Media Matters for America v. FTC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 25-5302 September Term, 2025

1:25-cv-01959-SLS

Filed On: October 23, 2025

Media Matters for America,

Appellee

v.

Federal Trade Commission, et al.,

Appellants

BEFORE: Millett, Wilkins, and Walker*, Circuit Judges

ORDER

Upon consideration of the emergency motion for stay pending appeal, the

response thereto, and the reply; and the amicus curiae brief filed by the Foundation for

Individual Rights and Expression, which the court construes as containing a consent

motion for leave to participate as amicus curiae, it is

ORDERED that the motion for leave to participate as amicus curiae be granted.

It is

FURTHER ORDERED that the motion for stay be denied.

On November 16, 2023, Media Matters, a “non-profit media watchdog[,]” reported

that “corporate advertisements on X appeared adjacent to antisemitic posts, and that

[Elon] Musk had endorsed an antisemitic conspiracy theory.” Media Matters for

America v. Paxton, 138 F.4th 563, 569 (D.C. Cir. 2025); see also Media Matters for

America v. Federal Trade Comm’n, No. 25-cv-1959, 2025 WL 2378009, at *3 (D.D.C.

Aug. 15, 2025) (“Opinion”). Soon thereafter, Elon Musk “promise[d] to file ‘a

* A statement by Circuit Judge Walker dissenting from the denial of a stay is attached.

United States Court of Appeals

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No. 25-5302 September Term, 2025

thermonuclear lawsuit against Media Matters[.]’” Paxton, 138 F.4th at 569; Compl.

¶¶ 38, 46, Media Matters, No. 25-cv-1959, Dkt. No. 1; Opinion, at *3.

The next day, Stephen Miller, who was then a private citizen, and at all times

relevant to this motion is the White House Deputy Chief of Staff, responded to a post on

X about the Media Matters article, stating that fraud was unlawful and “[t]here are 2

dozen+ conservative state Attorney Generals[.]” Compl. ¶¶ 10, 40; Opinion, at *3.

Within a few hours, the Missouri Attorney General responded to that post saying, “My

team is looking into this matter.” Compl. ¶ 41; Opinion, at *3; see Paxton, 138 F.4th at

571. And the next day, the Texas Attorney General announced an investigation into

Media Matters under Texas’s Deceptive Trade Practices Act. Paxton, 138 F.4th at 569;

Compl. ¶ 42; Opinion, at *3.

That same day, X Corp. filed suit in federal district court against Media Matters

and the reporter who wrote the article about the X posts and Elon Musk’s endorsement.

Paxton, 138 F.4th at 569; Compl. ¶ 45; Opinion, at *3. Within 24 hours, the Texas

Attorney General issued a civil investigative demand to Media Matters for a large

number of records, including “communications with possible sources at X and its

advertisers,” and documents on Media Matters’ “internal operations, structure,

expenditures, and reporting process.” Paxton, 138 F.4th at 569; Compl. ¶¶ 43, 45;

Opinion, at *3; Decl. of Benjamin Dimiero at 6 ¶ 15, Media Matters, No. 25-cv-1959, Dkt.

No. 22-6.

In the following “weeks and months,” Media Matters was sued by X’s subsidiaries

across the world and received an additional civil investigative demand, this time from

the Missouri Attorney General. Compl. ¶¶ 44–46; Opinion, at *1, *3, *20; Dimiero Decl.

at 6 ¶¶ 16–17.

By late 2024, federal courts had preliminarily enjoined both Missouri’s and

Texas’s investigative demands on the ground that they were likely issued in retaliation

for Media Matters’ speech, in violation of the First Amendment. Paxton, 138 F.4th at

572–573; Compl. ¶¶ 50–52; Opinion, at *3. Then, in November 2024, Andrew N.

Ferguson, a Commissioner of the Federal Trade Commission, committed to “stand[] up

to * * * the radical left” and “[i]nvestigate * * * advertiser boycotts[.]” Compl. ¶ 59;

Opinion, at *4. He emphasized that “it’s really important that the FTC take investigative

steps in the new administration” because “progressives” who are “fighting

disinformation” are “not going to give up just because of the election[.]” Opinion, at *1,

*4, *19; Compl. ¶¶ 61, 65.

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Commissioner Ferguson was named Chair of the Federal Trade Commission ten

days later. Opinion, at *20; see also Compl. ¶ 70. Over the next few months, he

brought in several senior staffers who had previously commented that Media Matters

“employed a number of stupid and resentful Democrats” and was “scum of the earth.”

Compl. ¶ 70; Opinion, at *5. And, in April 2025, he reportedly met to discuss antitrust

matters with an “outside adviser” to the administration, who (1) had publicly stated that

Media Matters’ X accounts should be “nuke[d]” because “[t]hey’re a cancer to free

speech”; (2) had solicited money to “build our (growing) list of leftists to throw in the DC

gulag,” including the Media Matters journalist who wrote the article about X

advertisements and Elon Musk, as well as another Media Matters journalist; and (3) had

posted the following: “Advertiser boycotts are highly effective tactics leftists use to cow

media executives to destroy free speech—and control the political narrative. [Media

Matters] is the driving force behind conservative media getting crushed—and

conservative voices silenced.” Compl. ¶¶ 64, 71; Opinion, at *4.

Less than a month after that meeting, on May 20, 2025, the Commission issued

a sweeping sixteen-page civil investigative demand to Media Matters. Civil Investigative

Demand, Media Matters, No. 25-cv-1959, Dkt. Nos. 1-4, 22-3; see Compl. ¶ 73;

Opinion, at *5; Dimiero Decl. at 6–7 ¶ 18. The Demand omitted the statutorily required

explanation of the alleged violation it was investigating and citation to the corresponding

provision(s) of law. Compl. ¶ 77; Opinion, at *5, *21; 15 U.S.C. § 57b-1(c)(2).

To list just a few of the twenty categories of information ordered to be disclosed

to the agency, the Demand seeks all Media Matters’ documents “produced or received

in discovery in any litigation between Media Matters and X Corp. related to advertiser

boycotts since 2023”; details on Media Matters’ editorial process, such as “the

methodology by which Media Matters evaluates * * * any news [or] sources”; all

documents related to thirteen other entities that track or rate websites for

misinformation, hate speech, or similar categories, where most of these entities “had

previously been the subject of Musk’s public attention[,]” Compl. ¶ 74; all

communications with “any person connected to these entities”; “all communications”

with “any other person” regarding a request to label content as hate speech or

misinformation; “all analyses or studies” that Media Matters has conducted, sponsored,

or commissioned relating to social-media advertising or digital advertising platforms,

and “all data sets and code” necessary to replicate these analyses; and all Media

Matters’ regularly prepared financial statements and budgets. Civil Investigative

Demand at 1–3; see Opinion, at *5; Dimiero Decl. at 6–7 ¶ 18.

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Media Matters filed suit to quash the Demand. As relevant here, Media Matters

alleges that the Commission’s issuance of the Demand violated the First Amendment

because it was taken in retaliation for the content of Media Matters’ past reporting,

including in particular its article reporting that corporate advertisements on X.com had

appeared next to antisemitic and other hateful posts, and that X’s owner, Elon Musk,

had endorsed an antisemitic conspiracy theory. Compl. ¶¶ 95–104; Opinion, at *1, *3.

The district court issued a preliminary injunction enjoining the Demand on the

ground that Media Matters is likely to demonstrate that the Demand was issued in

retaliation for the content of Media Matters’ speech. Opinion, at *1–2.

The Commission appealed and now seeks a stay of the preliminary injunction.

At this early stage, the Commission has not shown a strong likelihood of success given

the unique and (thus far) undisputed facts of this case. Nor do the other stay factors

weigh in favor of the Commission’s request. While we deny a stay, we emphasize that

our decision cannot be divorced from the preliminary posture of this appeal, the

deferential standard of review of the district court’s factfinding, and the presumably

unique fact pattern of this case.

I

The stay of a preliminary injunction pending appeal is an “extraordinary” form of

relief. Citizens for Resp. & Ethics in Washington v. Federal Election Comm’n, 904 F.3d

1014, 1017 (D.C. Cir. 2018) (per curiam). To obtain such relief, an applicant must

(1) make a “strong showing that [it] is likely to succeed on the merits” of the appeal; (2)

demonstrate that it will be “irreparably injured” in the absence of preliminary relief; (3)

show that the issuance of a stay will not “substantially injure the other parties interested

in the proceeding”; and (4) establish that “the public interest” favors a stay. Nken v.

Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987)).

The first two factors—the likelihood of success on the merits and the existence of

irreparable injury absent a stay—“are the most critical.” Nken, 556 U.S. at 434. The

likelihood of success carries great weight in any stay analysis, as federal courts

generally cannot dispense remedies in the absence of a favorable judgment for a party.

See Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926) (“A stay is not a

matter of right, even if irreparable injury might otherwise result to the appellant.”); Curry

v. Baker, 479 U.S. 1301, 1302 (1986) (Powell, J., in chambers) (“It is no doubt true that,

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absent [a stay], the applicant here will suffer irreparable injury. This fact alone is not

sufficient to justify a stay.”); Citizens for Resp. & Ethics in Washington, 904 F.3d at 1019

(“Crossroads’ appeal shows little prospect of success—an arguably fatal flaw for a stay

application.”). In cases involving the First Amendment, the likelihood of success plays a

particularly pronounced role. Cf. Green v. United States Dep’t of Justice, 54 F.4th 738,

745 (D.C. Cir. 2022) (“In First Amendment cases, the likelihood of success will often be

the determinative factor in the preliminary injunction analysis.”) (citation omitted).

