precedents Matsushita Elec. Industrial Co. v. Zenith Radio Corp.1 and Monsanto Co. v. Spray-Rite Service Corp., a plaintiff would have to “present evidence tending to show that association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective.” In contrast, GARM and its members are absolutely clear that their advertising decisions are made independently. As Unilever USA President Patel testified during the hearing,

I want to be very clear on one crucially-important fact. Unilever and Unilever alone controls our advertising spending. No platform has the right to our advertising dollars. As we look across the available advertising inventory, recognizing we do not have unlimited money to spend on advertising, we choose the channels, the platforms, and the outlets that give us the greatest commercial benefit for our advertising investments.

During questioning Patel further confirmed that, “A hundred percent, Unilever makes its own decisions,” and does not follow any outside group’s direction to avoid any outlet. This sentiment is echoed by GARM’s Rakowitz during his transcribed interview:

Q: But just to nail down that point, GARM doesn’t tell individual members—

A: Absolutely not.

Q: —what to do?

A: No, we do not.

Q: Or where to place ads?

A: No, we do not.

Q: Or where to avoid placing ads?

A: We do not.

These comments are consistent with the advertiser decision making process discussed in Part IIB.

As the report highlights, nothing about this represents a serious antitrust inquiry.

A serious antitrust inquiry would need to address the ease of reaching and sustaining an agreement. Two major obstacles—large numbers of participants and participants with diverse interests—have long been recognized by antitrust law as making collusive schemes less likely. In the GARM setting, overcoming these obstacles would loom large.

The real reason companies stopped advertising on ExTwitter is no grand conspiracy to suppress free speech. It was a simple business calculation. Advertising there is bad for business:

The Majority focused on alleged harm caused by the demonetization of its favored conservative-voices. They assert that this loss of revenue is caused by a large conspiracy involving GARM and its 100 plus members to suppress conservative-voiced online platforms and outlets by stopping advertising support. But the most compelling explanation for this revenue decline is apolitical. Advertisers want to attract and retain customers. When their advertising is placed next to harmful content the advertisement instead repels customers. Not surprisingly, advertisers gravitate to outlets that pose less risk to their brands. Again, this isn’t rocket science.

Instead, the much more obvious conclusion is the one that we’ve been shouting from the rooftops for the past few years: that it’s Jordan who is weaponizing the government to silence speech:

As with other of this Committee’s recent investigations, we are left to conclude that its ultimate goal was not to “conduct[] oversight of the adequacy and enforcement of U.S. antitrust laws” as they claim, but rather to silence criticism of harmful online content and those who promote it, deter content moderation, and protect the ability to use mis- and disinformation campaigns to achieve political ends. The Majority’s desperate ploy to launder their failed censorship arguments through an antitrust framing itself fails. The Majority’s actions have intimidated organizations who call attention to the prevalence of hate, disinformation, and other harmful or unlawful content online. Fostering a more transparent, accountable, and responsible digital environment is not only lawful, it is good for businesses, consumers and the general public. Chairman Jordan’s investigation and others like it will undermine this work and lead to the further deterioration of our information ecosystem and will threaten free speech.

Antitrust is not about choosing winners and losers. It is about ensuring a fair fight. In this instance we see that the Majority is willing to condemn any outcome that they do not like as being unfair and the outcome appears to involve both a category of supposed victims as well as a particular victim—X. In fact, this investigation originated after the Speaker of the House Kevin McCarthy, Chairman Jordan, and Elon Musk were talking and Musk said, “‘by the way, there’s this organization GARM, because GARM is harm.’ [sic] I [Jordan] never forgot that sentence.” No he did not. Jordan embarked on an investigation whose outcome was a foregone conclusion and for which the resulting report’s title [GARM’s Harm] was effectively supplied by Musk himself. Despite all of the investigation’s shortcomings, it excelled in one regard—providing taxpayer funded discovery for the richest man in the world and one of Trump’s biggest donors. A lawsuit launched by X just days after the Majority’s interim report was released began by touting that the conduct was “the subject of an active investigation” by the House Judiciary Committee before reproducing the fruits of the subcommittee’s fishing expedition in the form of a document demand. Perhaps this assault on legitimate business activity seems worth it to the Majority.

It’s pretty scathing as Congressional reports go.

In the end, this sordid saga illustrates the dangerous way that accusations of “censorship” and “collusion” are being cynically weaponized to bully companies into amplifying favored political content. Jordan and Musk’s campaign against GARM sets a troubling precedent.

By abusing the power of Congressional oversight to intimidate advertisers and platforms, they are effectively arguing that companies have an obligation to subsidize and support any speech, no matter how hateful or harmful, or else be accused of “censorship.” It’s an attempt to pervert the free market to serve their political agenda.

But as this report makes clear, advertisers’ decisions on where to place their ads are driven by legitimate business considerations about brand safety and consumer sentiment, not some nefarious plot to silence conservatives. The real threat to free speech is not content moderation or advertiser boycotts – it’s government officials like Jim Jordan trying to use their power to dictate what speech must be subsidized and supported.

Sadly, given the current media and political environment, it’s unlikely this report will get the attention it deserves. But for anyone who cares about the future of online speech, platform governance, and the abuse of government authority, it’s essential reading. It shines a harsh light on Jordan and Musk’s cynical, dishonest campaign and the damage it has done to free speech and the free market.

