Clinic Urges D.C. Circuit to Prohibit FTC’s Investigation of Media Organization
The Media Freedom and Information Access (MFIA) Clinic at Yale Law School has filed an amicus brief urging the U.S. Court of Appeals in the District of Columbia to block a Federal Trade Commission investigation into news reporting by the organization Media Matters.
The brief asks the court to affirm an injunction that blocked a demand from the FTC for documents from Media Matters. The demand was issued after Media Matters warned advertisers that social media platform X (formerly Twitter) had begun placing advertisements next to posts carrying white nationalist messages and hate speech. Advertisers paused or reduced spending on X, according to the brief. In November 2023, Elon Musk threatened to file a lawsuit against Media Matters. The FTC claims it is investigating an improper advertising boycott; the MFIA brief calls it a bad faith, retaliatory use of the federal government that violates the First Amendment.
The brief was filed in Media Matters for America v. Federal Trade Commission, an appeal addressing the authority of the FTC to pursue a sweeping civil investigative demand that compels disclosure of a media organization’s newsgathering and editorial materials based on a novel theory of potential antitrust concerns. At the center of the case is whether the First Amendment permits the government to issue an unusually broad demand for records about a media organization’s sources, editorial decision making, and finances based on its reporting about advertisements and advertisers’ business decisions.
MFIA’s brief contends that the FTC’s demand violates the First Amendment for two independent reasons. First, retaliatory investigations of protected press activity pursued in bad faith are unconstitutional and may not be permitted to proceed. Second, the demands violate the qualified reporter’s privilege recognized by the D.C. courts, which prohibits overbroad investigative demands to the press irrespective of the government’s motive.
The brief explains that the FTC’s investigation targets core press functions — newsgathering, editorial decision making, and publication — and therefore implicates the First Amendment’s Press Clause as well as the Speech Clause. It emphasizes that the Press Clause safeguards “freedom…of the press” separately from speech and reflects the press’s “fundamental role” in democracy as “the information-gathering agent of the public.”
As the brief lays out, official harassment of the press compounds the constitutional harms by imposing a special burden on information-gathering. This injures not only journalists and publications but also the public at large. When demands are issued in bad faith, the clinic argues, there is no legitimate government interest to balance against press interests. Instead, courts must screen out bad faith subpoenas and similar compulsory tools aimed at harassing, obstructing, or punishing protected press activity.
“The antitrust laws are a powerful tool to correct real injuries. The FTC rightly has broad power to enforce them, and we trust such great power to be wielded with great responsibility. But it’s plain as day that the FTC’s power doesn’t extend to bullying journalists — and it’s offensive to a long history of antitrust enforcement and, more importantly, the First Amendment to pretend that it does,” said Raymond Perez, third-year Yale Law student and student director of the MFIA Clinic. “I am proud to represent a coalition of press organizations — from The New York Times to The Associated Press — who recognize this clear and present danger.”
The brief further explains that the reporter’s privilege applies to civil discovery and civil administrative subpoenas, and it functions as a prophylactic guard against chilling newsgathering. Furthermore, it argues, allowing the FTC to proceed without first resolving the privilege would inflict the very intrusion the privilege is meant to prevent — and that the mere issuance of the CID has already disrupted Media Matters’s reporting.
“The constitutionally protected rights of freedom of the speech and of the press exist so that the public can hold its government to account. The FTC’s targeting of Media Matters should be a warning not just to every news organization reporting on this administration but also to their readers and to the public at large,” said Tess Solomon, second-year Yale Law student and member of the clinic team.
The MFIA clinic team was led by clinic director David A. Schulz ’78, with significant contributions from Law School students Hannah Berkman ’26, Melanie Geller ’28, Raymond Perez ’26, Tess Solomon ’27, and Visiting Clinical Associate Professor John Langford ’14.
A decision from the D.C. Circuit is expected later in 2026.
The Media Freedom and Information Access Clinic at Yale Law School is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.