II

The Commission argues that it is likely to prevail on the merits of its appeal

because (1) the district court lacked jurisdiction, and (2) the record does not support the

district court’s preliminary determination of a “causal link” between Media Matters’

protected speech and the issuance of the Demand, which is the only element of a First

Amendment retaliation claim disputed by the government at this stage. Stay Motion at

12–20; see Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016).

The Commission has not carried its burden on either point.

A

The Commission has not made a strong showing that it is likely to succeed on

the merits of its jurisdictional argument.

As a general rule, parties seeking to challenge the validity of a civil investigative

demand issued by the Commission must wait for the agency to initiate an enforcement

action in district court. See Federal Trade Comm’n v. Claire Furnace Co., 274 U.S. 160,

174 (1927) (“Until the [Commission] acts, the [demand recipients] cannot suffer, and,

when [it] does act, they can promptly answer and have full opportunity to contest the

legality of any prejudicial proceeding against them.”); see also 15 U.S.C. § 57b-1(e).

But this court has held in an analogous case that when a company challenges a

“sweeping” demand on First Amendment grounds and demonstrates actual and ongoing

harm to its constitutional rights, the case is no longer “simply about a pre-enforcement

challenge to a non-self-executing [demand.]” Paxton, 138 F.4th at 569, 579. Instead, if

a plaintiff submits evidence credited by the district court that it is suffering “present,

concrete, and objective harms [to its] newsgathering activities and media business

operations[,]” and that harm will persist without the Commission also taking enforcement

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action, then the demand’s lawfulness can be challenged and remedied in district court.

Id. at 579. Those differences set this case apart from Claire Furnace, which did not

involve a First Amendment claim or any already-accruing harm. Claire Furnace, 274

U.S. at 168, 174.

In Paxton, Media Matters faced a demand seeking a “slew of records”: “all Media

Matters’ documents and communications dating back to January 1, 2022, regarding X

CEO Linda Yaccarino or Musk’s purchase of X; all Media Matters’ communications with

employees and representatives of X and ten other entities in November 2023;

documents concerning Media Matters’ internal operations, structure, expenditures, and

reporting process; and sources of funding for reporting on X.” 138 F.4th at 569. Media

Matters submitted affidavits showing that, among other things, the pendency of that

broad demand stifled its speech through “self-censorship of reporters on political

extremism topics, disruptions to their normal editorial practices, and reduced

collaboration with other journalists and associations[.]” Id. at 572; see also id. at 581; id.

at 586, 588 (Henderson, J., concurring in the judgment) (Media Matters’ “associations

with other groups” have “been impaired[.]”).

Here, Media Matters has submitted declarations showing that it is suffering those

same types of harms specifically as a result of the pending Commission Demand. See

Decl. of Julie Millican at 4 ¶¶ 13–15, Media Matters, No. 25-cv-1959, Dkt. No. 22-7

(decrease in or “entirely ceased” communications from other previous collaborators;

“noticeable decrease” in number of groups inviting Media Matters to participate in

campaigns); Dimiero Decl. at 8–9 ¶¶ 20–22 (additional “burden[]” on editing process for

any article with “any reference to the [Commission] or commissioners”; refraining from

reporting on how the Commission’s merger requirements for two entities, Omnicom and

IPG, “placed unprecedented limitations on [those entities’] speech”); Decl. of Cynthia

Padera at 5–6 ¶ 22, Media Matters, No. 25-cv-1959, Dkt. No. 22-8 (“retention

challenges” and “reduc[tion in] the amount of research and reporting that [it] is able to

do”); Opinion, at *6, *16 (citing declarations).

The district court credited those declarations and found that Media Matters was

suffering ongoing and concrete harm to its speech activities. Opinion, at *6, *16. The

Commission does not, at this stage, dispute the existence of those particular harms or

their material impact on Media Matters’ ability to engage in speech and reporting, other

than asserting that the harms are self-inflicted. As for the latter, we already rejected a

similar argument on the ground that Media Matters “reasonably altered its behavior to

avoid creating evidence or materials that it would be forced to turn over if the [demand]

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were enforced.” Paxton, 138 F.4th at 581. And the Paxton decision was unanimous

that the harms to Media Matters’ freedom of association were not self-inflicted. See id.

at 588 (Henderson, J., concurring in the judgment) (agreeing that impairment of Media

Matters associations with other groups is, “[o]n its face,” an “ongoing” and “not self-

inflicted” injury).

Given those existing and continuing First Amendment harms, the Commission is

unlikely to succeed in showing that Media Matters must suffer through them unless and

until—if ever—the Commission chooses to file suit to enforce the Demand. To hold

otherwise would empower agencies to issue sweeping demands that inflict concrete and

“ongoing injuries” that suppress speech and journalism—for example, a demand for all

sources used either by certain reporters or for specific stories—while simultaneously

closing the courthouse doors to relief as long as the agency chooses not to take

additional enforcement steps. Paxton, 138 F.4th at 583, 585.

The Commission argues that, under Thunder Basin Coal Co. v. Reich, 510 U.S.

200 (1994), the enforcement provision in 15 U.S.C. § 57b-1(e) deprives the district court

of jurisdiction. That case adopted a claim-channeling doctrine under which district

courts lack jurisdiction if “Congress intended that a litigant proceed exclusively through

a statutory scheme of administrative and judicial review[,]” as determined by whether

“(i) such intent is fairly discernible in the statutory scheme, and (ii) the litigant’s claims

are of the type Congress intended to be reviewed within [the] statutory scheme.” Arch

Coal, Inc. v. Acosta, 888 F.3d 493, 498 (D.C. Cir. 2018) (citation omitted) (second

alteration in original); see Thunder Basin, 510 U.S. at 207, 212.

Whether a legal claim is exclusively channeled to an administrative review

scheme depends on whether (1) precluding district court jurisdiction would foreclose all

meaningful judicial review of the claim, (2) the claim is wholly collateral to the statute’s

review provisions, and (3) the claim is outside the agency’s expertise. Axon Enter., Inc.

v. Federal Trade Comm’n, 598 U.S. 175, 186, 143 S. Ct. 890, 900 (2023) (citing

Thunder Basin, 510 U.S. at 212–213).

Thunder Basin is unlikely to foreclose district court jurisdiction here. Media

Matters does not seek to circumvent an administrative proceeding followed by judicial

review in a court of appeals, which was the issue in Thunder Basin. There is no

dispute, in fact, that Media Matters exhausted what little Commission procedure was

available by engaging with agency officials, who then rejected its requests to withdraw

or significantly modify the Demand to avoid First Amendment harms. See Order

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Denying Pet. to Quash Civil Investigative Demand, In the Matter of Civil Investigative

Demand to Media Matters for America Dated May 20, 2025, FTC Dkt. No. 251-0061

(July 25, 2025).

Even more to the point, unlike in Thunder Basin, there is no dispute that the next

step for review of Media Matters’ constitutional claims is in district court, not a court of

appeals. 15 U.S.C. § 57b-1(e). So the only question is whether Media Matters can

seek relief at this time for the “here-and-now” First Amendment harms found by the

district court, or instead must wait until the Commission initiates an enforcement

proceeding—a step that might never happen. Axon, 598 U.S. at 191–192, 195, 143 S.

Ct. at 903–904, 906. Allowing the party that has issued a demand that is causing

concrete and ongoing First Amendment injury to dictate when, if ever, judicial review

can commence could deprive parties of all meaningful judicial review of constitutional

claims. Axon, 598 U.S. at 190–191, 143 S. Ct. at 903–904. And where the agency was

already afforded an opportunity to consider the constitutional harms caused by its

demand—so that the only question is timing, not forum—there is no agency-expertise

benefit to waiting. Nor is foreclosing timely judicial consideration of such purely

constitutional claims likely contemplated by the statutory review scheme Congress

designed. “What makes the difference here is the nature of the claims and

accompanying harms that the parties are asserting.” Axon, 598 U.S. at 192, 143 S. Ct.

at 904 (finding no foreclosure of pre-enforcement district court review where petitioners

protested an ongoing constitutional injury and where “rights [were] ‘effectively lost’ if

review is deferred”).

For those reasons, the Commission has not shown at this point that it is likely to

succeed in establishing that Media Matters’ claims must await an enforcement

proceeding (if any) under 15 U.S.C. § 57b-1(e).

B

1

The parties agree that, to prevail on a First Amendment retaliation claim, a

plaintiff must show that “(1) [it] engaged in conduct protected under the First

Amendment; (2) the defendant took some retaliatory action sufficient to deter a person

of ordinary firmness in plaintiff’s position from speaking again; and (3) [there is] a causal

link between the exercise of a constitutional right and the adverse action taken against

[it].” Aref, 833 F.3d at 258 (formatting modified).

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The Commission does not dispute that Media Matters engaged in First

Amendment protected speech when it published its November 2023 article about the

inclusion of antisemitic and hateful material on X. Nor does the Commission dispute the

factual validity of the article’s content. The Commission also does not argue that Media

Matters’ editorial and journalistic reporting processes underlying the November article

fall outside the First Amendment’s protective realm. Neither does the Commission

contest the district court’s preliminary factual findings that the Commission’s sweeping

Demand has deterred third parties from talking or associating with Media Matters in a

manner that materially impedes its communicative work and would deter a person of

ordinary firmness from undertaking similarly critical speech again.

As a result, to obtain a stay, the burden is on the Commission to show a

likelihood that no causal link will be found between its Demand and Media Matters’

critical reporting about posted content on X and Elon Musk’s asserted endorsement of

an antisemitic statement.

2

Given our deference to the district court’s preliminary factual determinations and

the unusual factual pattern in this case, the Commission has not shown at this stage

that it is likely to overturn the district court’s tentative factual finding of a “causal link”

between Media Matters’ protected speech and the Commission’s issuance of its

sweeping and unexplained Demand. We understand the district court’s determination

as relying on uncontested facts in the record that, when taken together, offer adequate

support for finding a likelihood of retaliation at this preliminary stage. But we

underscore that the district court’s decision is only a tentative determination governing

the litigation interim, since Media Matters ultimately will have to clear a number of

daunting legal hurdles to prevail.