Filed Under: advertising, antitrust, brand safety, collusion, elon musk, free speech, house judiciary committee, intimidation, jerry nadler, jim jordan, weaponization subcommittee
Companies: garm, twitter, x

Incoming FTC Chair: I Will Stop All These Investigations That I Falsely Claim Are Politically Motivated In Order To Launch My Own Openly Politically Motivated Investigations

from the another-censorial-suckup dept

On Tuesday, Trump announced Andrew Ferguson as the next chair of the Federal Trade Commission, elevating him from his current commissioner role. Ferguson’s plans for the agency, laid out in a leaked one-page memo, make clear that he intends to use antitrust and consumer protection authority not to protect competition and consumers, but to punish the MAGA world’s perceived enemies and fight culture war battles.

Ferguson’s leaked memo outlines plans to use antitrust to punish “Big Tech” for “censorship,” investigate companies that engage in boycotts, and “fight back against the trans agenda” — all part of a nakedly political agenda.

Just last Friday, we wrote about an absolutely wild and ridiculous statement from Ferguson that made it clear he was sucking up to Trump by talking about all the powers the FTC had to go after his culture war enemies for their speech. It was clear that Ferguson was gunning to be appointed chair of the FTC. The general feeling was he felt the need to appear extra Trumpy, because Trump was unhappy that he had worked for Mitch McConnell in the past.

Later that day, Ferguson’s one-page plea to Trump was leaked and it’s quite a banger.

It is basically a laundry list of a bunch of shit that Trump gets excited about, much of which is well beyond the FTC’s actual authority (which is even more scaled back post-Loper Bright removing Chevron deference). And, note the line at the bottom where he mentions his work for McConnell, but frames it as if he pushing Trump’s agenda within that office. A lot of “sure I worked for the guy you hate, but I was fighting the good fight against him” energy.

Trump loves a suck-up, and in this case, it worked. On Tuesday, Trump announced Ferguson as the next chair. Note that he skips over the McConnell part of the resume.

With Ferguson assuming the top job at the FTC, we should perhaps look at what he’s planning to do. Obviously, that totally batshit crazy “concurrence” on last week’s GOAT ruling was a dry run of nonsense, but the one-page pitch has a lot more craziness in there that should be called out.

The whole thing can be summarized pretty simply: end a bunch of the efforts that Lina Khan began by calling them “politically motivated,” (despite little evidence of any of them actually being politically motivated) while launching a shit ton of new investigations, nearly all of which appear to be extremely politically motivated.

Every accusation a confession, you know.

While I’ve been critical of some of Lina Khan’s moves at the FTC, especially early in her tenure, I’ve seen no evidence that her actions were “politically motivated” as Ferguson asserts. If anything, some of her later efforts, while more effective, were politically inconvenient for Democrats, leading prominent Democratic donors to ask Kamala Harris to promise to dump Khan.

However, Ferguson makes it clear that almost everything he wants to do is politically motivated and is about fighting culture wars and suppressing speech. That’s not what the FTC is for, but he sure sounds like he’s going to try to make it do so. A few of the dumber ideas:

Focus antitrust enforcement against Big Tech monopolies, especially those companies engaged in unlawful censorship.

This is yet another example (one of many) of new administration officials using the language of free speech to enact censorial, speech-suppressing policies.

There are already antitrust cases against all the Big Tech companies, and it’s kinda funny that this plan to “focus antitrust enforcement” against them is in direct conflict with his earlier claims about pulling away from Khan’s aggressive efforts efforts to promote competition. It also contradicts with his plan to allow more and more mergers, which seems like the antithesis of antitrust.

And that’s why it’s clear that the antitrust efforts he’s talking about have nothing to do with consumer protection or monopolistic anti-competitive behavior, but rather punishing the MAGA world’s perceived enemies.

The “engaged in unlawful censorship” line is the giveaway. He used that line in the GOAT ruling last week, and we already discussed how it’s bullshit. Private companies have a First Amendment right to engage in the editorial discretion they like, and the Supreme Court confirmed that just last year. Ferguson almost certainly is aware of that. Why he would choose to misrepresent that is left as an open question.

Pursue structural and behavioral legal remedies under the antitrust laws and the FTC Act to make sure large platforms treat all Americans fairly and to prevent them from using their market power to box out new entrants and stymie innovation.

Why do I get the feeling this will not apply to Elon Musk’s repeated efforts to throttle or otherwise limit links to any competitors? Would that not be using market power to box out new entrants and stymie innovation?

Somehow, I doubt that’s what Ferguson has in mind. Instead, this is transparently a threat being made to other social media platforms that moderate MAGA folks, and also a suggestion that not choosing to advertise on ExTwitter will be seen as “boxing out new entrants” and an attempt to “stymie innovation.”

Then we get the culture war nonsense:

Investigate and prosecute collusion on DEI, ESG, advertiser boycotts, etc.

Literally all of that is free speech and free markets at work. Saying he’s going to investigate and prosecute people for their free association and free market decisions to not do business with someone is, once again, a censorial attack on free speech that Ferguson doesn’t like. This is a dangerous threat to use government power to coerce private entities to support certain political views.

If a Democrat said anything even remotely similar to this (e.g., saying the FTC should “investigate and prosecute” boycotts of Budweiser) it would be the top story across Fox News and the Trump media ecosystem for years. Yet, when a GOP person does the same thing… crickets.

These kinds of attacks on free speech should be repeatedly called out as such by everyone. This is not a good faith look at “collusion.” It is Ferguson issuing a warning from the government: “shut up on these things, and start buying ads on ExTwitter… or else.”

