Online election ads are the hot topic in Washington these days. From Russian Facebook ads featuring Jesus and Satan arm-wrestling or a multicolored, many muscled Bernie Sanders, to Cambridge Analytica’s probably bogus claims of dastardly psychological manipulation, there is great consternation as to whether social media is being abused to the detriment of democracy. These concerns are not limited to our shores: see, for instance, Facebook and Google’s controversial recent decision to remove ads related to Ireland’s constitutional referendum on abortion.
Into the fray now steps the Federal Election Commission, which proposes to define for the first time how election ads on social media and other internet platforms will be regulated under the campaign finance laws. The FEC has put forward a pair of options, one of which would require as a default that online ads ahead to the same strictures as radio, TV, and newspaper ads, with very limited wiggle room to adapt disclaimers to the nature of internet platforms. An alternative proposal would allow more adaptation but still take up as much as 10% of a given ad as a default. Cato has submitted a comment, expressing our view that the FEC should give special weight to the burden on First Amendment rights imposed by excessive disclaimer requirements. As Justice William Brennan (no right-wing extremist) explained, “compelling the publication of detailed … information that would fill far more space than the advertisement itself would chill the publication of protected … speech and would be entirely out of proportion to the State’s legitimate interest in preventing potential deception.”
The proliferation of online media has democratized the marketplace of ideas as quickly as an electron speeds down a wire. Unfortunately, our regulatory state still moves at an analog pace. The FEC should thus tread lightly in imposing strictures that will hamper innovation and clutter our screens with information that does little to actually inform the few who would even take the time to read it. The right of citizens to communicate the message of their choice is at the core of the freedom of speech. Any burden placed on it must intrude as little as possible.
To the extent the FEC feels that guidance should be given, we encourage it to consider the least restrictive means available, consistent with the right of free expression protected by our founding document. We have confidence that the American people can fairly assess the arguments presented in the marketplace of ideas, and believe that drowning them in warnings and provisos will do more to the clutter up that marketplace than illuminate it.