from the retaliatory-animus dept
A federal judge has delivered an extraordinary rebuke to the FTC’s Andrew Ferguson, finding that his investigation into Media Matters was motivated by “retaliatory animus” rather than legitimate antitrust concerns. In a scathing ruling, Judge Sparkle L. Sooknanan granted Media Matters’ motion for a preliminary injunction, calling out not just the investigation’s pretextual nature, but the systematic pattern of harassment the organization has faced for accurate reporting.
Courts almost never find that federal agencies act with improper retaliatory motives. That Judge Sooknanan felt compelled to make such a finding—explicitly stating that “retaliatory animus was the but-for cause of the FTC’s CID”—signals just how egregious Ferguson’s conduct has been.
For those keeping score at home, this is now the third time federal courts have had to block frivolous, retaliatory government investigations targeting Media Matters for the heinous crime of… accurately reporting that ads appeared next to Nazi content on X. Because apparently, in Trump’s America, doing your job as a journalist is grounds for federal investigation.
Let’s recap this absolutely ridiculous saga. In November 2023, Media Matters published an article showing that major brand advertisements were appearing next to literal neo-Nazi content on Elon’s platform. This happened right after Musk endorsed an antisemitic conspiracy theory with his now-infamous “You have said the actual truth” response.
The report was factually accurate. Even Musk’s own lawsuit admits this. But rather than fix the problem or take responsibility, Musk decided to shoot the messenger. He promised a “thermonuclear lawsuit” and then followed through, filing ridiculously frivolous litigation against Media Matters in multiple countries.
But that wasn’t enough. Trump advisor Stephen Miller then essentially put out a public call (on Twitter, of course) for state prosecutors to pile on, leading to “investigations” by Texas AG Ken Paxton and Missouri AG Andrew Bailey. Both of those got smacked down by federal courts for the obvious First Amendment violations they were.
And now we have Andrew Ferguson’s FTC taking up the cause with an equally bogus “antitrust” investigation, in the form of a “civil investigatory demand” (effectively a subpoena).
Judge Sooknanan’s ruling is a masterclass in judicial restraint while still absolutely eviscerating the government’s case. She starts by noting just how extraordinary it is for a court to find that a federal agency acted with improper retaliatory motives:
Speech on matters of public concern is the heartland of the First Amendment. The principle that public issues should be debated freely has long been woven into the very fabric of who we are as a Nation. Without it, our democracy stands on shaky ground. It should alarm all Americans when the Government retaliates against individuals or organizations for engaging in constitutionally protected public debate. And that alarm should ring even louder when the Government retaliates against those engaged in newsgathering and reporting.
The judge then details the pattern of harassment that Media Matters has faced, noting how Ferguson basically auditioned for his FTC role by promising to go after the organization:
Before President Trump selected him to head the FTC, Mr. Ferguson appeared on Steve Bannon’s podcast, where he said that it is “really important that the FTC take investigative steps in the new administration under President Trump” because “progressives” and others who are “fighting “disinformation” were “not going to give up just because of the election.” One of his 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. And after taking the reins, Chairman Ferguson brought on several senior staffers at the FTC who previously made public comments about Media Matters.
But it gets better. The judge highlights how Ferguson’s supporters and appointees have made their motivations crystal clear. Mike Davis, mentioned above, has been quite explicit about his goals:
One of Mr. Ferguson’s supporters was Mike Davis, who wrote on X that “Donald Trump should nominate digital freedom fighter Andrew Ferguson to chair FTC.” Id. ¶ 63 (Mike Davis (@mrddmia), X (Dec. 7, 2024, 2:09 pm), https://perma.cc/V9XL-J7UX). Mr. Davis has made many comments about Media Matters throughout this controversy. On December 1, 2022, Mr. Davis posted on X that Mr. Musk “should nuke @MMFA [Media Matters’ account] and all staff accounts” because “[t]hey’re a cancer to free speech.” Id. ¶ 64 (quoting Mike Davis (@mrddmia), X (Dec. 1, 2022, 11:54am), https://perma.cc/VVD5- NAR5). Later, on November 10, 2023, he solicited money to help push back against Media Matters: “If you want to help @Article3Project build our (growing) list of leftists to throw in the DC gulag with @MMFA’s @ehananoki and @MattGertz, please donate here.” Id. (quoting Mike Davis (@mrddmia), X (Nov. 10, 2023, 1:53 pm), https://perma.cc/L8E8-ZSJF). And he cheered on Mr. Musk’s eventual lawsuits against Media Matters, writing that “[a]dvertiser boycotts are highly effective tactics leftists use to cow media executives to destroy free speech—and control the political narrative. @MMFA is the driving force behind conservative media getting crushed— and conservative voices silenced. Cheers to @ElonMusk.” Id. (quoting Mike Davis (@mrddmia), X (Nov. 29, 2023, 5:42 pm), https://perma.cc/G88S-YC3U). Mr. Davis “is now an outside adviser to the Trump administration.”
