WASHINGTON D.C. — Today, Senators Mark Warner (D-VA) and Amy Klobuchar (D-MN) held a press conference announcing introduction of the Honest Ads Act. Co-sponsored by Sen. John McCain (R-AZ), the bill would would extend the FEC and FCC’s disclosure rules for broadcasters and other media to online ads, requiring online platforms like Facebook, Google and Twitter to retain digital copies of political ads as well as information about whom they were targeted to, when they ran, their cost, and who ran them. Platforms would also be required to make “reasonable efforts” to ensure that foreign nationals do not fund political ads. Like the FCC’s broadcast file rules, the bill would cover ads made by, for, or about political candidates, about elections, and about “national legislative issue of public importance.”
“The bill’s goals are laudable, but the complications it raises illustrate just how difficult it would be to craft new legislation to counter foreign influence on our elections,” said TechFreedom President Berin Szóka. “As the bill’s findings acknowledge, the use of fake social media pages and accounts, and bots that impersonated real people, may have played a far larger role than ad buys. The $100,000 in Facebook ads traced to Russian buyers amounts to just 0.00833% of the Clinton campaign’s total spending. But expanding regulation beyond electioneering ads would raise even greater First Amendment concerns. FEC rules already ban foreign nationals from making expenditures ‘in connection with’ American elections anyway. It’s fair to expect online ad platforms to do more to identify ads funded by foreign sources, but imposing vague standards for intermediary liability is always a bad idea: It could easily be abused for political purposes. We also don’t want ad platforms to be so unsure of their potential liability that they make it harder for American citizens, especially those of foreign origin or living overseas, to exercise their free speech rights online.”
“Just because the FCC has regulated broadcast advertising for issue advocacy doesn’t mean the same regulation would be constitutional online,” continued Szóka. “Under the Supreme Court’s Red Lion decision, broadcasters enjoy less protection than all other media because of the limited, public nature of radio spectrum. Indeed, in Buckley v. Valeo, the most important case on political speech before Citizens United, the D.C. Circuit rejected mandatory disclosure of ads on issues of ‘public importance,’ calling them ‘vital and indispensable to a free society and an informed electorate.’ The Supreme Court’s subsequent decision did not address this issue, since the government declined to appeal it. But if anything, fundamental changes in the media landscape since the 1970s will make it harder to justify regulating issue advocacy. Also, the bill has no exemption for minor parties, whose lower chances of winning elections diminish the government’s interest in regulation, as the Court explained in Buckley.”
“Setting a $500 cumulative annual threshold for the disclosure mandate would create a slew of chilling effects,” concluded Szóka. “The Internet has empowered ordinary Americans to buy ads, or just boost the reach of their posts, in ways that were never feasible in traditional media. But many may hesitate to exercise their free speech rights if their expenditures and messages become public records. Likewise, the Internet gives advertisers a radically cheaper way to test their messaging by gauging response rates in small samples — the online version of focus groups. This bill would require public logging of every message tested, no matter how small the test group, if the total ad buy in year exceeded $500. That will obviously chill the use of the Internet as a cost-effective way to test potentially delicate messages. Making it harder to identify offensive messages could have the perverse effect of making America’s already-toxic political discourse even worse.”
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