Considering the GOP spent four years screaming incoherently about the government pressuring social media companies on moderation, it’s notable that they are going way, way, way beyond even what they claimed the Biden administration did (and what actually happened was less than what the MAGA world claimed).

Then we get even more culture war nonsense that seems clearly designed to be a censorial warning shot about LGBTQ content:

Fight back against the trans agenda. Investigate the doctors, therapists, hospitals, and others who deceptively pushed gender confusion, puberty blockers, hormone replacement, and sex-change surgeries on children and adults while failing to disclose strong evidence that such interventions are not helpful and carry enormous risks.

While the cruelty and hatefulness of this agenda is apparent, it’s worth noting that it has nothing to do with the FTC’s mission of protecting consumers and competition. It’s simply Ferguson abusing his power to target a vulnerable minority.

History will remember these cruel attacks on people who just want to live their lives, and it won’t look kindly on the dipshits like Ferguson that led them.

Then, of course, Ferguson makes it clear that he will abandon decades of precedent in making sure that the FTC is no longer an independent agency:

The Constitution requires that all federal employees, even the heads of so-called independent agencies, answer to the President.

Terminate uncooperative bureaucrats.

Advance the President’s agenda by taking on entrenched left-wing idealogues at the FTC who take their agenda from liberal journalists and activists. Only a strong, Trump-aligned Chairman can resist their influence.

Basically, if you don’t do what Trump wants, or say what Trump wants you to say, you’ll lose your job at the FTC. That’s not how this is supposed to work.

Hell, some of us remember Republicans absolutely losing their minds during the Obama administration when Obama posted a public message urging the FCC to embrace net neutrality, claiming the mere hint that the President was suggesting what the FCC should do violated the Administrative Procedures Act.

The same Republicans who viewed a public statement from Obama as an egregious violation of the FCC’s independence will now happily cheer Ferguson on as he explicitly vows to turn the FTC into an arm of the Trump White House. All this will do in the long run is destroy any credibility either agency once had, which may very well be the real point.

Again, in the post-Loper Bright world, it’s unclear what authority the FTC actually has any more. But Ferguson has already made clear that his main goal is to use whatever power it does have to punish Trump’s enemies for their speech.

If carried out, Ferguson’s plans would mark the complete politicization of what is meant to be an independent agency. It would turn the agency into a tool for censorship and retaliation against the administration’s opponents. This is a five-alarm fire for anyone who cares about free markets, free speech, and limited government.

Filed Under: 1st amendment, andrew ferguson, antitrust, boycotts, censorship, content moderation, dei, donald trump, free speech, ftc

GOP FTC Commissioners Abuse “Free Speech” Rhetoric To Push For Government Control Over Online Speech

from the censorship-through-lies dept

In a disturbing (if unsurprising) trend, Republican FCC and FTC commissioners are deliberately misusing “free speech” rhetoric in an Orwellian attempt to justify government intervention to control and suppress online speech.

Last week, FCC Commissioner Brendan Carr pushed censorial policies in the name of “free speech.” This week, GOP FTC Commissioners Melissa Holyoak and Andrew Ferguson followed the same playbook. Of course, the context here is that Holyoak and Ferguson are fighting to get into Trump’s good graces to be named FTC chair, and he’s apparently worried that the two of them will be “soft” on his “big tech” enemies.

That resulted in them hijacking an unrelated enforcement action against e-commerce site GOAT to attack social media content moderation and advertiser boycotts.

GOAT is kind of like an eBay for mostly sneakers and some other sports apparel. But the FTC went after it for being misleading about both its shipping times and its claims of providing buyer protection services.

This seems like a fairly straightforward FTC case involving violations for unfair or deceptive practices. But for whatever reason (okay, okay, we know why) the Republican Commissioners decided to use this otherwise unremarkable case to go nuts about “online censorship” and (I shit you not) the unwillingness of some companies to advertise on ExTwitter.

While GOAT’s practices were problematic, they had nothing to do with the content moderation policies of social media platforms that the commissioners attacked in their statements. Indeed, they had nothing to do with third-party speech at all.

Commissioner Melissa Holyoak agreed with the FTC’s actions against GOAT, but then pivoted in her concurring statement to argue that the FTC should use the very same powers to go after social media companies for alleged unfair treatment of users in how they moderate:

This case is a good example of the Commission’s robust enforcement to protect consumers, and how we should consider and appropriately use every tool that Congress has given to us. This includes using our existing consumer protection authorities—consistent with the Commission’s constitutional and statutory authority—in new or emerging areas. For example, we must better understand how platforms enforce their terms of service to deny access or services to users or moderate speech about controversial topics. And the settlement with GOAT underscores the existing legal authority the Commission has to prosecute how platforms enforce their terms of service. Platforms employ their own internal procedures when they decide to terminate or deny access to users—not unlike the failed internal procedures of GOAT. A platform’s internal procedures can also be a black box, failing to provide users with adequate information about alleged violations of the terms of service, the platform’s determination, and the user’s purported “options” to challenge or appeal those decisions. Such actions have serious consequences for consumers, and in some cases, may be contrary to consumers’ reasonable expectations and constitute an unfair practice. It is critical to do more to understand the role that platforms play in controlling access to the digital commons. And a comprehensive approach to behavioral remedies—using our consumer protection and antitrust authorities— can reduce big tech’s ability to unlawfully remove Americans off their platforms.

Almost everything about this is nonsense. First, every single terms of service on these kinds of platforms includes some variation of the line saying “and we can kick you off our platform for any reason whatsoever.” Because they can. With very few restrictions, private businesses have the right to refuse service to anyone, and that’s especially true in the speech context, where the First Amendment’s rights of association include the right not to associate with anyone’s speech.

