Does the First Amendment immunize left-wing groups from being investigated for breaking the law? Of course not. Yet a district court recently said it does, writing an opinion that is extraordinary on its own terms, and that exemplifies the two tiers of justice our legal system sometimes affords.
First, some background. There have been credible allegations — most notably in a suit filed by X — that Media Matters for America, a left-wing nonprofit, orchestrated a coordinated effort to pressure advertisers to pull funding from X after Elon Musk acquired the company in 2022. The basic claim is that Media Matters, along with other groups, encouraged major companies to boycott advertising on X based on the platform’s refusal to censor conservatives’ speech, police information about Covid-19, and the like. If these allegations are true, then Media Matters likely violated the antitrust laws.
Enter the Federal Trade Commission. Congress has charged the FTC with enforcing (among other things) the antitrust laws. Pursuant to that authority, the FTC opened an investigation into the above-described conduct. This is neither surprising nor notable. When there are credible allegations of lawbreaking, law enforcement agencies are duty-bound to investigate them.
But rather than cooperate with the FTC and dispel suspicions that it broke the law, Media Matters sued the commission to short-circuit the investigation. Media Matters’ basic claim is that the First Amendment forbids the FTC from even investigating its potential unlawful activity because FTC Chairman Andrew Ferguson and others associated with him have made comments critical of Media Matters in the past. This is an exotic claim, to say the least.
And yet a federal district judge in D.C. accepted it, enjoining the FTC from enforcing a civil investigative demand against Media Matters. The opinion is absurd, both in its cataloging of statements by various actors in and out of government and its legal conclusions about the significance of those statements. For example, here is an actual sentence from the court’s opinion: “One of [Chairman Ferguson’s] supporters, Mike Davis, who urged President Trump to nominate him to the role, made several public comments about Media Matters, including that Mr. Musk should ‘nuke’ the media company.”
It would be a big deal if investigative targets could stymie investigations by pointing to public statements by friends, associates, and “supporters” of the investigator. But that is not the law. The district judge who issued the injunction cited no comparable cases while discounting substantial contrary authority.
It is not surprising that the law doesn’t support the court’s conclusion, as the entire purpose of investigations is to determine whether lawbreaking occurred. The time for First Amendment defenses is in a resulting enforcement action. At that point, an appropriate constitutional judgment can be made against the backdrop of all the evidence — evidence a district court has now blocked the FTC from even gathering in the first place.
The court’s decision is troubling enough on its own, but it is especially so when contrasted with the judiciary’s reaction to high-profile targeting of conservatives. I am a firm believer in our legal system. Yet the disparate handling of broadly similar proceedings in recent years is concerning.
Hellbound and Down 
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