While the starting presumption is that agency actions are taken in good faith,

Hartman v. Moore, 547 U.S. 250, 263 (2006), the Commission has not shown that the

unique—and seemingly quite unprecedented—constellation of undisputed facts and

circumstances compiled in this still-preliminary record would render erroneous the

district court’s tentative finding that Media Matters’ protected speech likely caused

issuance of the Demand.

First, the Demand issued at a time when a pattern of litigation and information

demands targeted at Media Matters had spanned virtually every day of the two years

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since it reported both that X had placed advertisements for technology companies next

to antisemitic and hateful content and that Elon Musk had endorsed an antisemitic

conspiracy theory. See Eckerman v. Tennessee Dep’t of Safety, 636 F.3d 202,

209–210 (6th Cir. 2010) (finding an inference of retaliatory motive even after a three-

year lapse in time because there was subsequent circumstantial evidence of a sufficient

nature); Paterek v. Village of Armada, 801 F.3d 630, 647 (6th Cir. 2015); see also Bart

v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (finding in a First Amendment public

employment retaliation case that “an entire campaign of harassment which though trivial

in detail may have been substantial in gross” was sufficient to state a claim under

Section 1983).

As noted earlier, Elon Musk promised in response to that reporting to launch “a

thermonuclear lawsuit against Media Matters.” Opinion, at *1, *3; Compl. ¶¶ 38, 46.

The very next day, the now-Deputy Chief of Staff to the President replied to a post on X

about the Media Matters article, stating that “[f]raud is both a civil and criminal violation”

and that “[t]here are 2 dozen+ conservative state Attorneys General.” Opinion, at *3;

Compl. ¶ 40. Within a few hours, at least one state probe commenced in Missouri and,

within two days, the Texas Attorney General announced that he would investigate

Media Matters and issued a civil investigative demand. At the same time, X Corporation

(owned by Elon Musk) sued Media Matters and one of its reporters in federal district

court in Texas. Opinion, at *3; Compl. ¶¶ 41–42, 45.

Courts subsequently ruled that those state civil investigative demands likely

violated the First Amendment. See Paxton, 138 F.4th at 581 (in case involving Texas

demand, court explained that “Media Matters is the target of a government campaign of

retaliation, including an investigation, a press release, and a sweeping [demand]”);

Media Matters for America v. Bailey, No. 24-cv-147, 2024 WL 3924573, at *11–18

(D.D.C. Aug. 23, 2024) (in case involving Missouri demand, court found that “[a]

reasonable factfinder is likely to interpret Defendants’ words as targeting Media Matters

not for legitimate law enforcement purposes but instead for its protected First

Amendment activities”), appeal dismissed sub nom. Media Matters for America v.

Paxton, No. 24-cv-7141, 2025 WL 492257 (D.C. Cir. Feb. 13, 2025); X Corp. v. Media

Matters for America, No. 4:23-cv-1175 (N.D. Tex Nov. 20, 2023); Media Matters for

America v. X Corp., No. 25-cv-2397, 2025 WL 1084715, at *1 (N.D. Cal. Apr. 10, 2025)

(“[I]t seems almost certain that the X entities’ decision to file multiple suits in multiple

jurisdictions is designed more to bully Media Matters and inflict financial hardship upon

it than to actually vindicate those entities’ rights[.]”).

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Most of those lawsuits and demands were enjoined by the time the

Commission’s Demand issued, with one of those injunctions issuing just the previous

month. See Media Matters for America v. Paxton, 732 F. Supp. 3d 1, 8 (D.D.C. 2024),

aff’d, 138 F.4th 563 (D.C. Cir. 2025) (enjoining Texas demand); Bailey, 2024 WL

3924573, at *11–18 (enjoining Missouri demand); X Corp., 2025 WL 1084715, at *1.

Second, the district court did not err in considering the broad scope of the

Demand—including its effort to probe into editorial decisionmaking and journalistic

actions surrounding the publication of the disfavored article—as relevant evidence of

pretext. See Opinion, at *16 (discussing how the Demand seeks Media Matters’

reporting resource materials); Paxton, 138 F.4th at 569, 571 (characterizing a similar

demand on Media Matters as “sweeping” and “wide-ranging”); cf. Hartman, 547 U.S. at

256 (“[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse

consequences, we have held that retaliation is subject to recovery as the but-for cause

of official action offending the Constitution.”); Nieves v. Bartlett, 587 U.S. 391, 400, 139

S. Ct. 1715, 1723 (2019).

In addition, the district court permissibly weighed the fact that the Commission’s

sweeping demand was issued without the statutorily required explanation of the

permissible grounds for its issuance. The Federal Trade Commission Act requires the

agency to “state the nature of the conduct constituting the alleged violation which is

under investigation and the provision of law applicable to such violation” when each civil

investigative demand issues. 15 U.S.C. § 57b-1(c)(2). That did not happen here. See

ANR Storage Co. v. FERC, 904 F.3d 1020, 1024 (D.C. Cir. 2018) (Whether agency

decisions are made in accordance with applicable law under the APA depends “on the

reasons stated in the orders under review[,]” not our own, and not “the agency’s post-

hoc rationalizations[.]”) (citations omitted).1

1

The dissenting opinion is of the view that the demand is probing antitrust

matters. Dissenting Op. at 2–7. The Demand, however, attached only a (i) boilerplate,

generic resolution with (ii) a ten-year timespan (iii) that was issued 16 months before

Media Matters even published its article, and (iv) that authorized the investigation of any

violation of any and all “statutes or rules enforced by the Commission[.]” See Compl.

Ex. D at 20, Media Matters, No. 25-cv-1959, Dkt. No. 1-4. The Commission has made

no argument here—and it seems unlikely that it could—that attachment of the resolution

satisfies 15 U.S.C. § 57b-1(c)(2). See Consumer Fin. Prot. Bureau v. Accrediting

Council for Indep. Colleges & Schools, 854 F.3d 683, 690–692 (D.C. Cir. 2017);

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On top of that, portions of the Demand’s content linked it directly to Media

Matters’ speech about X’s inclusion of antisemitic and hateful advertisements and Elon

Musk’s actions. The Demand seek, among many other things, all documents “produced

or received in discovery in any litigation between Media Matters and X Corp. related to

advertiser boycotts since 2023”; all documents relating to other entities that track or

evaluate websites and platforms for misinformation, hate speech, or deceptive content;

details on Media Matters’ editorial process, such as “the methodology by which Media

Matters evaluates * * * any news [or] sources”; “all analyses or studies” by Media

Matters that are related to social media advertising or digital advertising platforms, along

with the data sets and code for replicating the study; and all regularly prepared financial

statements and budgets. Civil Investigative Demand at 1–3; Opinion, at *5, *16; Compl.

¶ 76.

Third, a key Commission decisionmaker, Chairman Andrew N. Ferguson, spoke

publicly while seeking the position of Commission Chair of his intent to target media

groups and other actors in language that focuses on their viewpoints and the content of

their speech. Opinion, at *19. In a “leaked memo” supporting his candidacy for Chair,

then-Commissioner Ferguson stated that he would “stand[] up to * * * the radical left”

and “[i]nvestigate * * * advertiser boycotts[.]” Opinion, at *4, *19 (emphasis added);

Compl. ¶ 59. Then, just ten days before he was appointed to be the incoming Chair,

Mr. Ferguson stated directly that “it’s really important that the FTC take investigative

steps in the new administration” because “progressives” who are “fighting

disinformation” are “not going to give up just because of the election[.]” Opinion, at *1,

*4, *19–20; Compl. ¶ 61. The Demand issued in the early months of Chairman

Ferguson’s tenure.

Fourth, three individuals who had publicly criticized Media Matters’ reporting by

name were involved with Chairman Ferguson or the Commission at the time the

Demand issued. See, e.g., Opinion, at *5, *20 (Joe Simonson stating “Media Matters

employed a number of stupid and resentful Democrats * * *”; Jon Schweppe stating

Media Matters was “scum of the earth”; Jake Denton accusing “Media Matters” of being

“an organization devoted to pressuring companies into silencing conservative voices”);

Compl. ¶ 70. In the months leading up to the issuance of the Demand, Chairman

Ferguson “brought in” those same three individuals as senior Commission staffers.

Consumer Fin. Prot. Bureau v. Source for Public Data, L.P., 903 F.3d 456, 458–460

(5th Cir. 2018).

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Opinion, at *5, *20; Compl. ¶ 70. Another individual, Mike Davis, became an “outside

adviser” to the current administration, Opinion, at *4, *19; Compl. ¶ 71, and stated two

months before the Demand was issued that he was “working with people like Andrew

Ferguson, the FTC Chair[,]” Compl. ¶ 71. That same adviser previously (1) had said

that Media Matters’ X accounts should be “nuke[d]” because “[t]hey’re a cancer to free

speech”; (2) had solicited money to “build our (growing) list of leftists to throw in the DC

gulag with” the Media Matters journalist who authored the X article and another Media

Matters reporter; and (3) had posted that: “Advertiser boycotts are highly effective

tactics leftists use to cow media executives to destroy free speech—and control the

political narrative. [Media Matters] is the driving force behind conservative media getting

crushed—and conservative voices silenced.” Compl. ¶¶ 64, 71. The month before the

Demand issued, that person allegedly met with Chairman Ferguson on two occasions.

Compl. ¶ 71.

