A number of trends that will continue to unfold in 2020 have the potential to significantly impact Americans’ political speech rights. As policymakers, pundits, and the public continue to debate the contours of free speech amid technological change and the emergence of new tools for speaking, Institute for Free Speech staff will be following each of these trends closely with an eye toward protecting Americans’ speech, press, assembly, and petition rights.
In 2020, state legislators will undoubtedly continue to pursue laws that trample on the right to associate privately. But a significant question for the new year is whether the Supreme Court will hear a case asking it to reaffirm this right.
Several current cases ask the Supreme Court to uphold free speech precedents set during the civil rights era that prevent states from compelling nonprofits to hand over lists of their donors to the government. One of these cases, IFS v. Becerra, was filed by the Institute for Free Speech.
Politicians’ desire to control speech online is among the greatest looming threats to free speech in the new year. Ever since concerns over foreign electoral interference were thrust into the national spotlight in 2016, politicians have been exploiting these concerns to justify a host of restrictions on Americans’ ability to speak freely.
Legislation such as the so-called “Honest Ads Act” and H.R. 1 purport to address online foreign interference in election campaigns. However, neither bill actually targets foreign actors. Instead, the measures seek to broadly regulate Americans’ speech on the internet, even pure issue advocacy. Grassroots movements would be especially harmed by the costly new requirements for speaking online. Low-budget groups may decide not to engage in online advertising at all due to the legal liability created under such bills and the associated compliance costs.
In addition to regulating speakers, these proposals also target online platforms. And online platforms have already demonstrated that they would rather stop accepting political ads than risk being fined for failing to comply with often incomprehensible laws. After a bill modeled after the “Honest Ads Act” became law in Maryland, Google stopped accepting all state and local ads about candidates in the Free State. (Maryland’s law has since been struck down in federal court as unconstitutional under the First Amendment.) And when Washington state sought to enforce onerous regulations on online speech about candidates and ballot measures, both Facebook and Google announced that they would stop accepting such ads.
We expect more of these proposals to creep up in states and in Congress in 2020 and will be sounding the alarm to defend the ability of Americans and groups of Americans to express themselves online.
Platforms’ Ad Policies
Lawmakers have also effectively bullied social media companies into adopting policies that would be unconstitutional if enforced by the government. Congress convened multiple hearings in which members grilled tech company representatives for not doing more to police political speech on their platforms.
In response, Twitter banned essentially all political ads. (In particular, it banned the promotion of “content that references a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome” – a sweeping category swallowing discussion and debate about issues facing Americans across the country.) Google no longer allows advertisers to target audiences based on political affiliation. This policy change was immediately criticized for its disproportionate effect on smaller, grassroots organizations. Facebook instituted an authorization process for any advertiser wishing to speak about “social issues, elections or politics.” Predictably, the initial rollout of the policy hamstrung speakers that had no interest in electoral, or even issue, advocacy.
How platforms respond to criticism and design policies that affect their users’ ability to speak will be of serious interest – and impact – in the months ahead.
While tech companies have attempted to placate lawmakers’ concerns about online speech, politicians have continued to berate platforms for not removing speech they deem to be false. Google prohibits ads with demonstrably false information. And Facebook even fact-checks unpaid (organic) posts from users. But some politicians would like these corporations to be the arbiters of truth for all political statements.
In response, Google reminded critics that “robust political dialogue is an important part of democracy, and no one can sensibly adjudicate every political claim, counterclaim, and insinuation.” Facebook does not fact-check claims made directly by politicians due to the company’s “fundamental belief in free expression, respect for the democratic process, and the belief that, especially in mature democracies with a free press, political speech is the most scrutinized speech there is.” Facebook also says that “by limiting political speech we would leave people less informed about what their elected officials are saying and leave politicians less accountable for their words.” Still, despite these concerns, influential lawmakers have proposed policies to stringently regulate platforms that host online speech they deem to be false.
