House Judiciary Committee Chairman Jim Jordan recently initiated investigations into the World Federation of Advertisers, the Global Alliance for Responsible Media, advertisers and agency holding companies based on concerns that brands are not advertising on conservative social media platforms like X.
Jordan has also opened an inquiry into the merger of Omnicom and IPG based on these concerns, even though such holding companies let their clients decide where to advertise.
Meanwhile, FCC Commissioner Brendan Carr has accused large tech companies, including Meta, Google and Apple, of “censoring” conservatives because the companies sometimes moderate false and misleading information. Jordan and Carr’s investigations are based on a misapplication of antitrust claims devoid of supporting evidence.
As part of these inquiries, Jordan and Carr are accusing NewsGuard, a news rating service (and our direct competitor), of assessing the reliability of outlets on the right unfairly compared to those on the left. These accusations are marred by the bias of the accusers and contradicted by evidence.
Regardless of the results of their ratings, NewsGuard rightly defends itself by claiming its activities are fully protected under the First Amendment as free speech and free press. Plus, there is another First Amendment issue at stake: the free speech rights of the advertising companies themselves.
News-adjacent advertising is protected speech
As government officials, Jordan and Carr risk infringing the First Amendment free speech rights of ad agencies, brands and tech companies by conducting vexatious inquiries. Because they appear to be doing this to intimidate and chill speech – speech associated with political content – they likely have already crossed the line.
Corporations have a First Amendment right to free speech – that includes both commercial and political speech. Where ordinary commercial speech is subject to “intermediate scrutiny,” any infringement of political speech is subject to “strict scrutiny,” the highest standard.
Advertising is speech, as is the choice of where to advertise. The placement of an advertisement is an implicit sponsorship of the adjacent content (online, on TV or social media). Advertisers do not actively choose the content next to their ads. But if they are choosing an outlet specifically based on the political nature of the content, this choice becomes core political speech that the government cannot restrict.
Further, the government is limited in compelling companies’ speech. It can reasonably compel product safety or financial disclosures, but mandating where an advertiser spends its advertising dollars would be an unprecedented, unconstitutional shake-down. The Supreme Court has generally ruled against forcing companies to advertise in ways contrary to their interests (see United States v. United Foods, Inc.), and particularly to speak in ways contrary to their political viewpoints (303 Creative LLC v. Elenis).
Many large advertisers don’t advertise in news or political content at all because of unfounded “brand safety” concerns – the now widely debunked idea that consumers have worse perceptions of brands if they appear next to any news content. News sites – conservative, liberal, centrist, local, national and international – are being demonetized simply because they are news.
Even if Jordan and Carr wanted to nobly solve the problem of news demonetization, compelled speech doctrine would prevent them from doing so – especially if they mandate that they advertise next to overtly political news content that they do not wish to endorse.
Many Americans misunderstand free speech guarantees because they conflate the constitutional First Amendment right with a broader ethic of “free speech.” Some erroneously believe that companies must allow individuals to speak on their forums without limitation. In fact, the First Amendment protection specifically limits the government from infringing on the speech rights of private individuals and entities. Its protection does not bind private companies’ actions.
It is particularly ironic that CEO Mark Zuckerberg recently announced Meta would stop fact-checking in the name of free expression. Meta has a near absolute right under the First Amendment and Section 230 to fact-check and moderate content in general: Meta and Zuckerberg would have a strong defense to any kind of government pressure, such as threats of jail time from the president. It is a choice for Meta not to defend their right to moderate and explicitly announce they will voluntarily moderate less.
And if Meta platforms now distribute more political content objectionable to brands, and advertisers subsequently pull back, the brands would have a strong First Amendment defense to any governmental pressure about their refusal to advertise there.
Balancing power
Under the guise of preventing “censorship,” Jordan and Carr are attacking the First Amendment rights of private companies to choose what kinds of political content they support.
The ad industry should fight back against this overreach. It has enacted “responsible media” practices for good reason: Ad dollars shape our information environment. Deploying them toward content that aligns with a brand’s values is good for business. Those attacking this constitutionally protected activity are using a combination of government investigation, private lawsuits and partisan press and social media harassment to mold the behavior of companies to their political viewpoints.
As leaders in one of our country’s biggest industries, ad 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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