Courts have recognized that such circumstantial evidence, including proximity in

time between the protected speech and government’s adverse actions, the defendant’s

expression of hostility to the protected speech, and the absence of a proffered

legitimate alternative explanation for the action can support a finding that protected

speech caused the agency’s response. See Boquist v. Courtney, 32 F.4th 764, 777

(9th Cir. 2022); see also, e.g., Bailey v. Ramos, 125 F.4th 667, 685 (5th Cir. 2025)

(“Circumstantial evidence is equally as probative as direct evidence in proving

illegitimate intent. Also, direct evidence of an improper motive is usually difficult, if not

impossible, to obtain.”) (formatting modified); Richards v. Perttu, 96 F.4th 911, 919 (6th

Cir. 2024), aff’d, 605 U.S. 460, 145 S. Ct. 1793 (2025); Paterek, 801 F.3d at 647;

Rosaura Bldg. Corp. v. Municipality of Mayaguez, 778 F.3d 55, 67 (1st Cir. 2015);

Kidwell v. Eisenhauer, 679 F.3d 957, 965–966 (7th Cir. 2012); Eckerman, 636 F.3d at

209–210 (finding an inference of retaliatory motive even after a three year lapse in time

because there was subsequent circumstantial evidence of a sufficient nature); Mandell

v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003).

Given the seemingly unusual and unprecedented array of facts in the record at

this stage, the Commission has not shown it is likely to succeed in showing that the

district court erred in finding preliminarily a likelihood of retaliation. Cf. Department of

Commerce v. New York, 588 U.S. 752, 780–785, 139 S. Ct. 2551, 2573–2576 (2019)

(recognizing that “unusual circumstances” and “significant mismatch” between an

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agency’s actions and post hoc explanations in reviewing agency action can, in some

cases, be informative as to motive).2

That is not to say that the preliminary finding on motive will necessarily bear out

at the merits stage. The burden will remain on Media Matters to establish, with the aid

of additional proceedings and record development, that the Commission indeed acted

with retaliatory motive. Hurdles include a presumption of agency regularity that “we do

not lightly discard[.]” Hartman, 547 U.S. at 263. Furthermore, even if there was

retaliatory motive, the Commission may be able to show that it would have issued the

Demand on nonretaliatory grounds anyway—something the Commission does not

argue here. Id. at 256; see Doe v. District of Columbia, 796 F.3d 96, 107 (D.C. Cir.

2015) (“To satisfy the causation link, a plaintiff must allege that his or her constitutional

speech was the ‘but for’ cause of the defendants’ retaliatory action”—a “subjective”

inquiry.); Scahill v. District of Columbia, 909 F.3d 1177, 1185 (D.C. Cir. 2018). For

example, the Commission’s attorneys have argued here that civil investigative demands

were also issued to sixteen other entities to probe antitrust concerns involving advertiser

boycotts, and that the Media Matters Demand was for that same purpose. The

Commission, though, has not said or shown that the scope and sweep of those

2

As the dissenting opinion observes, some of the “laundry list” of statements

supporting the district court’s preliminary conclusion that the Commission acted with

retaliatory motive come from voices other than those of the Commissioners. Dissenting

Op. at 24. That does not make them “irrelevant to this case,” id. at 24–25, precisely

because courts often have to rely on circumstantial evidence when assessing the

subjective motives of government actors. See Steele v. Mattis, 899 F.3d 943, 951–952

(D.C. Cir. 2018) (recognizing in the age-discrimination context that “[t]he actions of a

discriminatory supervisor that feed into and causally influence the decisionmaker’s

ultimate determination may also be the proximate cause of an adverse employment

action”) (citing Staub v. Proctor Hospital, 562 U.S. 411, 419–423 (2011)). The

dissenting opinion adds that Media Matters has not alleged that these individuals were

involved in the issuance of the Demand. Dissenting Op. at 25. But Media Matters has

alleged that Mr. Schweppe, Mr. Simonson, Mr. Denton, and Mr. Davis were hired by or

had discussed antitrust matters with Chairman Ferguson shortly before the Demand

was issued. Compl. ¶¶ 70–71; Opinion, at *19–20. At this preliminary stage, we cannot

say that the district court erred in finding those allegations likely to be relevant. Media

Matters will need to provide specific support of its allegations to prove retaliatory motive

at the merits stage, but that question is not before us now.

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demands matches the one given to Media Matters, or explained any difference in

scope. See Stay Motion at 14.

At this preliminary stage, all that we decide is that the Commission has not

shown that the district court’s findings of fact were clearly erroneous or that, if credited,

they could not legally support a preliminary and tentative judgment of a First

Amendment violation. See Glossip v. Gross, 576 U.S. 863, 881 (2015) (“emphasiz[ing]”

in reviewing a denial of a preliminary injunction that courts “review the District Court’s

factual findings under the deferential ‘clear error’ standard[, which] does not entitle [an

appellate court] to overturn a finding ‘simply because [it is] convinced that [it] would

have decided the case differently.”) (quoting Anderson v. Bessemer City, 470 U.S. 564,

573 (1985)); Gordon v. Holder, 721 F.3d 638, 651 (D.C. Cir. 2013) (“[T]he [legal]

question is a close one, deserving of further development at a trial on the merits, so we

affirm [the grant of preliminary injunction] and remand.”).

III

As for the relevant equitable considerations, Paxton directs our weighing of the

competing interests.

On Media Matters’ side of the scale, “[t]he loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Paxton,

138 F.4th at 585 (quoting Pursuing America’s Greatness v. Federal Election Comm’n,

831 F.3d 500, 511 (D.C. Cir. 2016)); Elrod v. Burns, 427 U.S. 347, 373 (1976) (same).

And Media Matters has documented the concrete harms to its speech activities it is

currently suffering with the Commission’s Demand hanging over its head. See, e.g.,

Millican Decl. at 4 ¶¶ 13, 15 (decrease in or “entirely ceased” communications from

other previous collaborators “shortly after” investigations began; “noticeable decrease”

in number of groups willing to work with Media Matters).

Furthermore, the language of the Demand, on its face, appears to require Media

Matters to disclose information that may implicate the First Amendment reporter’s

privilege. Compare Civil Investigative Demand at 2–3, with Zerilli v. Smith, 656 F.2d

705, 711–712 (D.C. Cir. 1981) (recognizing a qualified reporter’s privilege of protecting

confidential sources that “should be readily available” in civil cases); see Chen v.

Federal Bureau of Investigation, No. 24-5050, --- F.4th ----, 2025 WL 2779312, at *1, *3

(D.C. Cir. Sept. 30, 2025) (applying Zerilli); Securities & Exch. Comm’n v. McGoff, 647

F.2d 185, 191 (D.C. Cir. 1991) (permitting withholding of “documentation relating solely

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to ‘editorial policy’ or news gathering” from SEC subpoena); Chevron Corp. v. Berlinger,

629 F.3d 297, 306 (2d Cir. 2011) (“This circuit has long recognized a qualified

evidentiary privilege for information gathered in a journalistic investigation. [This

privilege] is intended to protect the public’s interest in being informed by ‘a vigorous,

aggressive and independent press[.]’”) (citations omitted); Shoen v. Shoen, 48 F.3d

412, 415–416 (9th Cir. 1995) (recognizing that the compelled “disclosure of research

materials poses a serious threat to the vitality of the newsgathering process”) (citation

omitted); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (“The

compelled production of a reporter’s resource materials can constitute a significant

intrusion into the newsgathering and editorial processes * * * [that] may substantially

undercut the public policy favoring the free flow of information to the public[.]”) (citation

omitted).

As for the Commission, it certainly has an interest in enforcing consumer

protection laws. But nothing in the Demand the Commission issued said what, if any,

law Media Matters was being investigated for possibly violating, or what conduct of

Media Matters is under investigation.

To be sure, the dissenting opinion offers its own theory about the Commission’s

purpose in issuing the Demand. Dissenting Op. at 2–7. But Congress required the

Commission to explain itself when it issued the Demand.

We note that, after Media Matters filed its lawsuit and seven weeks after the

Demand was issued, the Commission retroactively amended its Demand to include

some explanation of the basis for its issuance, presumably in a belated effort to comply

with 15 U.S.C. § 57b-1(c)(2). See Mot. for Prelim. Inj. Ex. B at 2, Media Matters,

No. 25-cv-1959, Dkt. No. 22-4. Even assuming that revision brings the Demand in

compliance with the statute—something the government does not argue here—that

post-litigation addition does not demonstrate how enjoining the Demand pending further

litigation will impair the Commission’s work. The Commission, after all, has not sought

to enforce the Demand or said that it has any short- or medium-term plans to do so.

In addition, nothing in this decision or the district court’s injunction impairs the

Commission’s ability to proceed on any other demands it has issued. The Commission

offers just one sentence in its motion papers asserting that it would suffer the

“administrative difficulty of separating out and halting a single component of a broad

multi-party investigation”—a difficulty that it asserts “would only grow more severe if

other [demand] recipients followed Media Matters’ example.” Stay Motion at 21. But

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the Commission’s sentence is not supported by any declaration or otherwise elaborated

on with any explanatory information. It does not, for example, explain what difficulties it

would encounter, how the investigations are so closely interconnected that the Media

Matters Demand would be inseparable from the others, or how this short delay would

impair its work given that it has not expressed to this court any current interest in

enforcing the Media Matters Demand. Nor has it explained how any of its demands to

other entities involve anything like the type of unique factual circumstances surrounding

the Media Matters Demand and so could plausibly allow those entities to seek similar

relief. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.

Cir. 2006) (Injury “must be both certain and great”; “actual and not theoretical”; and “of

such imminence that there is a ‘clear and present’ need for equitable relief.”) (citation

omitted); Committee in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742,

745–46 (D.C. Cir. 1991) (“Injunctions * * * will not issue to prevent injuries neither extant

nor presently threatened, but only merely feared.”) (formatting modified) (citation

omitted).

