In one of its first actions after establishing new leadership, the United States Federal Trade Commission has issued a request for public comment "to better understand how technology platforms deny or degrade (such as by ‘demonetizing’ or ‘shadow banning’) users' access to services based on the content of users' speech or their political affiliations, including activities that take place outside the platform.” The request for comment is open now and closes on May 21, 2025.

The request, which expressly inquires about policies of platforms including social media, video sharing, ride sharing, event planning, and other internet services, follows an Executive Order (EO) entitled “Restoring Freedom of Speech and Ending Federal Censorship.” The EO responds to concerns raised about alleged pressure placed by the Biden Administration during COVID and other political events allegedly to coerce popular internet platforms into suppressing content with which they disagreed. In a June 2024 decision, however, the US Supreme Court rejected a legal claim brought by two states and seven individuals alleging that they were banned from social media platforms due to undue governmental influence.

The FTC's request seeks to resurrect these claims by soliciting evidence that the platforms implemented either express or tacit political judgments in their decisions to restrict users' access to certain content. Although it seems quite clear that platforms may implement contractual terms of service banning certain kinds of speech, it would be potentially problematic if those platforms changed the rules midstream by surreptitiously engaging in what is commonly called “shadow banning.” Shadow banning refers to the alleged practice of platforms downgrading or restricting access to putatively controversial posts – often without informing the original poster. This can cause the poster, who thinks their post is “live,” to see reduced engagement or reach, which can negatively impact their business prospects.

The truth is that social media platforms have created a new class of entrepreneurs who are compensated based on how many platform visitors see and engage with their original content. The more controversial the content, the more views it is likely to generate – and in the social media algorithms, this will typically cause the content to be elevated. For example, testimony and evidence in the Sandy Hook parents' lawsuit against Alex Jones purportedly showed that his revenues increased by about 500% after he aired a show claiming that the Sandy Hook massacre was a hoax.

The platform will sell and place advertising alongside the more engaging content, promising advertisers that this will net greater viewership and, presumably, higher conversion rates. The platforms may compensate high-engagement-achieving posters. When a platform bans (either expressly or silently) their posts, however, this can harm their “business” of creating engagement.

Whether shadow banning actually happens is hard to pinpoint. No platform currently admits that it engages in the practice, even though this might be a less destructive way to handle inflammatory content than outright de-platforming. What the FTC is clearly after here, however, is evidence from the field regarding this practice and the entry of orders that would reverse such policies if they exist. Part 1 consists of gathering evidence - a prerequisite to further action. Part 2 may target the platforms.

The EO and FTC request are likely overzealous in their references to “censorship.” Speech bans that violate the First Amendment are typically governmental, not private. What this request seems to focus on, however, are possibly undisclosed restrictions on speech that are nevertheless imposed upon users without warning – a classic “unfair” practice if they actually contradict the contracts embodied in the terms of service or written platform policies. Thus, the FTC is looking more to fairness in contract implementation than to speech per se. The request for comment is likely to generate substantial interest from disgruntled, social media entrepreneurs who believe they were subject to unfair actions by the platforms.