That is simply categorically different than an e-commerce company making direct promises to users about when it will ship things and what kind of buyer protection is provided.

Holyoak claims that this “can reduce big tech’s ability to unlawfully remove Americans off their platforms,” but leaves out the fact that it’s not unlawful at all. Hell, the Supreme Court itself just explained this in the Moody ruling, making it clear that Florida and Texas can’t pass laws that tell social media companies how to moderate. Is Commissioner Holyoak unaware of what the Supreme Court just said mere months ago?

At bottom, Texas’s law requires the platforms to carry and promote user speech that they would rather discard or downplay. The platforms object that the law thus forces them to alter the content of their expression—a particular edited compilation of third-party speech. See Brief for NetChoice in No. 22–555, pp. 18–34. That controversy sounds a familiar note. We have repeatedly faced the question whether ordering a party to provide a forum for someone else’s views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt. So too we have held, when applying that principle, that expressive activity includes presenting a curated compilation of speech originally created by others.

Or, even more directly:

But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. The regulations in Tornillo, PG&E, and Hurley all were thought to promote greater diversity of expression. See supra, at 14–16. They also were thought to counteract advantages some private parties possessed in controlling “enviable vehicle[s]” for speech. Hurley, 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of the then-current media environment—in particular, the disproportionate “influen[ce]” of a few speakers—similar to one heard today (except about different entities). 418 U. S., at 249; see id., at 248–254; supra, at 14–15. It made no difference. However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.

So the entire premise from the Commissioner is wrong.

But Commissioner Andrew Ferguson decided to take up the concept that Holyoak suggested and take it way further. Way, way, way further. His concurring statement gets pretty stupid pretty quickly.

We should address not just censorious conduct specifically, but also investigate the structural issues that may have given these platforms their power over Americans’ lives and speech in the first place. In particular, we must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly. We must prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.

First off, the pet peeve I mention all too often. The word you mean is censorial, not censorious. You’re using the wrong fucking word.

But more importantly, what the actual fuck? Commissioner Ferguson is flat-out claiming that the FTC’s authority includes going after “advertiser boycotts” (something that has been held to be First Amendment protected expression). The only instances where that’s not the case are ones where boycotts are done for anti-competitive purposes.

Commissioner Ferguson, companies deciding that they don’t want to be associated with crypto scammers and literal neo-Nazis is not that.

Similarly, the line “unlawfully limiting Americans’ ability to exchange ideas freely and openly” is again utter fucking nonsense. Can we send these jackasses to First Amendment 101? Private platforms have a First Amendment right to moderate how they see fit, as the Supreme Court said just a few months ago.

But Ferguson isn’t done yet with the crazy.

Addressing potential structural problems is necessary even if the Commission successfully enforces the platforms’ terms of service. Suppose that, in response to Commission action, the platforms honestly disclose their content policies and comply with them. Consumers could then choose to use platforms that provided free-speech-respecting products rather than those that do not. This would be an improvement over the status quo. But the choice would be real only if there are suitable free-speech-respecting substitutes to the censorious platforms. X right now is such a platform. But that is a recent phenomenon; X was once as censorious as the rest. Its current turn toward free expression is due only to its new owner’s unusually firm commitment to free and open debate. Other online platforms remain far more censorious. Moreover, the major social media platforms may not necessarily be suitable substitutes for each other based on their characteristics and uses. They appear to occupy several unique niches, and a creator banned from one platform cannot count on earning a living by posting the same content on another platform.

Again, you dope, censorious does not mean what you think it means. I am being censorious here, in that I am being critical. It has nothing to do with the suppression of speech.

Second, what the actual fuck? No, X is not “free speech respecting.” At all. It has banned journalists for merely mentioning a name Elon disliked. It went way further than old Twitter did in banning a reporter and any mention of the JD Vance dossier that was leaked. It has declared that the term “cisgender” is an offensive slur that violates its rules. Elon recently admitted that he openly is downgrading links. There are many reports that if you mention competitor apps, those posts are hidden from the algorithm, something he appears to have done repeatedly whenever another site gets press attention. After getting into a fight with “Twitter Files” reporter Matt Taibbi, at one point Musk made it impossible to find Taibbi’s tweets through search. At one point he completely hid an anti-GOP ad that was getting attention. There are tons of reports of users being “shadowbanned,” and that’s using the misleading, but colloquial definition of deprioritizing the algorithmic reach of content, which Musk claimed was so pernicious it was why he had to buy Twitter — only to almost immediately embrace it as his preferred policy, including making sure to shadowban accounts he didn’t like.

I could go on. The idea that ExTwitter is somehow more supportive of free speech than its predecessor company is only true in the sense that Musk is more willing to allow hate speech on the platform. In so many other ways it is not just more willing to suppress speech, it’s much more arbitrary in how it’s done.

Claiming otherwise, as Commissioner Ferguson does here, suggests he’s ignorant, a fool, or a liar. Not sure which would be worst. Anyone who understands free speech knows full well that Elon Musk is not a supporter of free speech.

Also, even if he were correct, nothing here makes sense. Ferguson is effectively claiming that there need to be multiple social media platforms that all have the same policies Elon prefers on speech to be “suitable substitutes.” But that’s insane. Do there need to be multiple newspapers with identical editorial policies for there to be competition? Of course not. The differentiation in editorial policies is part of the competition itself.