All this lack of clarity by the Commission gives us no sufficient basis for finding

that the district court abused its discretion in finding no irreparable injury or in weighing

the competing interests in this case. Especially because whatever the Commission’s

prospective plans regarding this demand, it “may not ‘act unlawfully even in pursuit of

desirable ends.’” Paxton, 138 F.4th at 585 (quoting Huisha-Huisha v. Mayorkas, 27

F.4th 718, 734 (D.C. Cir. 2022)); see also Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir.

2020) (“The Constitution, however, does not permit [the government] to prioritize any

policy goal over the Due Process Clause, and enforcement of an unconstitutional law is

always contrary to the public interest.”) (formatting modified).

*****

For the foregoing reasons, the Commission’s motion for a stay pending appeal is

denied. If the Commission wishes to have the appeal expedited—something it has not

mentioned—the parties should consult and propose a schedule to the court.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

Page 17

WALKER, Circuit Judge, dissenting:

In the weeks leading up to President Trump’s

inauguration, before Andrew Ferguson became Chairman of

the Federal Trade Commission, Ferguson identified what he

saw as a recent problem, the potential for a future problem, and

a solution:

• The recent problem — censorship of social-media

users by officials in the administration of President Joe

Biden.

• The potential future problem — those officials’

imminent entry into the private sector, where they

might pursue old goals through new means, including

collusive boycotts by advertisers of disfavored social-

media platforms.

• The solution — enforcement actions against them if

they illegally coordinate advertiser boycotts in

violation of antitrust laws.

Then, after Ferguson became Chairman, the Federal Trade

Commission launched an investigation into anticompetitive

collusion by advertisers that boycott media outlets. In that

investigation, the FTC issued “seventeen still-pending” civil

investigative demands.1 One of the seventeen demands went

to Media Matters, an advocacy organization that helps

“activists” to “take direct action against offending media

institutions.”2

1

Order Denying Petition to Quash Civil Investigative Demand, In re

Civil Investigative Demand to Media Matters for America Dated

May 20, 2025, FTC File No. 251-0061, at 2 (July 25, 2025).

2

About Us, Media Matters for America, https://perma.cc/3MBD-

Y5C4.

2

Media Matters alleges that the FTC’s investigation is in

retaliation for a 2023 Media Matters article critical of X,

formerly known as Twitter. Never mind that the article didn’t

mention the FTC or anyone who runs it. Never mind that the

article was published a year and a half before the investigation.

And never mind that the record does not include a single

statement about Media Matters by any decisionmaker at the

FTC before the FTC’s investigation.

Media Matters sued to enjoin the FTC. The district court

issued a preliminary injunction.3 Because the FTC is (very)

likely to prevail on the merits and because the other stay factors

favor the FTC, I would stay the injunction pending appeal.

* * *

“During the 2020 election season and the COVID–19

pandemic, social-media platforms frequently removed,

demoted, or fact checked posts containing allegedly false or

misleading information. At the same time, federal officials,

concerned about the spread of ‘misinformation’ on social

media, communicated extensively with the platforms about

their content-moderation efforts.”4 That “misinformation”

included “posts supporting the theory that the virus leaked from

a laboratory,” a theory that the FBI and Department of Energy

now consider “probably correct.”5

3

Media Matters for America v. FTC, Civ. A. No. 25-1959, 2025 WL

2378009, at *2 (D.D.C. Aug. 15, 2025) (hereinafter District Court

Opinion).

4

Murthy v. Missouri, 144 S. Ct. 1972, 1981 (2024).

5

Id. at 1998, 1998 n.2 (Alito, J., dissenting) (joined by Thomas and

Gorsuch, JJ.).

3

“Some of these [government] communications [to social-

media platforms] were more aggressive than others.”6 At

times, high-ranking officials in the Executive Branch “harried

and implicitly threatened Facebook with potentially crippling

consequences if it did not comply with their wishes about the

suppression of certain COVID–19-related speech.”7

When President Biden’s officials were sued for violating

social-media users’ free-speech rights, all seven federal judges

and justices who reached the suit’s merits agreed that the Biden

administration had brazenly violated the First Amendment.

The district court found “a far-reaching and widespread

censorship campaign.”8 Then a unanimous circuit panel held

that the White House likely “coerced the platforms” and

“commandeer[ed] their decision-making processes, both in

violation of the First Amendment.”9 And finally, though six

justices concluded that the plaintiffs lacked standing, the only

three justices to reach the merits called the White House’s

conduct “dangerous” and “blatantly unconstitutional.”10

6

Id. at 1983 (majority op.).

7

Id. at 1998 (Alito, J., dissenting) (joined by Thomas and Gorsuch,

JJ.). For example, White House officials told Facebook that the

administration was “‘considering our options on what to do about

it,’” id. at 2012 (quoting Andy Slavitt), later “paired a request for

platforms to ‘stop amplifying untrustworthy content’ with a reminder

that President Biden ‘supports . . . a robust anti-trust program,’” id.

(quoting Jen Psaki), and still later “asserted that the platforms

‘should be held accountable’ for publishing misinformation,” id.

(quoting Kate Bedingfield).

8

Missouri v. Biden, 680 F. Supp. 3d 630, 729 (W.D. La. 2023).

9

State v. Biden, 80 F.4th 641, 672 (5th Cir. 2023).

10

Murthy v. Missouri, 144 S. Ct. at 1999 (Alito, J., dissenting)

(joined by Thomas and Gorsuch, JJ.).

4

In the time between President Trump’s election and

inauguration, Federal Trade Commissioner Andrew Ferguson

sat for an interview on a podcast to discuss the Biden

Administration’s record of censoring “disinformation.”11 He

said, “The word we always hear is disinformation. That’s the

classic way that this is said. That’s just Orwellian newspeak

for ideas that Silicon Valley and progressives don’t like.”12

Not once in the interview did Ferguson say that

“progressives” should be punished for what they believe.13

Rather, he chided “progressives” in the Biden Administration

for punishing others for what others believe.14 And he

proposed two government actions to combat censorship.

First, “the government can forbid its own officials from

doing that. You know, President Trump and his new Cabinet

that he’s been rolling out over the last several days, they can

just order their subordinates, stop doing this. Get off the phone

with these platforms, stop suppressing the free speech of

Americans, quit doing this.”15

Second, the FTC can “make sure that that sort of

cooperation and collusion doesn’t move into the private sector.

No advertiser cartels, no cooperation among the platforms to

11

Transcript of Andrew Ferguson on The War Room:11-30-24 at 2,

Media Matters for America v. FTC, Civ. Case No. 25-1959, Docket

No. 32-1 (D.D.C. Aug. 15, 2025).

12

Id. at 2; see also id. at 3 (“you had the government cooperating,

coordinating, whatever you want to call it, with the platforms to take

down misinformation and disinformation, all the stuff that Silicon

Valley and the progressives don’t like”).

13

See id. at 2-5.

14

See id. at 2-3.

15

Id. at 3.

5

say, hey, let’s all just agree we’re not going to allow this type

of speech. And I think that that’s where the FTC and the FCC,

the way that future Chairman Carr has talked about it, can do

really, really important work.”16

In other words, Ferguson first proposed that government

officials stop violating the First Amendment. And then he

proposed that the FTC stop private parties from violating

antitrust laws. He worried about the threat of antitrust

violations because he expected the allegedly illegal conduct he

identified (censorship by progressives in the Biden

Administration) to shift from a method previously available to

progressives within government to a method available to

progressives outside of government. As he put it,

“progressives, Silicon Valley, everyone who is fighting

disinformation, they’re not gonna give up just because of the

election.”17

Of course, as Ferguson noted, “private companies can sort

of decide what they’d like to do with their own resources.”18 If

a tech company wants to platform only progressive speech, it

can do so. And if an advertiser wants to advertise on only

progressive platforms, it can do so too. But “one of the most

important things the antitrust laws forbid is people getting in a

room and agreeing, we’re not going to compete. And, you

know, if there are a bunch of powerful advertisers getting in a

room together and saying, hey, let’s all agree not to advertise

on this platform because we don’t like that they have free

speech on that platform, or let’s agree not to advertise about

this podcast or this online show, that can potentially violate the

antitrust laws because the antitrust laws are designed to make

16

Id.

17

Id.

18

Id. at 2.

6

sure that all of us get to participate in markets freely and fairly

and that there isn’t a bunch of backdoor dealing among

competitors to suppress people or ideas.”19

Around the same time, Ferguson wrote in a memo that he

would “[i]nvestigate and prosecute collusion on . . . advertiser

boycotts” if President Trump appointed him Chairman of the

FTC.20 And he said he could be counted on to do so because

he had “a track record of standing up to” the “anti-business,

anti-innovation agenda of the radical left.”21 In other words,

Ferguson did what he had done in the podcast interview — he

identified allegedly illegal conduct (collusive “advertiser

boycotts”), proposed a solution (FTC investigations and

prosecutions of “collusion on . . . advertiser boycotts”), and

bolstered (with his “track record of standing up to” the people

who had engaged in the illegal conduct) the credibility of his

promise to apply that solution to the problem.

Finally, after President Trump appointed him, Ferguson

did what he had promised to do — he investigated whether

19

Id.; see also id. (“And so, you know, at the FTC, that’s one of the

concerns that I really hope that the new Trump FTC is going to look

into and that I’ve been calling for it to look into, which is if we’ve

got agreements among the platforms to suppress ideas or speech, we

have to investigate those for potential antitrust violations. And if we

have advertiser cartels where advertisers are agreeing we’re not

going to advertise on this show, on this platform, those also

potentially violate the antitrust laws. Group boycotts are illegal

under the antitrust laws and I think they cry out for antitrust scrutiny.

