FEC ‘compromise’ could threaten free speech online

July 16, 2018   •  By Eric Peterson   •    •  ,

Is your freedom to use the Internet to express your political opinions about to change drastically? Depending on the actions of the Federal Election Commission, this possibility is starker than you think.

The FEC recently heard testimony on two proposals to require disclaimers on online political advertisements. (My employer, the Institute for Free Speech, was one such group.) These dueling options concern only paid ads that specifically endorse or oppose a candidate for office.

At the hearing, some urged the agency to adopt a flexible approach for both speakers and websites hosting political ads. Others supported requiring disclaimers even when a person shares promoted content organically.

As the agency is only working with four of the usual six commissioners, it needs a unanimous vote to proceed with any new rule.

It was clear that two factions on the commission had major doubts about the other’s approach. But a compromise proposal seemed to intrigue both sides. This compromise would require either a full disclaimer or an icon allowing the user to see more information about the sponsor.

The commissioners seemed to agree on a need for a new rule. But it’s unlikely that any proposal will be agreed to and implemented before the midterms. Yet, despite the lack of a new rule, online political ads are already much more heavily regulated than they were in 2016.

Facebook, Twitter, and Google recently rolled out new policies for online ads and promoted content on political issues or candidates. In addition, three states (Maryland, New York, and Washington) have enacted strict laws for Internet ads.

Facebook now maintains a database of all its online advertisements, political or not. The database contains information on the ad, such as how many people it reached and how much it costs. All political ads also have disclaimers about who paid for the ad. Facebook’s definition of “political” is broad, encompassing ads that don’t mention candidates for office.

Facebook’s new database has the potential to lay bare the advertising strategies of groups across the political divide. Indeed, The New York Times and other outlets have already used this database to track targeting and spending data regarding Judge Brett Kavanaugh’s Supreme Court nomination. The repercussions of this database on those wanting to buy ads remains to be seen.

Twitter, by contrast, is taking a slightly more reserved strategy. It has only changed its policies on content directly related to federal officials or candidates. Issue speech, for the time being, remains unregulated. All political content on Twitter will have a purple icon to indicate to the audience that the content of the ad is political.

So far, Google is taking the lightest approach. The company only requires proof that an ad purchaser is American and, like Facebook, has created a searchable database.

Although these approaches are vastly different, none have prevented political ads from running on the respective platforms. The same isn’t true of the laws recently passed in Maryland and Washington.

These overly strict laws have caused Google to stop running state and local political ads in both states. Maryland legislators intended to deter Russian interference. Instead, legislators deterred American speech about the issues that matter to those living and working in the state.

This unfortunate outcome should be instructive to the FEC as it considers a compromise. Overly broad and restrictive laws from state governments are already silencing everyday Americans who care about state and local issues.

The steps taken by the big three companies are certainly not immune from criticism. But their leaders are aware that they must strike a balance between competing priorities. They must weigh allowing viewers to have more information about ads while not overburdening those who want to speak. These companies know their platforms best and can tailor solutions to address the needs of various parties while fixing any issues.

With this in mind, the FEC’s goal should be maximizing the ability of Americans to speak about the causes about which they are passionate. This means using the lightest regulatory touch possible, promoting flexibility, and allowing companies to come up with solutions that fit their unique platforms.

The FEC has the ability to preserve a vibrant and open Internet where public discourse on important issues thrives. A light touch will establish ground rules and discourage states from coming up with overly restrictive laws. If the commissioners take a different, more heavy-handed approach, the Internet will cease to become the accessible forum it is today.


This post originally ran in Washington Examiner on July 16th 2018.

Eric Peterson

Eric Peterson


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