Indeed, that’s exactly what former Rep. Chris Cox and current Senator Ron Wyden talked about in explaining why Section 230 was written, to encourage different online communities to offer up differentiated rules to allow for a variety of communities, so people could find which ones they wanted to participate in. As they noted, requiring multiple sites to all have the same rules is “the opposite of true diversity.”

Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

The idea that the FTC has the authority and/or power to force every social media company to moderate with the same rules as ExTwitter is so batshit crazy that it makes you question how someone who thinks that should ever have a job at the FTC let alone be a Commissioner.

From there, Commissioner Ferguson presents a litany of conspiracy theories, half-truths and flat-out lies. He claims that because platforms implemented their own rules to try to decrease harms from misinformation, it proves that even if platforms all have similar rules that might still violate the law (he’s wrong). But even more ridiculous is that he presents this as proof:

And this phenomenon was never more obvious than in 2020, when major Big Tech platforms simultaneously banned reporting on, and discussion of, the Hunter Biden laptop story.

That entire statement is false. Every single bit of it. There is a footnote, which cites only Commissioner Ferguson’s own statement in an earlier FTC effort, which also doesn’t say what he says here.

We’ve covered the reality of the Hunter Biden laptop story before. It is not at all true that “BigTech platforms simultaneously banned reporting on, and discussion of” the laptop. Literally none of them did. Twitter definitely went the farthest, and it didn’t do any of what Ferguson says here. It banned only the sharing of the link, but allowed all other discussion (of which there was plenty). It also allowed other reporting on the story. And, facing a ton of (correct!) criticism over the block of that one NY Post link, Twitter reversed course the very next day.

Facebook never banned any reporting or discussion of the story at all. It also didn’t ban any links to the story at all. For a short while, it put a flag on the story such that the link would not trend on the site until they had sufficient information to suggest that the story was legit.

I am unaware of any other site doing anything at all with the link. Google has flatly denied ever taking any action with regards to the link.

So why is Ferguson making up a thing that didn’t happen? Why is he claiming that they all “simultaneously” did things that none of them did? Why is this man entrusted with an FTC commissionership?

And the craziest thing here, as I noted just above, is that ELON MUSK DID THE EXACT SAME THING, BUT EVEN MORE DRACONIAN when he banned all links to the story about the JD Vance dossier. But, of course, because it was in the other direction, everyone just ignores it.

Think about what kind of world we’re living in here.

Commissioner Ferguson pretends that what Twitter didn’t do (but which Elon did do) is somehow evidence of harms of other platforms, and argues that they should all be forced, by the power of the FTC, to follow Musk’s policies on other sites, even though Musk’s policies way more closely resemble the thing he’s complaining about… which no other site (other than Elon’s X) actually did.

This is through the looking glass fantasy world bullshit.

He then cites the Murthy v. Missouri case, hilariously admitting that the Supreme Court found no evidence of coercion to suppress speech, but then saying that discovery proved that it did happen. Literally the thing that the Supreme Court said didn’t happen, Ferguson says did happen. The fact that the Supreme Court explicitly found no evidence of government coercion to suppress speech doesn’t just undermine Ferguson’s argument, it demolishes it.

But in the modern MAGA GOP, if you don’t like the facts, you just make up new ones.

He then returns to the ridiculous idea that advertisers choosing in a free market not to advertise on a platform that fails to keep their brands safe and is increasingly just full of bots and spam… is somehow illegal:

Shortly after Twitter (now X) was purchased by a free-speech champion, major advertisers raced for the door and refused to advertise on X. Concerted refusals to deal—also known as group boycotts—are illegal under the Sherman Act. According to X, this mass advertiser exodus was concerted, and was facilitated by the World Federation of Advertisers’ Global Alliance for Responsible Media (GARM) initiative. GARM described itself as a coalition of “marketers, media agencies, media platforms, industry associations, and advertising technology solutions providers to safeguard the potential of digital media by reducing the availability and monetization of harmful content online.”

Ferguson can’t even stop there. He picks up on the other ridiculous conspiracy theory we’ve debunked multiple times, that NewsGuard (again, a site created by the very conservative Republican former publishers of the Wall Street Journal) is somehow engaged in “censorship” by… giving its opinion on how trustworthy news sites are.

NewsGuard, for example, “is a domestic for-profit business that rates the credibility of news and information outlets and tells readers and advertisers which outlets they can trust.”16 Like GARM, NewsGuard claims to promote “brand safety” for advertisers. “NewsGuard leverages ‘human intelligence’ (journalists on staff) to dictate an outlet’s trustworthiness. Those deemed ‘untrustworthy’ are then compiled into ‘exclusion lists,’ with ‘trustworthy’ sites on inclusion lists,’ which are licensed to advertisers to instruct their ad agencies and ad-tech partners to keep their programmatic ads off/on these sites.” If a website gets a poor rating on NewsGuard’s “nutrition label,” it can choke off the advertising dollars that are the lifeblood for many websites— including platforms on which millions of Americans every day speak their minds. NewsGuard “goes to great lengths to create the appearance of nonpartisanship and objectivity,” but it seems to give a free pass to deceptive and biased news coverage by major left-leaning outlets. NewsGuard is, of course, free to rate websites by whatever metric it wants. But the antitrust laws do not permit third parties to facilitate group boycotts among competitors.

Just last week, when the FCC’s Brendan Carr went after NewsGuard, I went into detail on how ridiculous it was, so I need not do so again here. But just think of what he’s saying here: that “more speech” in the marketplace of ideas could be considered an illegal boycott if multiple companies rely on that opinion to choose to no longer do business with a company.

