A Top Antitrust Enforcer Is Open To Prosecuting People Who Disagree With Him
Mark Meador thinks the Federal Trade Commission may have the legal right to investigate nonprofits that “advocate for the interests of giant corporations” if they don’t disclose their donors.
The Federal Trade Commission's (FTC) Mark Meador recently insinuated that his agency may investigate nonprofits and academic institutions that object to antitrust enforcement actions without disclosing their donors for deceptive practices. While Meador may think it's OK to probe parties for disagreeing with him, the FTC's consumer protection remit does not sanction prosecuting those who reject the commissioner's antitrust ideology.
Meador recently reposted a video of him discussing the "academic whitewashing" of antitrust during an event hosted by American Compass and the Conservative Partnership Institute on May 1. (While no full recording of the event exists at press time, an employee of American Compass tells Reason that the clip is from the aforementioned event.)
Meador complains about academics "renting out their Ph.D. [and] their reputation to advocate for the interests of giant corporations." He rightly acknowledged that people are free to do whatever they want but then said that the FTC brings "enforcement actions against influencers and reviewers who advocate for products without disclosing that they're being paid for it."
Meador wondered aloud whether nonprofit employees and academics who advocate "for the interests of certain corporations or mergers in their white papers and their op-eds without ever disclosing that they're being paid to do so" may also be guilty of deceptive practices. He did not state that the FTC would bring enforcement actions against academics but said it's "worth investigating."
While Meador may think "it's an interesting question" whether he may prosecute his ideological opponents, the Supreme Court has already provided an answer. Eugene Volokh, professor emeritus at the University of California, Los Angeles School of Law, understands the ruling in NAACP v. Alabama (1958) as holding that, "when it comes to speech that is neither commercial advertising for a product…nor specifically election-related, broader First Amendment precedents would indeed preclude such disclosure requirements."
Nadine Strossen, former president of the American Civil Liberties Union and senior fellow at the Foundation for Individual Rights and Expression, tells Reason that "the Supreme Court has expressly distinguished between commercial and other communications." Citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), Strossen says "compulsory disclosure regarding non-commercial expression is presumptively unconstitutional."
John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, says that what Meador proposes the FTC do runs afoul of the Supreme Court's decision in National Rifle Association of American v. Vullo (2024). In this case, the Court unanimously ruled that "the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech." Vecchione says that, were the FTC to investigate nonprofits for their speech, it "would be stopped so fast your head would spin."
Meador is wrong to suggest that the FTC, which regulates commercial speech, can police the kind engaged in by academics and nonprofits.
Ethan Yang, adjunct research fellow at the American Institute of Economic Research, explains that "there is a vast difference between a [firm] paying a celebrity to endorse their product and an academic who is employed by a university or non-profit that takes diverse donations from a variety of different entities." Jessica Melugin, director of the Center for Technology and Innovation at the Competitive Enterprise Institute, tells Reason that "Meador is conflating commercial speech…with academic speech" and that government intervention in the latter is obviously inappropriate.
It is unclear how serious Meador is about prosecuting those whose opinions he deems ill-motivated. Regardless of Meador's intentions, he's "cast[ing] those who disagree with him as only motivated by material interests and not intellectually sincere," says Yang.
Instead of speculating about the motives of his ideological opponents, Meador should compete in the open marketplace of ideas—after all, his job is to preserve competition.