The supposed “free speech warrior” wants to literally destroy an organization for exercising its free speech rights and bragged about it publicly online. Great job.
Judge Sooknanan also calls out how Ferguson stacked his team with people who had publicly expressed hatred for Media Matters:
When Mr. Ferguson became Chairman of the FTC, he brought in several senior staffers who had previously made comments about Media Matters. Joe Simonson, the FTC’s Director of Public Affairs, had posted on X in May 2024 that Media Matters employed “a number of stupid and resentful Democrats who went to like American University and didn’t have the emotional stability to work as an assistant press aide for a House member.” Jon Schweppe, a Senior Policy Advisor to Chairman Ferguson, had said in June 2023 that Media Matters “wants to weaponize powerful institutions to censor conservatives,” before celebrating one of Mr. Musk’s lawsuits against Media Matters, which he called “the scum of the earth.”… And Jake Denton, the FTC’s Chief Technology Officer, had stated in June 2023 that Media Matters was “an organization devoted to pressuring companies into silencing conservative voices.”
This isn’t even subtle. Ferguson hired a bunch of people who spent years calling for Media Matters to be destroyed for its speech and cheering on every earlier attempt to punish the company for its speech. They can’t really act shocked when people question the investigation’s legitimacy.
Of course, it also doesn’t help that the FTC’s theory for this “investigation” is utterly absurd. They’re arguing that accurate reporting about a platform’s content problems somehow constitutes illegal “collusion” because it might cause advertisers to make informed business decisions.
This is not how antitrust law works. At all. It’s not how anything works.
The judge notes the obvious problems with this theory, particularly the complete lack of evidence that Media Matters has any actual information about the “brand safety lists” that supposedly form the basis of this investigation:
The FTC claims that it believes Media Matters has information about the use of brand suitable or brand safe lists to coordinate ad placement… But they never explain why they have reason to believe that Media Matters has information relating to the use of… lists to coordinate ad placement. So the record is utterly devoid of evidence to support such a claim.
The judge also points out how the scope of the FTC’s demands goes far beyond any legitimate antitrust investigation:
Nor does the sweeping scope of the FTC’s CID square with the proffered reason. The FTC claims that it believes Media Matters has information about the use of “brand suitable” or “brand safe” lists to “coordinate ad placement.”… it also includes other demands that go well beyond the investigation’s purported scope. See, e.g., id. at 5 (“Provide each financial statement, budget, profit and loss statement, cost center report, profitability report, and any other financial report regularly prepared by or for Media Matters on any periodic basis. For each such statement, budget, or report, state how often it is prepared, and identify the employees responsible for its preparation.”); id. at 3 (“Provide all documents that Media Matters either produced or received in discovery in any litigation between Media Matters and X Corp. related to advertiser boycotts since 2023). As a whole, then, the scope of the CID suggests pretext on the part of the FTC, which is fatal to the Defendants’ causation arguments.
That “pretext” finding is the ballgame on causation. Agencies almost always get deference on subpoenas; courts almost never call pretext. She did.
One of the most important aspects of this ruling is how it documents the actual harm that this coordinated campaign of harassment has inflicted on Media Matters’ ability to do journalism. The chilling effects of this kind of lawfare are not just real, but they’re a significant drag on any organization. The judge quotes extensively from Media Matters staff about how the investigation has chilled their reporting:
And Media Matters has demonstrated that the FTC’s CID chilled its activity. One declarant has sworn that “the prospect of relaxing Media Matters’ posture on research and reporting about government entities” after winning legal victories against the state CIDs “was stymied by the FTC’s CID.” Dimiero Decl. ¶ 19; see also Padera Decl. ¶ 17 (similar). “For example, without the investigation, Media Matters would likely have looked into reporting about Andrew Ferguson’s merger requirements for Omnicom and IPG, which placed unprecedented limitations on their speech in a transparent attempt to aid media platforms, like X, with limited content moderation efforts.” Dimiero Decl. ¶ 20. The declarant even identified particular stories that Media Matters would have pursued but for the FTC CID:
Furthermore, because of the FTC CID, we have refrained from reporting on the FTC’s relationship with right-wing media or Musk’s relationship with the FTC, as we would have in the past. We have also refrained from publishing research related to right-wing media’s long-running list of companies that they have boycotted or celebrated damaging financially in light of Ferguson’s claims about advertising boycotts. We have even refrained from reporting on our own story of the FTC’s investigation into Media Matters out of fear of retaliation, also turning down a number of media requests for information and appearances on various shows and outlets about a wide range of topics related to the investigation. We also turned down a high-profile interview that was unrelated to the FTC but was about right-wing content creators, deciding that the risk of engaging with the subject matter was too high in the wake of the FTC’s CID. In the past, we likely would have written about a federal agency pressuring companies to adopt policies favored by the Administration or about Media Matters’ experience of being subject to a government investigation because of our speech. Such fears about FTC reporting did not exist in the past. For example, during the first Trump Administration, Mr. Hananoki repeatedly wrote about subjects that were within the scope of the FTC’s work. Now, any reference to the FTC or commissioners must be approved by senior staff and the legal team, burdening an already cumbersome editing process.