And then I think we have a second censorship problem and it’s super

important that President Trump won this election, because it’s the

kind of thing that he and his new government can address directly.”).

20

FTC Commissioner Andrew N. Ferguson for FTC Chairman, at 1

Punchbowl News, https://perma.cc/A56K-Q4YM.

21

Id.

7

collusive advertiser boycotts existed and if so, whether they

violated antitrust laws. Under his leadership, the FTC issued

seventeen currently outstanding civil investigative demands to

advertising trade associations, brand safety/suitability rating

organizations, and policy/advocacy groups.22 The

investigation focused on “whether entities have conspired to

withhold, degrade, increase the cost of, or otherwise diminish

the quantity of advertising placed on news outlets, media

platforms, or other publishers in violation of Section 1 of the

Sherman Act and Section 5 of the FTC Act, under the guise of

promoting ‘brand suitability’ and ‘brand safety’ against

‘misinformation.’”23 One of those advocacy groups is Media

Matters, which helps “activists” to “take direct action against

offending media institutions.”24

Ferguson’s sequence of conduct — saying what he would

do in office, and then doing it — is what we expect of public

servants tasked with enforcing the law, especially in a republic

where elections and appointments by elected Presidents matter.

It is also what Attorney General Robert Kennedy did when he

kept his promise to investigate organized crime.25 It’s what

Consumer Financial Protection Bureau Director Richard

Cordray did when he kept his promise to investigate subprime

22

Order Denying Petition to Quash Civil Investigative Demand,

supra note 1, at 2.

23

Id.

24

About Us, Media Matters for America, https://perma.cc/3MBD-

Y5C4.

25

“If we do not on a national scale attack organized criminals with

weapons and techniques as effective as their own, they will destroy

us.” Robert F. Kennedy, The Enemy Within, 265 (1960).

8

lenders.26 And it’s what FTC Chairwoman Lina Khan did

when she kept her promise to investigate Big Tech

companies.27

Khan’s example is especially illustrative, both because she

was Ferguson’s immediate predecessor and because her pre-

appointment promises were so clear. Before suing Big Tech

companies with great fanfare and with (to put it generously)

mixed results, Khan said the FTC should investigate them.28

26

Ben Protess, Wall Street’s Newest Regulator a Longtime Foe, The

New York Times (July 18, 2011), https://perma.cc/S5PG-G9HR

(“There’s a belief here that Wall Street is a fixed casino and it’s back

in business, and we’re left holding the bag. . . . It’s important for us

to show we’ll go after a company that does wrong.”) (quoting

Richard Cordray).

27

After being asked what the biggest challenge is to adequate

enforcement against Big Tech, Lina Khan responded that one of the

main impediments has been the “deep information asymmetries”

between Big Tech and antitrust enforcers. Nomination to the

National Aeronautics and Space Administration, Federal Trade

Commission and U.S. Department of Commerce Before the Senate

Committee on Commerce, Science, and Transportation, 117 Cong.

56 (2021) (statement of Lina Khan, nominee for Commissioner of

the FTC). She later followed up on her earlier comments on Big

Tech stating that “we really need the Federal Trade Commission to

be using its information collection capacities to really try and

mitigate some of these information gaps” with social media

companies. Id. at 60.

28

Adam J. White, The Power Broke Her, Commentary Magazine

(March 2024), https://perma.cc/Q5H9-4HXZ (noting that while at

Yale Law School, she joined her former boss “for a key meeting with

Senator Elizabeth Warren on the need to pursue antitrust action

against Big Tech Companies”).

News Release, Antitrust Scholar Lina Khan Joins Faculty,

Columbia Law School (December 2, 2020), https://perma.cc/2P8Q-

9

She even voiced the very same concerns that Ferguson has

expressed about the effect of anticompetitive behavior on

journalism.29 But unlike Ferguson — who never mentioned

Media Matters in his podcast interview or his memo — Khan

identified the future targets of her investigations by name, over

and over and over again:

Facebook

1. “We . . . request that the Federal Trade Commission

conduct a thorough review of Facebook’s dominance in

social networking and online advertising; assess the

hazards that this dominance poses to commerce and

competition, basic democratic institutions, and national

security[.]”30

LDPQ (“If Khan has her way, Amazon, Apple, Facebook, and

Google will not remain omnipotent behemoths.”); Sway: Lina Khan

is Bursting Big Tech’s Bubble, The New York Times (October 29,

2020), https://tinyurl.com/4eb98c6c (Khan is “an existential threat to

companies like Amazon, Facebook, Google and Apple.”).

29

Like Andrew Ferguson, Lina Khan has expressed concerns about

algorithmic discrimination against certain publishers and increased

market consolidation in the digital ad market: “Increasingly, news

publishers are dependent on a few gatekeepers to disseminate their

news . . . . [A] single change in an algorithm can plummet

readership . . . . [T]here are also some serious concerns within the

digital ad market as well as vertical integration that has potentially

created some conflicts of interest.” Khan, Nomination to the Federal

Trade Commission, supra note 27, at 49.

30

Open Markets Institute Calls on the FTC to Block All Facebook

Acquisitions, Open Markets Institute, (Nov. 1, 2017)

https://perma.cc/U6KP-WFLV (emphasis added) (quoting letter

signed by Lina Khan, Director of Legal Policy); cf. Redacted

Amended Complaint, FTC v. Facebook Inc., Case No. 1:20-cv-

10

2. “[W]e ask that your agency [the FTC] adopt a presumptive

ban on all acquisitions by Facebook.”31

3. “Facebook appears to be using the dominance that comes

from its control over this vital social network to crush or

acquire nascent rivals in ways that reduce choice,

undermine innovation, and harm the ability of individual

American citizens to share information and engage in

open . . . commerce with one another.”32

4. “Facebook also delivers certain apps and features directly,

placing it in competition with developers. It has both

foreclosed competitors from its platform and appropriated

their business information and functionality.”33

5. “Facebook . . . has leveraged its dominant position as a

communications network to extract sensitive business

information from publishers. Collecting this information

03590, Doc. No. 75-1 (D.D.C. Aug. 19, 2021),

https://perma.cc/FH78-EYRE (antitrust enforcement action against

Facebook).

31

Open Markets Institute Calls on the FTC to Block All Facebook

Acquisitions, supra note 30, (emphasis added) (quoting letter signed

by Lina Khan, Director of Legal Policy); cf. Redacted Amended

Complaint, supra note 30 (antitrust enforcement action against

Facebook).

32

Open Markets Institute Calls on the FTC to Block All Facebook

Acquisitions, supra note 30, (emphasis added) (quoting letter signed

by Lina Khan, Director of Legal Policy); cf. Redacted Amended

Complaint, supra note 30 (antitrust enforcement action against

Facebook).

33

Lina M. Khan, The Separation of Platforms and Commerce, 119

Colum. L. Rev. 973, 1001 (2019) (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

11

from publishers has enabled Facebook to significantly

enhance the value of its advertising business at publishers’

expense.”34

6. “Using information captured by Onavo, Facebook has

copied the functionality of several apps — including . . .

Snapchat — and bought out WhatsApp . . . . Apps whose

functionality Facebook has copied — like

Snapchat — went on to see declines in user growth.”35

7. “The loss of privacy and control experienced by Facebook

users therefore does not stem, organically, ‘from the

structure and nature of the fiduciary relation.’ It stems from

Facebook’s deliberate efforts to create such

vulnerabilities.”36

8. “To the extent that users feel beholden to Facebook, it is

not because the company offers them especially skillful

services or judgments so much as because of a lack of

34

Khan, The Separation of Platforms and Commerce, supra note 33,

at 1003 (emphasis added); cf. Redacted Amended Complaint, supra

note 30 (antitrust enforcement action against Facebook).

35

Khan, The Separation of Platforms and Commerce, supra note 33,

at 1002-03 (emphasis added); cf. Redacted Amended Complaint,

supra note 30 (antitrust enforcement action against Facebook).

36

Lina M. Khan & David E. Pozen, A Skeptical View of Information

Fiduciaries, 133 Harv. L. Rev. 497, 517-18 (2019) (emphasis added)

(internal citations omitted); cf. Statement of Chair Lina M. Khan

Regarding the Social Media and Video Streaming Service Providers

Privacy Report Commission File No. P205402, Federal Trade

Commission, at 3 (Sept. 19, 2024), https://perma.cc/5F4U-9969 (“In

the context of platforms that mediate speech and expressive content,

market dominance can pose a unique danger — allowing a small

number of executives to determine whose views are amplified or

silenced.”).

12

viable alternatives. By virtue of owning four of the top five

social media applications, Facebook makes it difficult to

escape the company’s ecosystem.”37

9. “To appreciate just how odd it is to think that a behavioral-

advertising company could be a fiduciary for its users,

imagine visiting a doctor — let’s call her Marta

Zuckerberg — whose main source of income is enabling

third parties to market you goods and services. . . . [T]o be

sure she does not miss anything, she has planted

surveillance devices all around your neighborhood as well

as her office.”38

10. Government officials need “to make sure Facebook is not

acquiring further power. So if Facebook tomorrow

announces that it’s acquiring another company, I would

hope that the FTC would look at that very closely and block

it.”39

37

Khan & Pozen, supra note 36, at 518 (emphasis added) (internal

citations omitted); cf. Redacted Amended Complaint, supra note 30

(antitrust enforcement action against Facebook).