It is difficult to express how detached from reality this is.

This is the exact opposite of supporting “free speech.” This is literally saying that if a private entity shares its opinion, and multiple third parties agree with that opinion and choose not to support a business the GOP likes because of that opinion, the speech can be deemed an illegal boycott.

The only purpose of making such an argument is to create chilling effects for criticism of any entities Ferguson and the Trumpist GOP supports.

This is the opposite of free speech and free markets. This is authoritarian censorial (not censorious) bullshit.

Filed Under: 1st amendment, advertising, andrew ferguson, antitrust, collusion, content moderation, free speech, ftc, melissa holyoak, section 230
Companies: goat, twitter, x

Where Open Access Has Failed To Reform Academic Publishing, Perhaps Antitrust Law Will Succeed

from the go-get-'em dept

The open access movement has been trying for over 20 years to promote the widest access to knowledge. Sadly, as numerous Walled Culture posts have chronicled, what should be a matter of social justice has been subverted by clever and cynical moves from the academic publishing industry in order to retain their fabulous profit margins. As a result, the open access movement has failed to deliver cost-free access to academic papers, or to ease the process of sharing knowledge, at least on the scale that it initially aimed for. That makes a completely different approach to tackling the problems of academic publishing, using US antitrust laws, extremely interesting.

The press release from the law firm that filed the lawsuit, Lieff Cabraser Heimann & Bernstein, claims that “publishers conspired to unlawfully appropriate billions of dollars that would otherwise have funded scientific research.” There are three main components to the alleged antitrust activities of the six academic publishers named – Elsevier, Springer Nature, Taylor and Francis, Sage, Wiley, and Wolters Kluwer.

First, the fact that peer review, whereby other academics review their colleagues’ submitted papers, is unpaid work. The lawsuit claims that the six named publishers “coerce scholars into providing their labor for nothing by expressly linking their unpaid labor with their ability to get their manuscripts published in the defendants’ preeminent journals.”

Secondly, the antitrust complaint points out that publishers “agreed not to compete with each other for manuscripts by requiring scholars to submit their manuscripts to only one journal at a time, which substantially reduces competition by removing incentives to review manuscripts promptly and publish meritorious research quickly.” This is known as the Ingelfinger rule. The third component of the complaint, perhaps the most interesting for readers of this blog, is that academic publishers prohibit scholars from freely sharing the scientific advancements described in submitted manuscripts while those manuscripts are under peer review, something that often takes over a year. As the antitrust complaint puts it:

From the moment scholars submit manuscripts for publication, the Publisher Defendants behave as though the scientific advancements set forth in the manuscripts are their property, to be shared only if the Publisher Defendant grants permission. Moreover, when the Publisher Defendants select manuscripts for publication, the Publisher Defendants will often require scholars to sign away all intellectual property rights, in exchange for nothing. The manuscripts then become the actual property of the Publisher Defendants, and the Publisher Defendants charge the maximum the market will bear for access to that scientific knowledge

The lawsuit claims that the actions of the academic publishers are not only illegal under the US Sherman Antitrust Act, but that they have resulted in “perverse market failures that impair the ability of scientists to do their jobs and slow dramatically the pace of scientific progress.” According to the complaint, this has led to a worsening of the peer review crisis, which has seen fewer scholars willing to provide their work for free. More generally, it has “held back science, delaying advances across all fields of research.”

The lawsuit seeks treble damages, together with injunctive and other relief, “including an order to enjoin the defendants from continuing to violate the law by requiring them to dissolve the challenged unlawful agreements.” All-in-all, it’s a clever way of trying to tackle the key problems of academic publishing. Whether it will go anywhere remains to be seen, but it’s good that someone is at least trying something new.

Follow me @glynmoody on Mastodon and on Bluesky. Originally published to Walled Culture.

Filed Under: academic publishing, academics, antitrust, collusion, ingelfinger rule, knowledge sharing
Companies: elsevier, sage, springer nature, taylor & francis, wiley, wolters kluwer

Google Antitrust Remedies: Promoting Competition Without Punishing Users

from the some-ideas-are-better-than-others dept

Considering how to increase competition in the search space without damaging end users is a trickier question than it seems at first. Many of the suggestions that people have tossed out have tended to focus on ideas that are purely punitive to Google, but which would also have negative impacts on users (and even some competitors). As we reach the stage of the antitrust battle where remedies are actually being considered, it’s crucial that we focus on solutions that will truly promote competition and benefit users, not just score political points against Google.

Earlier this year, I was left troubled by the end result of the ruling against Google in the first (of a few) antitrust cases against it. I think the (currently ongoing) case about the company’s practices regarding advertising is a lot stronger. The case that was ruled on this summer, though, was about Google’s massive payments to Apple and Mozilla to have those companies have Google search as the default on Apple devices/Safari and on Firefox.

At the time, we pointed out that it was difficult to think of any remedies that actually helped solve the situation. Both Apple and Mozilla more or less admitted during the trial that users effectively demanded Google search be the default, and any attempt to use other search engines resulted in angry users. If the court demanded Google stop paying the billions of dollars to Apple or the hundreds of millions of dollars to Mozilla, it wouldn’t hurt Google. Indeed, it would seem to help them.

Since both companies admitted that users were demanding Google as the default, little would change there other than Google getting to keep even more money. And Apple and (especially) Mozilla losing a ton of revenue. That didn’t seem very helpful at all.

