After the Federal Trade Commission (FTC) announced it would approve an ad agency merger if the combined company agrees to never “refuse to place ads on websites for political reasons,” Fordham Law Professor Olivier Sylvain—who previously served as a senior advisor to FTC Chair Lina Khan—spoke with The New York Times about the First Amendment protection for commercial advertising.
Formerly known as Twitter, the platform suffered an advertiser exodus after Elon Musk took it over and began using it to promote right-wing talking points, including antisemitism and conspiracy theories. In 2023, dozens of advertisers suspended their spending after two media watchdog groups, the Center for Countering Digital Hate and Media Matters, revealed how X was profiting from accounts that spread hate and misinformation and that major brands’ ads were appearing near pro-Nazi content. X responded by suing both the watchdog groups, as well as an advertising trade group and several leading advertisers it accused of illegally boycotting its business.
Then in May, the F.T.C. began investigating roughly a dozen advertising and advocacy groups including Media Matters to determine if they were engaged in a conspiracy or collusion by encouraging advertisers to boycott X and other websites. Media Matters has since sued the F.T.C., but in the meantime, the organization has dialed back its criticism and is considering closing in the face of steep legal fees.
The F.T.C.’s recent efforts essentially bolster X’s legally dubious argument that advertisers don’t have the right to freedom of expression. The agency’s conditions for approving the ad merger are “blatantly inconsistent with the First Amendment right of advertisers not to associate their brands with content or viewpoints that they know consumers find objectionable,” said Olivier Sylvain, a law professor at Fordham University.
Read “Trump Moves to Silence a New Target” in The New York Times.