Manipulated Media (“Deepfakes”)
Politicians have also become increasingly concerned about online video content deceptively edited to cast their words or actions in a negative light. In response to demands that Facebook remove a video edited to make U.S. House Speaker Nancy Pelosi appear intoxicated, the company pledged to remove “misleading manipulated media” that meets certain criteria. While Facebook marked the video in question “false,” it did not meet the company’s criteria for removal. Facebook’s policy does include a ban on purposely misleading “deepfakes,” which it defines as videos that are “the product of artificial intelligence or machine learning that merges, replaces or superimposes content onto a video, making it appear to be authentic.” Twitter labels “Tweets containing synthetic and manipulated media” and will remove such content if it is “likely to cause harm.” And Google outright prohibits ads featuring deepfakes.
Concern over the use of deepfake technology has prompted lawmakers to propose (and pass) bans on deepfake videos featuring candidates. However, drawing clear lines between allowable edited content and illegal edited content is no easy task. Witness the current debate over whether a video interspersing clips of Speaker Pelosi ripping up the State of the Union Address while the president speaks warrants removal from various social media platforms. Legislative responses to political deepfakes have the potential to censor legitimate forms of expression such as parody and satire.
Animus towards technology companies has led some politicians to conclude that revoking or amending Section 230 of the Communications Decency Act is the solution to a variety of their problems with online speech. Section 230 states that operators of websites that host third-party content are not liable for illegal content posted by users. The law also allows companies to moderate or remove content without becoming liable for all third-party content as a result. These legal guarantees have allowed companies to permit users of their websites to instantaneously self-publish while also moderating content in accordance with the companies’ standards. Prior to the adoption of Section 230, court rulings indicated that internet companies had to either allow all content with no moderation or assume legal responsibility for everything that appears on their sites.
Politicians have proposed tinkering with Section 230 as a solution to everything from false speech to political bias. While debate about Section 230 rages on, one thing is clear: amending that provision in any way would seismically change the ability of Americans to express themselves online.
The Federal Election Commission currently lacks the voting quorum necessary to take enforcement actions or issue advisory opinions. This doesn’t mean that campaigns and groups will be able to violate the law with impunity. Rather, they are still responsible for filing regular reports with the FEC, and any violators will be held accountable once the agency regains a quorum. Furthermore, the Justice Department has jurisdiction over any criminal violations of campaign finance law.
However, the inability to issue advisory opinions leaves campaigns and groups without an official means of determining what activity is permissible. At present, when a novel legal question arises, regulated entities will either have to risk fines or choose not to engage in the activity.
As all remaining commissioners are serving well-past their original terms, we hope the president and the Senate can agree on six new commissioners this year and restore the FEC’s quorum.
The federal government and state legislatures across the country are proposing and passing legislation that dramatically increases the legal risks of protesting. While the bills are usually intended to prevent illegal activity such as violence or vandalism, they do so by creating new liability for protest organizers that threatens First Amendment rights. Under many of these bills, advocacy groups that organize a protest are liable for any illegal activity that occurs at the protest. Whether intentional or unintentional, this will inevitably lead to fewer people and groups being willing to organize or sponsor political protests.
In October, South Dakota agreed to drop its recently passed “riot-boosting” law after a federal judge temporarily blocked enforcement and said it was likely unconstitutional. (Governor Kristi Noem is now attempting to push a tweaked version of the law through the Legislature.)
Hopefully, in 2020, courts will continue to crack down on states’ efforts to chill First Amendment-protected activity. Better yet, maybe state legislators will learn the First Amendment does not allow them to suppress dissent with threats of debilitating fines and jail time.
While new technology has allowed us to associate with each other more easily than ever, it has also enabled law-enforcement agencies to monitor citizens’ associations and speech at unprecedented levels. From monitoring activists on social media to tracking citizens’ locations via cell phones to facial recognition technology, increased surveillance capabilities pose a significant threat to freedom of association. How courts continue to define the constitutional parameters of government surveillance will have a profound impact on the right to associate for political purposes without government interference.
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As the year progresses, the Institute for Free Speech will continue to monitor these and other developments that impact Americans’ First Amendment political rights. While many challenges lie ahead, we’re hopeful this will be a positive year for free speech. And of course, we’ll be fighting every day to make sure that’s the case.