The D.C. Circuit issued no opinions last week. There was one late October order to note, however—declining a stay pending appeal sought by the FTC. The case is Media Matters for America v. FTC, No. 25-5302, in which Media Matters sued to quash a civil investigative demand issued by the FTC, arguing that it was issued in retaliation for Media Matters’ speech, specifically its report that “corporate advertisements on X appeared adjacent to antisemitic posts.” The district court preliminarily enjoined the demand, holding that Media Matters was likely to succeed in proving the demand was issued in retaliation for the content of Media Matters’ speech. The FTC sought to stay that injunction pending appeal. The D.C. Circuit denied the stay by a 2-1 vote. Judge Millett and Judge Wilkins voted to deny the stay; Judge Walker, dissenting, would have granted it.

The majority particularly emphasized two points in finding the FTC was unlikely to succeed on the merits of its arguments against the preliminary injunction. First, the panel held that the FTC was unlikely to succeed at showing the district court lacked jurisdiction. Despite the general rule that a challenge to an investigative demand must await the agency’s enforcement action, circuit precedent establishes jurisdiction for First Amendment challenges to “sweeping” demands that create actual and ongoing harms to free-speech rights. Second, the panel held that the FTC hadn’t shown that “the record does not support the district court’s preliminary determination of a ‘causal link’ between Media Matters’ protected speech and the issuance of the Demand.” The court emphasized, however, the preliminary nature of the analysis:

Dissenting, Judge Walker would have granted the stay, primarily because, in his view, the FTC is “(very) likely to prevail on the merits.” Skeptical of the causal link between Media Matters’ speech and the investigative demand, Judge Walker concluded that the investigative demand was instead part of a good-faith “investigation into anticompetitive collusion by advertisers that boycott media outlets.”