38

Khan & Pozen, supra note 36, at 514 (2019) (emphasis added)

(internal citations omitted); cf. Statement of Chair Lina M. Khan

Regarding the Social Media and Video Streaming Service Providers

Privacy Report Commission File No. P205402, supra note 36, at 3

(“Unchecked private surveillance by these platforms creates

heightened risk of improper surveillance by the state.”); Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

39

Khan, THE BERNIE SANDERS SHOW: THE GREATEST THREAT TO

OUR DEMOCRACY?, Are Facebook, Amazon & Google Threats to

American Democracy?, at 20:31 (May 15, 2018),

https://perma.cc/6YMW-ZQ3L (emphasis added); cf. Redacted

13

11. “[O]ften times it’s only Facebook that has knowledge

about how potentially successful this other company could

be and it’s able to kind of swoop in there . . . [and] make an

acquisition offer before any other . . . acquisitions might be

on the table . . . this is definitely something that antitrust

[enforcers] should be paying attention to.”40

12. “In hindsight, I think, looking back, looking at the

documents, looking at the evidence that was available, now

the agency was able to determine, [Facebook’s acquisition

of Instagram] was an illegal transaction.”41

13. “[Facebook] know[s] how you’re feeling, . . . what you’re

thinking. A few years ago, it was revealed that Facebook

had basically conducted a psychological experiment on

users so I think we’re at an unprecedented moment where

these companies have a level of insight and information

about individuals in a way that we’ve never experienced in

history.”42

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

40

Lina Khan, The Capitol Forum Interview Series: Lina Khan, at

7:16 (May 9, 2018), https://tinyurl.com/yc2ambvd (emphasis

added); cf. Redacted Amended Complaint, supra note 30 (antitrust

enforcement action against Facebook).

41

Lina Khan, Sway: Lina Khan is (Still) Bursting Big Tech’s Bubble,

The New York Times (October 29, 2020) (transcript); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

42

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39 at 2:58 (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

14

14. “Facebook’s business model is privileging sensational

content [and] privileging misinformation and that’s at odds

with kind of the social purpose that it’s now playing in

society.”43

15. “[Facebook] actually studied the techniques used by the

gambling industry to figure out how to addict people to

their apps.”44

16. Facebook “is undermining democracy because Facebook

controls access . . . .”45

17. Facebook “controls how you communicate to people . . . to

show information it likes and not show information it

doesn’t like . . . . [T]his has huge implications for the

43

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 5:19 (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

44

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 6:42 (emphasis added); cf. Statement

of Chair Lina M. Khan Regarding the Social Media and Video

Streaming Service Providers Privacy Report Commission File No.

P205402, supra note 36, at 2 (“This newfound ability to monetize

people’s behavior, activity, and characteristics helped drive the

creation of a multi-billion dollar industry specializing in tracking and

collecting . . . personal data.”); Redacted Amended Complaint,

supra note 30 (antitrust enforcement action against Facebook).

45

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 10:01 (emphasis added); cf. Statement

of Chair Lina M. Khan Regarding the Social Media and Video

Streaming Service Providers Privacy Report Commission File No.

P205402, supra note 36, at 3 (“When a single firm controls a market

and is unchecked by competition, its policies can effectively function

as private regulation.”); Redacted Amended Complaint, supra note

30 (antitrust enforcement action against Facebook).

15

journalism industry for what news gets shown and what

doesn’t get shown. Companies that get to control access to

the news ultimately control what that news is.”46

18. “Facebook enjoys the power that it does today in part

because it was allowed to buy up Instagram, it was allowed

to buy up WhatsApp and that meant that it was able to lock

in more and more users on its platform.”47

19. “So I think you know that the fact that Facebook is a

monopoly and has a lot of power comes back . . . to the fact

that we don’t really enforce our antitrust laws in a good way

anymore.”48

46

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 10:09 (emphasis added); cf. Statement

of Chair Lina M. Khan Regarding the Social Media and Video

Streaming Service Providers Privacy Report Commission File No.

P205402, supra note 36, at 3 (“In the context of platforms that

mediate speech and expressive content, market dominance can pose

a unique danger — allowing a small number of executives to

determine whose views are amplified or silenced.”); Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

47

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 15:59 (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

48

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 16:20 (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

16

20. “[P]eople are very worried about [Facebook’s dominance]

but they don’t feel like they have [any other] options.”49

Amazon

21. “[W]e should examine how Amazon could use its

dominance to recoup its losses in ways that are more

sophisticated than what courts generally consider or are

able to assess.”50

22. “The dominant framework in antitrust today fails to

recognize the risk that Amazon’s dominance poses for

discrimination and barriers to new entry.”51

23. “Given that Amazon increasingly serves as essential

infrastructure across the internet economy, applying

elements of public utility regulations to its business [are]

worth considering.”52

49

Khan, Are Facebook, Amazon & Google Threats to American

Democracy?, supra note 39, at 23:03 (emphasis added); cf. Redacted

Amended Complaint, supra note 30 (antitrust enforcement action

against Facebook).

50

Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710,

762 (2017) (emphasis added); cf. Redacted Complaint, FTC v.

Amazon.com, Inc., Case No. 2:23-cv-01495, Doc. No. 114 (W.D.

Wash. Nov. 2, 2023), https://perma.cc/MK8L-DH7V (antitrust

enforcement action against Amazon).

51

Khan, Amazon’s Antitrust Paradox, supra note 50, at 780

(emphasis added); cf. Redacted Complaint, supra note 50 (antitrust

enforcement action against Amazon).

52

Khan, Amazon’s Antitrust Paradox, supra note 50, at 798

(emphasis added); cf. Redacted Complaint, supra note 50 (antitrust

enforcement action against Amazon).

17

24. “Amazon is a dominant online platform. Over 50% of

online shopping searches now begin on its website.”53

25. “It also has a massive logistics network where if you’re an

independent retailer and you want [products] to be

delivered in two days, you’re going to be compelled to use

Amazon services.”54

26. “People are . . . economically dependent on Amazon and I

think Amazon can take advantage of that bargaining

power.”55

27. “You have these merchants that are undertaking the initial

risk of bringing a product to market but Amazon is able to

swoop in when it sees something is doing well and kind of

reap the reward.”56

28. “It’s also interesting because . . . it also shows this kind of

distance between what Wall Street recognizes and what

Washington recognizes. . . . Wall Street’s pricing

Amazon’s stock at multiples that I would say reflect the

market power that Amazon has and yet in Washington I

think there is still a reluctance to even acknowledge that it

53

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 2:34 (emphasis added); cf. Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon).

54

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 2:43 (emphasis added); cf. Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon).

55

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 3:40 (emphasis added); cf. Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon).

56

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 5:44 (emphasis added); cf. Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon).

18

has dominance in any line of business. . . . The investors

get it in ways that . . . enforcers are not really getting it

yet.”57

29. “I think [the antitrust remedy] would basically . . . prohibit

Amazon from selling its own Amazon-labeled goods on

its platform. . . . There were a host of other reasons that

we’re focused on [this remedy]. You know, wanting to

promote diversity in the press.”58

30. “I think there is good reason to think that this is actually

causing economic harm. A lot of the small businesses that

are dependent on Amazon are terrified.”59

31. On Amazon: “There are certain forms of conflicts of

interest that should just not exist, the main one being that if

you are a platform, you should not be able to compete with

the businesses that are relying on you.”60

57

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 14:51 (emphasis added); cf. Redacted Complaint, supra note

50 (antitrust enforcement action against Amazon).

58

Lina Khan, Aspen Ideas Festival: When is ‘Big’ Just Too Big?, The

Aspen Institute, at 9:34 (June 29, 2019), https://tinyurl.com/4np92b2

(emphasis added); cf. Redacted Complaint, supra note 50 (antitrust

enforcement action against Amazon).

59

Lina Khan, Next Generation Leaders: Lina Khan on Challenging

Monopoly Companies Such as Amazon, Time Magazine, at 0:49

(Oct. 17, 2019), https://tinyurl.com/5n7we2pu (emphasis added); cf.

Redacted Complaint, supra note 50 (antitrust enforcement action

against Amazon).

60

Lina Khan, New America: Amazon and the Law, at 33:45 (Feb. 4,

2016), https://tinyurl.com/sjt4svt2; cf. Redacted Complaint, supra

note 50 (antitrust enforcement action against Amazon).

19

32. “[Amazon] has established its level of dominance because

of the failings of our current antitrust laws.”61

33. “And like the railroads of yore, Amazon dictates terms and

prices to those dependent on its rails.”62

Uber

34. “The idea that investors are willing to fund predatory

growth in winner-take-all markets also holds in the case of

Uber.”63

35. “While Uber claims that its algorithms set prices to reflect

real-time supply and demand, initial research has found that

the company manipulates the availability of both.”64

“Big Tech”

36. Amazon, Alphabet, Facebook, and Apple all are

“dominant digital platforms” that “use their integrated

61

Lina Khan, Amazon Bites Off Even More Monopoly Power, The

New York Times (June 21, 2017), https://tinyurl.com/27mbbjcy

(emphasis added); cf. Redacted Complaint, supra note 50 (antitrust

enforcement action against Amazon).

62

Khan, Amazon Bites Off Even More Monopoly Power, supra note

61 (emphasis added); cf. Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon).

63

Khan, Amazon’s Antitrust Paradox, supra note 50, at 786

(emphasis added); cf. João da Silva, Uber Probed by US Regulator

Over Subscription Plan, BBC (Nov. 28, 2024),

https://perma.cc/47L2-9N8H (announcing FTC investigation into

Uber’s subscription service).

64

Khan, Amazon’s Antitrust Paradox, supra note 50, at 789

(emphasis added); cf. Silva, supra note 63 (announcing FTC

investigation into Uber’s subscription service).

