Antitrust Law Daily Wrap Up, ANTITRUST—D.C. Cir.: FTC stay of preliminary injunction denied pending appeal in Media Matters CID dispute, (Oct 24, 2025)

By Justin Marcus Smith, J.D.

The panel majority said a stay of the preliminary injunction enjoining the CID would have been extraordinary relief empowering agencies to issue sweeping demands that inflict concrete and ongoing injuries suppressing speech and journalism.

The FTC did not show clear error in connection with a district court preliminary injunction that suspended an FTC civil investigative demand (CID) served on Media Matters, held a panel majority of the U.S. Court of Appeals for the District of Columbia. The majority denied an emergent stay pending the FTC’s appeal of the preliminary injunction. Media Matters would still have to prove the CID was retaliatory and in violation of the First Amendment, but the FTC did not appear to have a likelihood of success on the merits. The D.C. Circuit deferentially affirmed that the FTC did not show a strong likelihood of success given the “unique” and thus far undisputed facts of the case. First, Media Matters appeared to have exhausted its remedies at the jurisdictional threshold. Second, the preliminary facts did not appear to contradict the district court finding that the CID was retaliatory. The CID was also so broad it was not clear how it pertained to antitrust concerns. The lack of clarity precluded much analysis in balancing the equities. The dissent compared, among other things, the comments of current FTC Chair Ferguson with those of former Chair Khan and concluded Media Matters’ evidence of retaliation was sparse. The court granted the Foundation for Individual Rights and Expression leave to participate as amicus curiae (Media Matters for America v. FTC, No. 25-5302 (D.C. Cir. Oct. 23, 2025)).

Background. On August 15, 2025, the federal district court in Washington, D.C. preliminarily enjoined an FTC Civil Investigative Demand (CID) served on Media Matters for America (Media Matters). The district court saw the FTC CID as likely “retaliatory” in nature and in violation of Media Matters’ rights under the First Amendment. That preliminary injunction followed two others the district court previously entered against Missouri and Texas CIDs. On August 22, 2025, the district court declined to stay the preliminary injunction, and the FTC appealed seeking a stay.

Jurisdiction. The D.C. Circuit rejected the FTC contention that, per Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the enforcement provision in 15 U.S.C. § 57b-1(e) deprived the district court of jurisdiction. Media Matters exhausted what little FTC procedure was available. FTC officials rejected requests that the FTC withdraw or significantly modify the CID to avoid First Amendment harms. There was no dispute, unlike in Thunder Basin, that the next step for review was in the district court, not in a court of appeals. 15 U.S.C. § 57b-1(e).

Causality. The appellate court continued that the FTC did not show, at this stage, that it was likely to overturn the district court tentative finding of a “causal link” between Media Matters’ protected speech and the “sweeping and unexplained” CID. The unique and undisputed facts already compiled in the preliminary record did not appear to contradict the district court tentative finding that Media Matters protected speech likely caused the FTC to issue the CID. The FTC issued the CID in the midst of various litigation and information demands aimed at Media Matters. Courts separately ruled that state CIDs probably violated the First Amendment.

Second, the district court did not err in considering the broad scope of the FTC CID, including an apparent effort to probe into Media Matters editorial decisions. In the panel majority view, the CID did not, as statutorily required, specify legal provisions specific to putative violations of law. Therefore, it was hard to discern the dissenting view that the CID was meant to probe antitrust matters.

In the majority view, portions of the CID linked it directly to Media Matters speech about the social media platform X. Among other circumstances, the majority perceived that Commissioner Ferguson expressed an intent to target media groups based on content and viewpoint. Courts have recognized that such circumstantial evidence, including temporal proximity between protected speech and adverse government action, can support an inference that protected speech caused an agency response. The unusual and unprecedented array of facts in the preliminary record facially undercut any FTC likelihood of success in showing the district court erred in finding a likelihood of retaliation. Media Matters would of course still have to prove retaliation.

Equities. The court said the FTC lack of clarity left it bereft of a basis for finding the district court abused its discretion on irreparable injury or in weighing the competing equities in this case. In any event, the FTC could not act unlawfully even in pursuit of desirable ends. Enforcement of an unconstitutional action is always contrary to the public interest.

Dissent. Circuit Judge Walker dissented on the basis that, in his view, the FTC is the party likely to prevail on the merits because Media Matters has sparse evidence of retaliation. He said the Media Matters article critical of X did not mention the FTC or anyone who runs it, and it preceded the FTC investigation by a year and a half. In his view, the CID sought to get at whether Media Matters is an advocacy organization that helps “activists” take direct action against offending media institutions. FTC concern about that was salient in the broader context of purported Biden administration censorship and subsequent migration of former Biden officials into the private sector. Chair Ferguson never advocated the punishment of “progressives” for their beliefs. Instead, he chided progressives in the Biden administration for punishing others for what others believe, and the FTC can make sure collusion of that sort does not move into the private sector. Former FTC Chair Khan similarly advocated the FTC should investigate the big tech companies. She even “voiced the very same concerns that Ferguson has expressed about the effect of anticompetitive behavior on journalism.” Judge Walker quoted, with citations, how Khan repeatedly identified Facebook and others as future targets of investigations.

The Case is No. 25-5302.

Judge: Walker, J.

Attorneys: Stephen Pierce Anthony (Covington & Burling LLP) for Media Matters for America. H. Thomas Byron, III for the FTC, Andrew N. Ferguson, Mark R. Meador and Melissa Holyoak.

Companies: Media Matters America

Cases: Antitrust Advertising ConsumerProtection DistrictofColumbiaNews FederalTradeCommissionNews GCNNews