In the intervening months, I’ve had a few conversations with folks about possible remedies that make sense. The most reasonable suggestion seemed to be DuckDuckGo’s main suggestion: allow other search engines to build off of Google’s search corpus by enabling API access under Fair, Reasonable and Non-Discriminatory (FRAND) grounds.

The best and fastest way to level this playing field is for Google to provide access to its search results via real-time APIs (Application Programming Interfaces) on fair, reasonable, and non-discriminatory (FRAND) terms. That means for any query that could go in a search engine, a competitor would have access to the same search results: everything that Google would serve on their own search results page in response to that query. If Google is forced to license its search results in this manner, this would allow existing search engines and potential market entrants to build on top of Google’s various modules and indexes and offer consumers more competitive and innovative alternatives.

Today, we believe that we already offer a compelling search alternative with more privacy and fewer ads, relative to Google. We’ve also been working for fifteen years to make our search results on par in terms of feature set and quality by combining our own search indexes with those of partners like Apple, Microsoft, TripAdvisor, Wikipedia, and Yelp. However, we know that many consumers still prefer Google’s results due to the benefits of scale discussed above, and this intervention would erase that advantage, instantly making us and others much more competitive.

This remedy would certainly allow for more competition to arise, which has proven difficult today. No one (not even Microsoft’s Bing) really has the reach and comprehensiveness of Google’s index. DuckDuckGo is mostly built on Bing (I know it insists it’s more than that, but in practice, it appears to be mostly Bing — as we discovered when Bing banned Techdirt, and we also disappeared from DDG).

Every attempt to build competing search engines seems to run into the scale problem eventually without access to Google results. Even Kagi, which was briefly a darling among folks looking for a search alternative, apparently makes use of Google’s search tech on the backend. It seems like a pretty reasonable idea to make it so that others can license access to the API and build Google results into alternative search products, as this gets at the actual issues underlying this case.

A few weeks ago, the Justice Department filed its preliminary thoughts on remedies, and there are a wide mix of ideas in there, some crazier than others. A lot of the headlines that filing generated were around big “break up” ideas: spinning off Chrome or Android. These seem preposterous and unlikely. Under antitrust law while breakups (“structural remedies”) are certainly one tool in the toolbox, they are supposed to be related to the violation at hand.

Given that the antitrust problem in this case was about the search payments, and not anything specific to Chrome or Android, it’s difficult to see how such remedies would even be allowed under the law, let alone make sense. Indeed, without Chrome and Android being attached to Google, those products would likely suffer, as both are subsidized by Google, and that would do a lot to harm users. That doesn’t seem like a good result either.

So the proposals from the DOJ that match DDG’s suggestion of API access are much more interesting (and probably better) overall.

Plaintiffs are considering remedies that will offset this advantage and strengthen competition by requiring, among other things, Google to make available, in whole or through an API, (1) the indexes, data, feeds, and models used for Google search, including those used in AI-assisted search features, and (2) Google search results, features, and ads, including the underlying ranking signals, especially on mobile

Again, this seems to actually target the issue. It creates a scenario for increased competition without a corresponding harm to users or to other competitors. Many of the other sections do not.

Also, arguably, the DOJ could have gone even further, conveying on users more ability to designate access to information and data as a way to escape the silo of Google. This is a bigger issue and one that doesn’t get as much attention, but the ability of large companies to lock in users has diminished the ability of competitors to grow and challenge the network effects of existing businesses.

For some users of Google, the fact that it tracks your history is not seen as creepy or privacy invading, but rather a benefit for that user (and yes, this is not true for everyone!). But if the user could retain control over their own search histories and preferences, and allow third party search engines to access it with the user’s permission it would also help users get out of an existing silo.

Just as one example, Google knows a fair bit about what I normally search on and click on. But if I could make use of that history and give DuckDuckGo or Kagi or someone else access to it for the sake of improving their own search results to my queries, that would be potentially useful for competition. And all it’s really doing is saying that the user who generated that history and metadata should have some control over it as well, including separating it from the underlying Google product.

Yes, this would have to be done carefully, to avoid (say) exposing more sensitive data regarding searches to these other companies, but if it was done in a way that was transparent, and which the end user had control over, it could be really valuable.

Not surprisingly, Google is very, very upset about all these potential remedies. It suggests that if they were forced to share such things with others, it would lead to privacy and security risks:

Forcing Google to share your search queries, clicks, and results with competitors risks your privacy and security. It’s widely recognized, including explicitly by the DOJ in its outline, that forcing the sharing of your searches with other companies could create major privacy and security risks. The search queries you share with Google are often sensitive and personal and are protected by Google’s strict security standards; in the hands of a different company without strong security practices, bad actors could access them to identify you and your search history — as we’ve seen before. Additionally, while sharing Google’s search results with others might create a few copycats, it could also decrease incentives for other companies to actually innovate in search.

This very much depends on what information is shared, with whom, and how. I still think that simply giving the user more control over it, rather than just letting companies fight over access, solves some of Google’s stated concerns.

On the whole, the larger structural remedies (spinning off lines of business) don’t seem to target the underlying issue, seem mainly punitive, and won’t do much to help competition or users. But the idea of opening up access to search systems and data, especially if it gives more control to the end user actually seems like a really good way of increasing competition and improving the situations for users.

Google’s statements about security and privacy are still ones worth considering, but there are ways to deal with those issues, mainly by providing more power to the end user, rather than just opening up that info directly to other search engines.