This is the point. The process is the punishment. Even when these investigations ultimately fail in court, they succeed in their real goal: making it too expensive and risky for organizations to criticize powerful people.
The New York Times recently reported on just how devastating this campaign has been for Media Matters:
[Media Matters] has racked up about $15 million in legal fees over the past 20 months to defend itself against lawsuits by Elon Musk, in addition to investigations by Mr. Trump’s Federal Trade Commission and Republican state attorneys general.
The group has slashed the size of its staff and scrambled to raise more cash from skittish donors, according to documents and interviews with 11 people familiar with the organization’s fight to survive.
That might not be enough. Media Matters tried to settle with Mr. Musk by offering concessions, but the sides were far apart and talks fizzled. Even when the group has triumphed in court, Mr. Musk has appealed or filed new cases elsewhere.
This is what success looks like for Musk and his political allies. They don’t need to win these cases. They just need to make criticism so expensive that organizations like Media Matters either shut up or shut down.
Perhaps the most remarkable aspect of this ruling is how explicitly Judge Sooknanan calls out the government’s bad faith. Courts are generally very deferential to government investigations, operating under a presumption that prosecutors act in good faith.
But this case was so egregious that the judge felt compelled to state the obvious:
Finally, given the comments by Chairman Ferguson and his colleagues about Media Matters, the timing of the CID, and evidence of pretext, Media Matters is likely to show that retaliatory animus was the but-for cause of the FTC’s CID.
This ruling matters far beyond Media Matters. What we’re seeing is a systematic attempt to weaponize government power against critics and journalists who challenge those in power or their allies. It’s a form of censorial lawfare, and it’s particularly ridiculous coming from those who claim to be free speech supporters.
This is authoritarianism 101. And it’s happening here, right now, in broad daylight.
The good news is that at least some federal courts are still functioning as a check on government overreach. Three different rulings have now recognized these investigations for what they are: politically motivated attacks on free speech.
But the damage has already been done. As the Times reports, Media Matters is struggling to survive financially.
Even worse, the organization has been “removed from coalition communications about FTC actions” and has had to turn down media appearances for fear of further retaliation. This is actually an important point, and I’m glad the judge called it out. The fact that others have removed Media Matters from communications out of fear that it will end up in the hands of a vindictive FTC following a vexatious investigation is really harmful.
This is the chilling effect in action. Even when the First Amendment ultimately wins in court, the process of getting there can be devastating to the organizations trying to exercise their constitutional rights.
The real question is whether other news organizations and advocacy groups will learn the wrong lesson from this. Will they decide it’s too risky to hold powerful people accountable? Will they self-censor rather than face years of expensive litigation and government harassment?
If so, then Musk and Ferguson will have achieved their real goal, even while losing in court. The First Amendment only works if people are willing to exercise their rights under it. And making those rights impossibly expensive to exercise is just another form of censorship.
At least for now, we can celebrate that the courts are still willing to call out government retaliation for what it is. But we shouldn’t kid ourselves about the broader threat to press freedom that this case represents.
When the world’s richest man and his political allies can spur multiple investigations targeting a nonprofit for accurate reporting—and when those investigations can nearly destroy that organization even when they ultimately fail—then we have a serious problem with the state of free speech in America.
Judge Sooknanan’s ruling is a victory. But it’s a victory in a war that shouldn’t have to be fought in the first place.
Filed Under: 1st amendment, andrew ferguson, antitrust, elon musk, free speech, ftc, mike davis, retaliation, sparkle sooknanan, stephen miller
Companies: media matters, twitter, x
