OPINION:
Federal Trade Commission Chair Andrew Ferguson recently warned Apple that the curation of stories on its news widget might constitute illegal deceptive practices.
Although this warning shot probably isn’t a prelude to more substantial action, it was still well worth firing.
Mr. Ferguson’s letter to Apple relies heavily on a report from the Media Research Center. The report found that of the 620 “Top Stories” Apple News displayed in January, 440 were from left-leaning outlets and precisely zero were from right-leaning outlets, including widely read sources that frequently break major stories, such as Fox News and the New York Post.
The Media Research Center also notes that, although most news aggregators rely on algorithms to select featured stories, Apple News — which comes installed on all the company’s devices — has human editors who make those determinations.
Obviously, Apple can do whatever it wants with its own widget, but the FTC Act prohibits it from misleading users about what it’s doing.
In his letter, Mr. Ferguson wrote that the exclusion of conservative outlets raises “serious questions about whether Apple News is acting in accordance with its terms of service and its representations to consumers, as well as the reasonable consumer expectations of the tens of millions of Americans who use Apple News.”
The average American would read the “Top Stories” heading and naturally assume they were selected based on a neutral assessment of their relevance or an objective measure of their popularity (based on shares or clicks). If, instead, Apple News’ editors are secretly subjecting users to left-leaning narratives disguised as their exclusive form of journalism under the assumption that right-leaning outlets are incapable of producing quality journalism, then the company might conceivably have crossed a line.
Any right-leaning organization that describes itself as “unbiased” would have to fear an FTC lawsuit, as would the Media Research Center itself. The center’s website declares that the “truth should not be a partisan debate” and that “Americans deserve to know the real, unfiltered news.” It probably wouldn’t be too hard for hostile federal regulators with access to the Media Research Center’s internal communications to discover (and punish) an undisclosed bias that contradicts those statements.
Mr. Ferguson knows all this. He is not looking for a long, expensive, futile legal battle or to open a Pandora’s box of politically motivated FTC witch hunts. He is just putting Apple on notice, which might be enough to persuade the company to be a little more bipartisan in the curation of its top stories.
Since Mr. Ferguson took over as FTC chair at the beginning of President Trump’s second term, he has dropped or settled many of the lawsuits he inherited from Lina Khan, who preceded him as commissioner and abused her authority to punish companies for little more than the crime of success. Her zealous campaign was not short of criticism.
The only major Khan-era lawsuit he hasn’t yet dropped, FTC v. Southern Glazer’s, perfectly exemplifies Ms. Khan’s approach to antitrust. This lawsuit, which Mr. Ferguson opposed at the time of its release, aims to effectively outlaw the bulk discounts that popular retailers such as Costco negotiate with their suppliers. It would have raised prices for American shoppers.
If the case stays in place, then the FTC will burn through tens of millions of taxpayer dollars to pursue it. So it should come as no surprise that this case seems to be next in line on the chopping block.
Mr. Ferguson knows the difference between preventing genuine harm to consumers and counterproductive and counter-competitive bureaucratic bullying. After all, he secured a historic $2.5 billion settlement with Amazon after the company tricked people into signing up for Prime.
He also knows that leftists maintain their narrative hegemony by passing off their beliefs as “neutrality” or “basic human decency.” That appears to be what Apple News is doing.
Apple is free to curate its platform however it likes, but it shouldn’t pretend ideological gatekeeping is the same thing as neutrality. Calling attention to that distinction is exactly the kind of scrutiny powerful platforms should expect. It’s also exactly what we should demand for our nation’s antitrust leaders.
With aggressive hawks such as Mr. Ferguson at the helm, Americans will soon realize there are gatekeepers who ensure that perceptions of neutrality are based on actual neutrality.
• Ediberto Roman, an antitrust expert, is a professor of law at Florida International University.
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