from the or-just-stop-spamming? dept
FTC Chair Andrew Ferguson has apparently decided his latest form of politically motivated lawfare (the thing he insisted he would end once he took over) should be threatening Google over… checks notes… having spam filters that work too well at blocking actual spam. In a letter sent to Google CEO Sundar Pichai last week, Ferguson claims the company may be violating the FTC Act because Gmail’s spam detection system catches Republican fundraising emails.
This isn’t just bad policy—it’s a rehash of thoroughly debunked claims from 2022, dressed up with new threats and an alarming misunderstanding of both the First Amendment and the FTC’s actual authority.
The Letter That Shouldn’t Exist
Ferguson’s letter reads like it was written by someone who’s never encountered a spam filter in their life. He claims Gmail’s spam detection constitutes potential “unfair or deceptive acts or practices” because:
My understanding from recent reporting is that Gmail’s spam filters routinely block messages from reaching consumers when those messages come from Republican senders but fail to block similar messages sent by Democrats. Indeed, according to recent reporting, Alphabet has “been caught this summer flagging Republican fundraising emails as ‘dangerous’ spam— keeping them from hitting Gmail users’ inboxes—while leaving similar solicitations from Democrats untouched….”
Let’s be real here: Republican political organizations have a long history of sending emails that look exactly like spam because, well, they often are spam. They use deceptive subject lines, aggressive tactics, and mass-mailing techniques that trigger spam filters not because of political bias, but because they’re using spammy tactics.
Even pro-MAGA commentators have called out their own team for this behavior:
When your own supporters are calling your emails spam, maybe the problem isn’t Google’s algorithms.
Ferguson then tries to shoehorn this into FTC authority by claiming:
Alphabet’s alleged partisan treatment of comparable messages or messengers in Gmail to achieve political objectives may violate both of these prohibitions under the FTC Act. And the partisan treatment may cause harm to consumers.
This is legal nonsense wrapped in political theater. The FTC has never policed “political bias” in private companies’ editorial decisions, and for good reason—the First Amendment prohibits exactly this kind of government interference.
We’ve Been Here Before (And It Was Stupid Then Too)
This entire controversy stems from a 2022 study by political consultants who discovered that Gmail caught more Republican emails in spam filters. What Ferguson conveniently omits is what the study’s own authors admitted: this only happened on completely untrained accounts. Once users actually used their spam filters—you know, the way normal people do—the difference disappeared entirely.
The study also found that other email providers caught more Democratic emails as spam, but Republicans laser-focused on Gmail because it fit their victimization narrative better.
Republicans then filed both lawsuits and FEC complaints (both of which failed easily) claiming this was somehow an “in-kind contribution” to Democrats. Never mind that when given a chance to weigh in on this matter, the public—including many Republicans—don’t want political spam cluttering their inboxes and wish politicians would stop sending so much of it.
There’s also the fact that Google has offered Republicans a system to have their emails whitelisted… and Republicans never seem to take them up on it.
Why This Is Legally Bankrupt
Tech lawyer Berin Szoka demolished Ferguson’s legal theory in a thread explaining why this investigation violates the FTC’s own authority:
Bias can’t be “unfair” because Section 5(n) requires the FTC to show that “substantial injury” is “not outweighed by countervailing benefits,” and the First Amendment bars the government from weighing a spammer’s right to “speech” against a website’s right to editorial control over how to define and block spam.
Szoka also notes that claiming Google “deceived” users would require showing the company made specific promises about spam handling that it then broke. Ferguson’s letter contains no such allegations… because they don’t exist.
The real tell is in Ferguson’s breathless claim that:
Hearing from candidates and receiving information and messages from political parties is key to exercising fundamental American freedoms and our First Amendment rights.
This fundamentally misunderstands how the First Amendment works. Google has its own First Amendment right to decide what content to host and how to organize it. The government can’t force private companies to amplify speech they’d rather not carry—that would be compelled speech, which the Supreme Court has repeatedly ruled violates the First Amendment.
Political Theater, Not Law Enforcement
Ferguson barely bothers making an actual legal case here, probably because he knows it’s garbage. This is political posturing designed to keep the White House happy by appearing to “do something” about conservative claims of “censorship.”
The letter is particularly rich coming from an administration that spent months threatening tech companies over fact-checking and content moderation, then celebrated when those companies caved to the pressure. Apparently free speech principles only matter when they benefit the right people.
Here’s what Ferguson and his allies refuse to acknowledge: if Republican fundraising emails are getting caught in spam filters more often, maybe the problem isn’t Google’s algorithms. Maybe the problem is that Republican organizations keep using tactics that trigger legitimate spam detection.
Political emails are explicitly exempt from the CAN-SPAM Act, which means political fundraisers can get away with behavior that would be illegal for commercial senders. They often use deceptive subject lines, fake urgency (“FINAL NOTICE”), and other tactics that any reasonable spam filter would catch.
The solution isn’t to threaten tech companies with government investigation for having effective spam filters. The solution is for political organizations to stop acting like spammers.
Ferguson’s letter represents yet another in a long line of attempts at dangerous expansions of FTC authority into areas where it has no business. The FTC is supposed to protect consumers from actual fraud and deception, not police private companies’ editorial decisions based on political considerations.
If this theory of FTC authority were accepted, it would open the door for government officials to threaten any tech company whose algorithms don’t produce politically favorable results. That’s not consumer protection—that’s garden variety authoritarianism.
The First Amendment exists precisely to prevent government officials from using their power to coerce private companies into amplifying preferred political messages. Ferguson’s letter is exactly the kind of government overreach the founders sought to prevent.
Ferguson’s not dumb. He knows this investigation is legally baseless. He knows the FTC lacks authority to police political bias in private editorial decisions. He knows the First Amendment protects Google’s right to determine its own spam filtering policies.
This letter isn’t about consumer protection or fair trade practices. It’s about using government power to intimidate a private company for making editorial decisions that favor users who don’t want spam over Republican politicians. That’s not just bad policy—it’s a violation of everything the First Amendment is supposed to protect.
The real scandal here isn’t that Gmail’s spam filters work too well. It’s that the chairman of a federal agency thinks threatening private companies over their editorial decisions is somehow part of his job description.
Filed Under: andrew ferguson, ftc, ftc act, gmail, gop, section 5, section 5 authority, spam, spam filter, unfair and deceptive
Companies: google