Filed Under: android, antitrust, api, breakups, chrome, competition, data, doj, frand, remedies, search, search history, silos, structural remedies
Companies: duckduckgo, google

Jim Jordan & Elon Musk Suppressed Speech; Don’t Let Them Pretend It’s A Win For Free Speech

from the that's-the-opposite-of-free-speech dept

Up is down, left is right, day is night. And now, to Jim Jordan and Elon Musk, clear, direct government censorship is, apparently, “free speech.”

This isn’t a huge surprise, but on Thursday, the World Federation of Advertising shut down GARM, the Global Alliance for Responsible Media, in response to legal threats from ExTwitter and Rumble, and a bullshit Congressional investigation led by Jim Jordan.

As we have detailed, GARM was setup following the mosque shootings in New Zealand, which was livestreamed. Brand advertisers were accused (arguably unfairly) of profiting off of such things, so they put together this alliance to share information about best practices on social media advertising for brand safety.

GARM was specifically a way for advertisers to set up those best practices, share them with each other, but also to share them with social media sites, to say “hey, this is the kind of trust & safety processes we expect if we’re going to advertise.”

I disagreed with GARM about lots of things, but in a free market, where there is free speech, they should absolutely be allowed to create best practices and to talk with platforms and advertisers and advocate for better trust & safety practices in order for brands to feel safe that their ads won’t show up next to dangerous content.

All of it was entirely voluntary. Advertisers didn’t have to abide by the standards, nor did platforms. This was literally just part of the marketplace of ideas. Some advertisers advocated for efforts to be made to protect their brand safety, and some platforms agreed while others, like Rumble, did not.

All GARM was at its core was advertisers using their own freedom of expression and rights of association to try to put some pressure on platforms to be better stewards, so that advertisers weren’t putting their brands at risk. You can (perhaps reasonably!) argue that they pushed too hard, or some of their requests were unreasonable, but it’s their free speech rights.

As we’ve detailed over the last month, ExTwitter had regularly used GARM’s standards to try to convince advertisers they were “safe” and officially “excitedly” rejoined GARM as a member just last month. A few days later, Jim Jordan’s House Judiciary Committee released a blisteringly stupid and misleading report, falsely claiming that GARM was engaged in antitrust-violating collusion to punish conservative media. None of that was ever true.

However, Elon announced that he would be suing GARM and hoped that criminal charges would be filed against GARM, perhaps not realizing his own organization had rejoined GARM a week earlier and touted that relationship in its effort to attract advertisers. Earlier this week, he carried through on that plan and sued GARM for alleged antitrust violations.

The lawsuit is absolutely ridiculous. It assumes that because GARM, at times, criticized Elon’s handling of trust & safety issues, that was a form of collusion that abused its monopoly position to get advertisers to stop advertising on ExTwitter.

It is one of the most entitled, spoiled brat kind of lawsuits you’ll ever see. Not only does it seem to suggest that not advertising on ExTwitter is an antitrust violation, it assumes that the only reason that advertisers would remove their ads from the site was not due to any actions by the company or Elon_,_ but rather that it must be because GARM organized a boycott (which, notably, none of the evidence shows they did). One thing is quite clear from all this: Elon seems incapable of recognizing that the consequences of his own actions fall on him. He insists it must be everyone else’s fault.

Indeed, the sense of entitlement shines through from those involved in this whole process.

For example, Rumble’s CEO Chris Pavlovski more or less admitted that if you turn him down when he asks companies to advertise, you would now get sued. The sheer, unadulterated entitlement on display here is incredible:

Rumble had sued GARM alongside ExTwitter, using some of the same lawyers that Elon did. When tweeting out the details to prove that these advertisers should be added to his lawsuit, Pavlovski only showed perfectly friendly emails from companies saying “hey, look, advertising on your site won’t be good for our reputation, sorry.”

That’s not illegal. It’s not collusion. It’s the marketplace of ideas saying “hey, we don’t want to associate with you.” But, according to Rumble, that alone deserves a lawsuit.

Anyway, the World Federation of Advertisers has apparently given in to this lawfare from Elon and Jim Jordan and announced on Thursday that they were shutting down GARM because of all of this.

In other words, Elon, Jordan, and others have used the power of the state, both in the form of lawsuits and congressional investigations, to browbeat advertisers into no longer speaking up about ways to keep social media sites safe for their brands.

This is the exact opposite of free speech. It’s literally using the power of the state to shut up companies which were expressing views that Elon and Jordan didn’t like.

And, so, of course, they and their fans are celebrating this state-backed censorship as a “win for free speech.” It’s ridiculously Orwellian.

This is not a “win” for the First Amendment in any way. It is, in every way, the opposite. The House Judiciary Committee, under Jim Jordan, abused the power of the state to shut up companies from talking about which sites they felt were safe for brands or what those sites could do to be better.

And, of course, a bunch of other very foolish people repeated more of this kind of nonsense, including some of MAGA’s favorite journalists, who pretend to support free speech. Ben Shapiro called it an “important win for free speech principles,” which is just disconnected from reality.

Linda Yaccarino claims it proves that “no small group should be able to monopolize what gets monetized.” This makes no sense at all. No small group monopolized anything. They just tried to put in place some basic best practices to protect their brands and no one had to agree with them at all (and many didn’t).

And if Linda or Elon thinks this will magically make advertisers want to come back to ExTwitter, they’re even more delusional than I thought. Who would ever want to advertise on a platform that sued advertisers for leaving?

Filed Under: 1st amendment, advertising, antitrust, best practices, censorship, elon musk, entitlement, free speech, garm, jim jordan
Companies: garm, rumble, twitter, wfa, world federation of advertisers, x