20

structure to engage in both discrimination and information

appropriation.”65

37. “This is a moment in time that invites a movement . . . . It’s

bigger than antitrust, bigger than Big Tech. It’s about

whether the laws serve democratic ends.”66

38. “Big tech platforms — Amazon, Facebook,

Google — control a large and growing share of our

commerce and communications, and the scope and degree

of their dominance poses real hazards.”67

65

Khan, The Separation of Platforms and Commerce, supra note 33,

at 983; cf. Redacted Complaint, supra note 50 (antitrust enforcement

action against Amazon); FTC Amicus Curiae Brief at 8-12, In re

Google Play Store Antitrust Litigation, Case No. 3:21-md-02981,

Doc. No. 686-1 (N.D. Cal. Aug. 12, 2024), https://perma.cc/7X4H-

PE3R (mirroring similar arguments to Lina Khan’s academic work,

including advocating for antitrust remedies to combat Google’s

“network effects” and “data feedback loops”); Redacted Amended

Complaint, supra note 30 (antitrust enforcement action against

Facebook).

66

David Streitfeld, Amazon’s Antitrust Antagonist Has a

Breakthrough Idea, The New York Times (Sept. 7, 2018),

https://tinyurl.com/muvr3he2 (emphasis added) (quoting Lina

Khan); cf., Amended Complaint, FTC v. Meta Platforms, Inc., Case

No. 5:22-cv-04325, Doc. No. 101-1 (N.D. Cal. filed Oct. 7, 2022),

https://perma.cc/8U6H-H6PL; Redacted Complaint, supra note 50

(antitrust enforcement action against Amazon); FTC Amicus Curiae

Brief at 8-12, supra note 65 (advocating for antitrust remedies to

combat Google’s “network effects” and “data feedback loops”).

67

Lina Khan, The Supreme Court Case That Could Give Tech Giants

More Power, The New York Times (Mar. 2, 2018),

https://tinyurl.com/2avfbc2d (emphasis added); cf. Redacted

Complaint, supra note 50 (antitrust enforcement action against

21

39. “These dominant platforms — Google, Amazon — are

now effectively serving as infrastructure for other

businesses and that creates a relationship of dependence.

But in addition to serving as infrastructure for other

businesses, Amazon and Google are integrated in all these

other lines and that puts them in direct competition with the

companies reliant on their infrastructure. And I think that

creates a core conflict of interest is raising a bunch of anti-

competitive concerns.”68

40. “I think another key issue is monopoly leveraging. So the

way that Google, Amazon are able to use their dominance

to expand into other lines of business and give themselves

an advantage.”69

41. “The last issue I’d point to is that we see huge information

asymmetries. So, the fact that these platforms are hosting

all of this economic activity by other companies means that

they collect a lot of information that they’re then able to use

often times against those businesses in their vertical

Amazon); FTC Amicus Curiae Brief at 8-12, supra note 65

(advocating for antitrust remedies to combat Google’s “network

effects” and “data feedback loops”); Redacted Amended Complaint,

supra note 30 (antitrust enforcement action against Facebook).

68

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 0:34 (emphasis added); cf. FTC Amicus Curiae Brief at 8-12,

supra note 65 (advocating for antitrust remedies to combat Google’s

“network effects” and “data feedback loops”); Redacted Complaint,

supra note 50 (antitrust enforcement action against Amazon).

69

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 1:01 (emphasis added); cf. FTC Amicus Curiae Brief at 8-12,

supra note 65 (advocating for antitrust remedies to combat Google’s

“network effects” and “data feedback loops”); Redacted Complaint,

supra note 50 (antitrust enforcement action against Amazon).

22

integration. So, we see this with Facebook, with Amazon,

with Google.” 70

42. “Famously, Facebook purchased Onavo, which is a VPN

server that gave Facebook . . . detailed insight into which

rival applications were diverting . . . attention from

Facebook and was then able to go out and buy competing

products. . . . You see a similar dynamic with Google and

Amazon.”71

* * *

The facts as they currently appear do not come close to

showing that the FTC issued a 2025 civil investigative demand

to Media Matters in retaliation for Media Matters’ 2023

article — an article that mentioned neither the FTC nor

Chairman Ferguson, written by an organization that neither

Ferguson nor any decisionmaker at the FTC is accused of ever

mentioning before this investigation. [[ECF 1, Ex. A; ECF 1,

Ex. D]]. So the FTC is likely to succeed on the merits of this

70

Khan, The Capitol Forum Interview Series: Lina Khan, supra note

40, at 1:34 (emphasis added); cf. Redacted Amended Complaint,

supra note 30 (antitrust enforcement action against Facebook);

Redacted Complaint, supra note 50; FTC Amicus Curiae Brief at 8-

12, supra note 65 (advocating for antitrust remedies to combat

Google’s “network effects” and “data feedback loops”).

71

Khan, Aspen Ideas Festival: When is ‘Big’ Just Too Big?, supra

note 58, at 12:34 (emphasis added); cf. Redacted Amended

Complaint, supra note 30 (antitrust enforcement action against

Facebook); FTC Amicus Curiae Brief at 8-12, supra note 65

(advocating for antitrust remedies to combat Google’s “network

effects” and “data feedback loops”); Redacted Complaint, supra note

50 (antitrust enforcement action against Amazon).

23

appeal — the first factor we consider when deciding whether

to grant a stay of the district court’s preliminary injunction.72

To support its theory of retaliation, Media Matters’

evidence is sparse. Its only evidence about any FTC

decisionmaker is the podcast interview and memo by Ferguson

that I described above.73 But Ferguson didn’t criticize Media

Matters in his interview or in his memo. Indeed, he didn’t even

mention Media Matters.

Instead, Ferguson criticized “progressives” in the Biden

Administration for censoring the speech of their political

opponents, noted that he believed their censorship violated the

First Amendment, worried that they might continue their

efforts once out of power through collusive advertiser boycotts,

and said he would try to stop that kind of alleged antitrust

violation if he led the FTC. Not a single one of those

statements evinced an “intent to target media groups and other

actors in language that focuses on their viewpoints and the

content of their speech”74 — rather, they evinced an awareness

of what members of the Biden Administration had done and an

intent to investigate collusive advertiser boycotts against

platforms that allow the kind of speech that the Biden

Administration had censored.

True, in Ferguson’s interview and memo, he didn’t discuss

investigating conservatives for colluding to suppress speech.

72

See Nken v. Holder, 556 U.S. 418, 426 (2009).

73

In paragraph 60 of its complaint, Media Matters mentions an

additional interview of Ferguson, but there is no reference to that

interview in the district court’s Order, in the opposition by Media

Matters to the FTC’s Motion for a Stay, or in the panel’s Order today.

74

Order Denying the FTC’s Motion for Stay Pending Appeal at 16

(hereinafter Order).

24

But that’s because there had been no conservatives in the Biden

White House. And as Ferguson saw it — and as seven out of

seven federal judges had seen it — the record of the past four

years was replete with “progressives” in the White House and

their ideological allies censoring “ideas that Silicon Valley and

progressives don’t like.”75

In an ironic twist on Ferguson’s campaign against

censorship, my colleagues argue that his statements help prove

that the FTC violated the Free Speech Clause when it issued a

civil investigative demand to Media Matters. For the reasons

I’ve explained above, they are mistaken. That Ferguson’s (far-

from-incriminating) comments are discussed in just one

paragraph of the (twenty-three-page) order says more about

this case than do any of the quotations picked out of context by

Media Matters and included in the order’s solitary paragraph.

To be clear, I take no position on whether the Biden

Administration violated the First Amendment or whether

advertiser boycotts violate antitrust laws. Neither, at least in

this litigation, does Media Matters. Both are important legal

questions. And the legality of advertiser boycotts may one day

be litigated in court. At that point, this case will look more like

a sideshow than a lawsuit — a forgettable political spat

between political activists and a political branch of

government.

As for Media Matters’ laundry list of statements made by

those without any authority to make decisions at the FTC, that

evidence is “a sideshow of a sideshow.”76 Elon Musk lacks

that authority, and so his commentary on Media Matters is

75

Transcript of Andrew Ferguson on The War Room:11-30-24,

supra note 11, at 2.

76

Lawrence of Arabia (Columbia Pictures, 1962).

25

irrelevant to this case.77 The same goes for Stephen Miller.78

And Mike Davis.79 And the Attorney General of Missouri.80

And the Attorney General of Texas.81 And X Corporation.82

And Joe Simonson, Jon Schweppe, and Jake Denton.83 Those

last three people are the only three on this list who even work

at the FTC, and “Media Matters has not even alleged (let alone

demonstrated) that any of these officials were in any way

involved in the issuance of” Media Matters’ civil investigative

demand.84

* * *

Finally, the other stay factors85 are intertwined with the

merits and favor a stay of the “improper intrusion by a federal

court into the workings of a coordinate branch of the

Government.”86 The FTC has an interest in lawfully

“enforcing consumer protection laws,”87 and it was irreparably

harmed when the district court enjoined its lawful activity.

And Media Matters does not need an injunction to protect it

77

Cf. Order at 1, 13; see also District Court Opinion at *1, *3.

78

Cf. Order at 1; see also District Court Opinion at *1, *3.

79

Cf. Order at 17; see also District Court Opinion at *1, *4, *19.

80

Cf. Order at 1, 13; see also District Court Opinion at *1, *3, *20.

81

Cf. Order at 1, 13; see also District Court Opinion at *1, *3, *20.

82

Cf. Order at 1-2, 13; see also District Court Opinion at *1-*5, *21.

83

Cf. Order at 16-17; see also District Court Opinion at *5, *20.

84

Stay Motion at 16.

85

See Nken, 556 U.S. at 426.

86

Immigration & Naturalization Service v. Legalization Assistance

Project of Los Angeles County Federation of Labor, 510 U.S. 1301,

1306 (1993) (O’Connor, J., in chambers).

87

Order at 21.

26

from irreparable harm because the FTC inflicted no harm,

irreparable or otherwise.

I respectfully dissent.