Gus Hurwitz on Meta’s FTC Challenge

Fast Company – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Fast Company about the lawsuit filed by Meta challenging the constitutionality of the Federal Trade Commission’s enforcement actions. You can read full piece here.

But it’s a gamble that could pay off, suggest legal experts. “It’s a potentially valid argument they have to defend themselves against FTC litigation,” says Gus Hurwitz, senior fellow and academic director specializing in tech competition and innovation at the University of Pennsylvania Carey Law School. “They’re being sued, they want to win. You can win on the substance, or you can win procedurally. When you’re a lawyer defending your client, it doesn’t matter how you win. It’s pretty superficial to call this a low blow.”

Some have criticized Meta’s legal tactic. But while Hurwitz is wary of psychoanalyzing what he calls the “Twitter commentariat,” he says that Meta could have a point—both with the bald facts of the case and also because of the broader implications. “The reality is, we need people to bring these sorts of arguments in order to shape and develop the law,” he says.

“Fundamentally, I think it comes down to the use of the role of government, government authority, and government power,” says Hurwitz. Some say it’s obvious that companies like Meta should be regulated by the FTC. Others argue that agencies like the FTC have too broad a remit and shouldn’t be allowed to act without direct oversight from Congress. “The reality is probably somewhere in between: that there is some reasonable amount of authority for the FTC to have,” says Hurwitz. “We’re in a new and still new and complicated legal setting. And it’s unclear what Congress intended. It’s unclear what the boundaries are. And those are questions for the courts or Congress ultimately to resolve. And that’s what this case is going to be about.”

Hurwitz points out that these are not FTC-specific issues. Just yesterday, the Supreme Court heard arguments in the SEC v. Jarkesy case, which involves some of the exact same claims Meta is including in the FTC. In that case, someone was arguing that the SEC has an unconstitutional structure, just as Meta is arguing here. Over the past few years, there have been cases involving the EPA, FCC, and others.