The Federal Trade Commission recently requested public comment from users of tech platforms. In particular, the impact the platforms may have on user speech. Input is sought -by May 21- on the extent to which tech firms are engaging in potentially suppressing free speech.

Using terms like “censorship,” “demonization,” and “shadow banning,” this request for public comment signals a new direction of the agency under Andrew Ferguson. The direction being taken reflects the concern expressed before the new administration: that tech platforms were using their roles to censor speech (see Murthy v. Biden).

The request is unlike those we had seen in the past from the FTC, insofar as it requests comment about the tech platforms not from the platforms themselves, but instead directly from users. As of this writing, the agency had received over 1,000 comments. Among other things, the agency has asked people to provide input on:

1. Impact: Whether tech platforms banned users from the platform because of the content of their speech, or took other adverse actions and the extent to which those actions adversely impacted them. Relatedly, the request asks if people were given a “meaningful” way to challenge adverse decisions.
2. Moderation: Whether there were moderation policies in place, and if the platform told people (even implicitly) that they could appeal the platforms’ decisions. Also asked was whether the platforms used “opaque” or “unpredictable” processes to restrict access.
3. Pressure: Interestingly, the request asks potential commenters to speculate on “factors [that] motivated platforms’ decisions.” Included in these might be measures that resulted in them getting banned from the platform. This includes suggestions like pressure from advertisers, state or local governments, or foreign governmental action.
4. Competition: If the tech platforms were coordinating directly or through trade associations about policy and adverse actions. 

Putting it into Practice: Private platforms’ moderation policies date to the early days of the Internet, and the Digital Millennium Copyright Act and the Communications Decency Act. These policies typically indicate that content that violates the policy will be removed (the alternative -modifying content- would run the risk of the platform participating in the creation of the content, losing the shield of the DMCA or CDA). We anticipate comments from industry groups, in addition to the many already received from users themselves. The comment period closes May 21.

James O'Reilly also contributed to this article.

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