Political Advertisements on Facebook and its implications in reference to media law

The 2016 election was one of persuasive media and an overwhelming effort to run down each party by those opposed. During the election, social media was used to get political advertisements out to the public and influence their votes. In fact, candidates spent more than $1.4 billion on online political advertisements using social media platforms (Glaser, 2017). However, most of these online advertisements had no attribution or information on who actually funded the posts. In November 2017, Facebook disclosed that that Russian agents, led by The Kremlin, bought advertising space on Facebook, to a Senate Intelligence Committee. The organization posted advertisements that aimed specifically at “polarizing the American voting public”, as the New York Times reported (Kang, 2017). Federal investigators looked into Facebooks claims and reported that these advertisements were a part of “a disinformation campaign”, spreading propaganda and “fake news” across the social media site. Facebook reported that approximately 10 million people had seen the ads. Furthermore, there were over 500 pages and profiles linked to the Kremlin that had been active in buying and publishing advertisements on Facebook. These advertisements undoubtedly interfered with the 2016 election, as can be seen in the case of Reverend Heber Brown III. A Facebook page entitled, “Blacktivist” called for a protest in Baltimore, Maryland. Brown was active in looking for more information, and some even showed up to the protest. The Facebook page was created and run by those in The Kremlin (Isaac, 2017). Americans were not able to differentiate between real advertisements and those created by the Russian intelligence agency for the purpose of politically dividing the United States. Additionally, it has come to light that a group by the name of Cambridge Analytica used the data of 50 million Facebook users in order to run advertisements and persuade them to vote for Donald Trump in the 2016 election. The use of Facebook advertisements to persuade Americans gave many the sense that foul-play had been involved.

The news that ill-influenced advertisements not only fooled Americans but might have played a role in the 2016 election did not fare well. Many parties have and are still taking steps to prevent this from happening again. However, there is much debate on how to handle these misleading advertisements and prevent them from influencing Americans again.  The Federal Election Commission immediately called upon social media leaders, Facebook included, to discuss possible solutions to the issue. On October 31, 2017, the Campaign Legal Center and the Take Back Action Fund wrote an advisory opinion request to the FEC, asking them to provide guidance on online political advertisement disclosure (Campaign Legal Center, 2017). On December 15, 2017, the FEC ruled that if the advertisements included any kind of imagery or videos, then they needed information about who paid for it. Facebook argued that the ads on their website were not large enough to be given these disclosure rules. They said that the advertisements on their site were similar to text messages or bumper stickers, and therefore could not be subjected this strict law. This argument left the FEC split in their decision 3-3 to enforce advertisement disclosures (Glaser, 2017).

Additionally, through a bipartisan effort, the Honest Ads Act was proposed on October 19, 2017. This bill contended that disclosure for online political advertisements would be mandatory, and face the same requirements as television, print, and radio advertisements. This disclosure would include who paid for the advertisements, and how much was paid (Honest Ads Act of 2017, S.1989, 115^thCongress, 2017).  While Facebook said they support the Honest Ads Act, they were more in favor of self-regulating their advertisements, and avoiding government regulation all together. Currently, the Facebook advertising policy has a few standards before allowing the ad onto the site. Every advertisement on the site is reviewed and checked for targeting and content. Advertisements may not target users in a way to harass, provoke, or discriminate against anyone (Facebook, 2018).

Government regulation of political advertisements on Facebook bring up many issues in the realm of media law. On the forefront of the recent debate is the idea of political speech in general. The main purpose of the first amendment in and of itself is to limit the government from restricting the rights of people and publications to speak freely. Courts have designated levels of protection for different kinds of speech. Political speech is regarded as the highest protected speech by the First Amendment and is valued as “core speech”. In order for the legislature to regulate these advertisements, if they were valued as core political speech, courts would have to find that the regulations pass strict scrutiny. Facebook could argue that this is not the least restrictive means that the government could place upon the company, and that this was to broad for what they see is very small advertisements.  Facebook could also argue that only targeting political advertisements could be considered viewpoint discrimination, which would immediately interfere with First Amendment principles of political speech. The FEC could argue that there is a compelling government interest, and that overrides Facebook’s requests for self-regulation. 

Courts are also concerned with the concept of a “chilling effect”, in which that by regulating speech, this would deter Americans from using their first amendment rights, and therefore is ruining free speech for the country in general. This can be argued for the Facebook advertisements, where if regulation is so strong, this could deter groups from advertising on the platform. 

Time and time again, the Supreme Court has allowed political speech to exist freely without threat of government intervention and regulation. In fact, in the case of United States v. Alvarez (2012), the Supreme Court valued the protection of free speech so much, that they ruled that false speech was still protected under the first amendment. This could potentially be applied to these political advertisements, in which many were false and misleading. However, in 2014, Congress ruled that those who spread untrue information could not profit from it or this would not be protected. (Trager, 2016). While it can be assumed that lawmakers meant an economic benefit originally, in a sense, advertisers and campaigns themselves would be profiting off of the misinformation of Americans who vote for their candidate, and therefore these advertisers could be not protected by a first amendment right to spread political speech. 

