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House Judiciary Committee Chairman Jim Jordan recently launched an investigation into the World Federation of Advertisers, the Global Alliance for Responsible Media, advertisers and agency holding companies over concerns that brands are not advertising on conservative social media platforms like X.
Jordan has too opened an inquiry to the Omnicom and IPG merger based on these concernsalthough such holding companies let their clients decide where to advertise.
Meanwhile, FCC Commissioner Brendan Carr accused large technology companiesincluding Meta, Google and Apple, to “censor” conservatives because companies sometimes moderate false and misleading information. The investigation of Jordan and Carr is based on misapplication of antitrust claims without supporting evidence.
In these investigations, Jordan and Carr accuse NewsGuard, a news service (and our direct competitor), of judging the reliability of outlets on the right compared to those on the left. These allegations are tainted by prosecutorial bias and inconsistent with the evidence.
Regardless of the results of their evaluation, NewsGuard is rightfully defending himself claiming that its activities are fully protected under the First Amendment as free speech and a free press. Additionally, there is another First Amendment issue at stake: the free speech rights of the advertising companies themselves.
Advertising adjacent to news is protected speech
As government officials, Jordan and Carr risk violating the First Amendment free speech rights of advertising agencies, brands, and tech companies by conducting nuisance investigations. Because they seem to be doing it to intimidate and freeze speech— speech associated with political content – probably already crossed the line.
Corporations have a First Amendment the right to freedom of speech – this includes both commercial and political speech. Where ordinary commercial speech is subject to “continuous scrutiny,” any violation of political speech is subject to “strict scrutiny,” the highest standard.
Advertising is a speech as well as a choice where advertise. Ad placement is an implicit sponsorship of adjacent content (online, on TV or social media). Advertisers do No actively choose content alongside your ads. But if they are choosing a socket specifically based on the political nature of the contentthis choice becomes a fundamental political expression that cannot be curtailed by the government.
Moreover, the government is limited convincingly speech of companies. It may reasonably enforce product safety or financial disclosure, but mandating where an advertiser spends its advertising dollars would be an unprecedented, unconstitutional shakedown. The Supreme Court has generally ruled against companies being forced to advertise in a way that is against their interests (see United States v. United Foods, Inc.), and especially speaking in a way that contradicts their political views (303 Creative LLC v. Elenis).
Many large advertisers don’t advertise in news or political content at all due to unfounded “brand safety” concerns – now widely exposed the idea that consumers have a worse perception of brands if they appear next to them no news content. News sites—conservative, liberal, centrist, local, national, and international—are being demonetized simply for being news.
Even if Jordan and Carr wanted to nobly solve the problem of news demonetization, the doctrine of compelled speech would prevent them from doing so—especially if they order them to advertise next to overtly political news content they don’t wish to support.
Many Americans misunderstand the guarantees of free speech because they confuse the constitutional right of the First Amendment with the broader ethics of “free speech.” Some mistakenly believe that companies must allow individuals to speak in their forums without restriction. In fact, First Amendment protections expressly limit the government from infringing on the speech rights of private individuals and entities. Its protection does not bind the actions of private companies.
It is especially ironic that CEO Mark Zuckerberg recently announced that Meta will stop fact-checking in the name of freedom of speech. Meta has an almost absolute First Amendment right and Section 230 to fact-checking and content moderation in general: Meta and Zuckerberg would have strong defenses against any government pressure, such as prison threats from the president. It is a choice for the Meta not to defend their right to moderate and to explicitly announce that they will voluntarily moderate less.
And if Meta platforms are now distributing more political content objectionable to brands, and advertisers are subsequently pulling out, brands would have a strong First Amendment defense against any government pressure to refuse to advertise there.
Performance leveling
Under the guise of preventing “censorship,” Jordan and Carr attack the First Amendment right of private companies to choose what kinds of political content to support.
The advertising industry should defend itself against this overreach. It established “responsible media” practices for good reason: Advertising dollars shape our information environment. Their commitment to content that aligns with brand values is good for business. Those attacking this constitutionally protected activity use a combination of government investigations, private lawsuits, and partisan harassment in the press and on social media to shape companies’ behavior to their political views.
As leaders in one of our nation’s largest industries, advertising industry executives and their companies have the power to fight back. The Constitution is squarely on their side. They should not back down.
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