Holyoak Seeks FTC Study on ‘Cancel Culture’ and Deplatforming

The FTC should use its investigatory powers to study “cancel culture,” deplatforming and the denial of financial services, Commissioner Melissa Holyoak said Wednesday during a George Mason University Mercatus Center virtual discussion.

A potential candidate for FTC chair under a Republican administration (see 2410160030), Holyoak said one of today's “most pressing” concerns is the “relationship between large tech and individual liberty.”

The commission, she said, could use its FTC Act Section 6(b) authority, which carries subpoena power, to study tech platforms’ “opaque” terms and conditions, which might be inconsistent with “reasonable” consumer expectations.

“When we deny financial services or deplatforming or something, what we’re doing is treating consumers like second-class citizens,” she told former FTC General Counsel Alden Abbott, now a researcher at the Mercatus Center, which hosted Wednesday's event. “This is so concerning to me. Cancel culture -- it’s rampant, and these concerns are real, and we need to be thinking about them.” This would be a “really important study for the commission to pursue,” she said. “So I’m hoping that that is something we could be looking at in the near future.”

The FTC should also “strongly consider rescinding or revising” the Biden administration’s merger guidelines. The merger document can be improved to better serve its intended purpose, which is helping federal courts issue competition rulings, she said.

The 2023 guidelines -- an effort FTC Chair Lina Khan and DOJ Antitrust Division Chief Jonathan Kanter led -- updated the previous 2010 document (see 2312180069). FTC Commissioner Andrew Ferguson, another potential candidate for Republican chair, said in June that the agency should avoid a political cycle where the document is rescinded every time the opposing party takes power (see 2406130058).

The 2023 guidelines cite a lot of “old” case law, ignore new case law and downplay the role of economic analysis, said Holyoak: “I would strongly consider rescinding or revising.” The agency was right when it updated the document, but further changes should be rooted in “good economic analysis.”

The Biden administration wasted agency resources on rulemakings that exceeded the FTC’s statutory authority, she said. Holyoak and Ferguson have dissented on several rules and enforcement actions under Khan (see 2410160032, 2409190014 and 2409250026). Holyoak said the commission exceeded its authority in its proceedings on noncompetes, health breach notification and negative option subscriptions (see 2410240001). These “broad” rulemakings “come at an expense and opportunity cost to being able to bring some of the enforcement action. ... We are confusing our role. We are not the legislature, and we should be thinking about that.”