Courts have further expressed even more protection for speech in general when it is done in a public forum. A public forum is a space that is historically used for public speech. Speech in public forums typically receive more protection from government intervention and regulation. Social media platforms, Facebook included, are at this point considered public forums. Therefore Facebook could argue that speech on their platform, including political speech and advertisements are open to even more protection from the government. 

Key Supreme Court decisions regarding unanimous speech also heavily apply to this issue. In 1958, Alabama struggled to stop the states NAACP chapter from remaining active. After failed attempts to stop the organization all together, they then asked for the Alabama NAACP to disclose all members of their organization. The Supreme Court held that the group did not have to share the names of its members who wished to remain anonymous. They argued that an individual has the right to “pursue their private interests privately and to associate freely with others in doing so” (NAACP v. Alabama, 1958). Additionally, they also contended that releasing the names of those involved would deter them from participating and sharing their beliefs. Facebook could use this case to present possible problems with having to disclose advertisers. Like NAACP v. Alabama, revealing unanimous information to the public would deter advertisers from continuing their work with Facebook. Facebook could use this case to argue their want for no government-regulation. However, in Doe v. Reed, in which residents in Washington requested the names of those who had created a petition against a same-sex referendum in the state, the Supreme Court ruled that disclosing the petition signatures would not infringe on first amendment rights. The court ruled that while this disclosure would publicize individual’s political views, this would also “preserve the integrity of the electoral process” (Doe v Reed, 2010). The FEC could use this case to show that publicizing who paid for the advertisements could also preserve the integrity of the electoral process. 

Finally, campaign finance laws factor into this conflict between the FEC and Facebook. The ruling in First National Bank of Boston v. Bellotti (1978), sanctified that direct spending on any campaign aspect is protected as core political speech. The court ruled that any corporation could speak and contribute to any matter. Facebook could argue that if contributions and paying for political advertisements are considered core political speech, then having to announce the names of those that paid would be unconstitutional. 

This conflict and its implications spread further than just notifying users of who funds political advertisements. If passed, this could open up the floodgates into a potential for all unanimous information on social media sites to be public information, and to reshape the way campaigning on social media sites are structured. As of April 23, 2018, Facebook requires verification of any account trying to publish political advertisements. The advertisement will also be labeled as a political advertisement and a disclosure of who paid for the advertisement (Lumb, 2018). In and of itself, it can be argued that congress’s action to push the Honest Ads Act, and in turn stress the idea of government regulation, pushed Facebook and other social media sites to take this action. This could be considered a chilling effect, because the idea of government intervention could lead to parameters that Facebook would not come up with on its own. If Facebook’s regulations, that are heavily influenced by the government’s intervention on the issue, limit constitutionally protected speech, then there are definitely first amendment and media law issues that could and most likely will appear following this regulation. 

I believe that while a chilling effect is something that would be a great way to solve the issue of “fake news” and foreign intervention into American elections, it simply is that; a chilling effect. No matter what the possible solutions it raises, it still would limit a form of free speech, and therefore would be infringing on the First Amendment rights of those wanting to advertise. We have seen many cases throughout the semester of hateful and untrue speech. While it is easy to want regulation to take place for the sole purpose of not wanting that speech around in the first place, it cannot be accepted as a moral and legal defense when the first amendment is such a foundational concept to America in general. 

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Works Cited

Advisory Opinion Request: Ad Disclosure. (2017, October 31). Retrieved from http://www.campaignlegalcenter.org/document/advisory-opinion-request-ad-disclosure

Doe v Reed, 561 U.S. 186 (2010)

Doe v. Reed, 561 U.S. 186 (2010). (n.d.). Retrieved from https://supreme.justia.com/cas...

Facebook. (n.d.). Retrieved from https://www.facebook.com/policies/ads

Honest Ads Act of 2017, S.1989, 115^thCongress (2017)

Glaser, A. (2017, December 18). Political Ads on Facebook Now Need to Say Who Paid For Them. Retrieved from http://www.slate.com/blogs/fut...

Isaac, M., & Shane, S. (2017, October 02). Facebook's Russia-Linked Ads Came in Many Disguises. Retrieved from https://www.nytimes.com/2017/1...

Kang, C., Fandos, N., & Isaac, M. (2017, November 01). Russia-Financed Ad Linked Clinton and Satan. Retrieved from https://www.nytimes.com/2017/1...

Lumb, D. (2018, April 23). Facebook starts verifying political advertisers in the US. Retrieved from https://www.engadget.com/2018/...

Lumb, D. (2018, April 23). Facebook starts verifying political advertisers in the US. Retrieved from https://www.engadget.com/2018/04/23/facebook-starts-verifying-political-advertisers-in-the-us/

NAACP v. Patterson, 357 U.S. 449 (1958)

NAACP v. Patterson, 357 U.S. 449 (1958). (n.d.). Retrieved from https://supreme.justia.com/cases/federal/us/357/449/case.html

Trager, R. (2016) Book. London, United Kingdom: Sage