New from the Institute for Free Speech
Super PACs: Expanding Freedom of Speech
By Luke Wachob
The product of a 2010 court ruling, “super PACs” have been a boon to citizens wishing to more effectively speak about elections. Legally, they have ensured that Americans do not lose their First Amendment rights when they join together in groups. In practice, they have challenged the monopoly on political speech held by powerful politicians and big media corporations…
Super PACs have been given a bad name by their competitors – politicians and big media companies accustomed to dominating the debate. In reality, super PACs allow Americans to more effectively exercise their First Amendment right to express opinions about candidates. They allow anyone who wishes to join together to advertise their opinion in greater competition with elite institutions. And although they are free from contribution limits, super PACs are still subject to campaign finance laws, must publicly report their donors, and ultimately account for only a fraction of total political spending.
Our democracy is better off when Americans can join together and speak as a group about the issues that unite them. Voters are better off when they can hear opinions beyond those shared by politicians, political parties, and the media. Super PACs are here to stay, and that’s a welcome development for anyone who believes in free political speech.
In the News
The Hill: Federal move to undo internet freedom would make US more like Russia, not less
By Eric Wang
This week, three congressional committee hearings will probe Russian attempts to influence our election campaign last year on social media. S.1989, the recently introduced, so-called “Honest Ads Act,” likely will feature prominently. The bill is being sold “first and foremost [as addressing] an issue of national security.”
But unless Americans exercising their First Amendment rights is now “an issue of national security,” the bill and its sponsors are not being honest about its effects. With Americans bearing 99.99 percent of its regulatory impact, the “Honest Ads Act” is a sledgehammer for a problem better addressed with a scalpel.
According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.
Wall Street Journal: Proposed Legislation to Boost Online-Ad Disclosures Draws Criticism
By Julie Bykowicz
Sen. Mark Warner (D., Va.) and Sen. Amy Klobuchar (D., Minn.) introduced a bill last week that proposed online disclosure and reporting requirements for any political entity that spends more than $500 in a given year on a platform that has a major audience…
“The idea that we’re going to allow a group of regulators, a group of bureaucrats to regulate what we will be able to see in terms of social media or other formats offends me and I will certainly oppose that in any way I can,” Rep. Paul Mitchell (R., Mich.) said at a hearing this week about online advertising.
David Keating, president of the Center for Competitive Politics, which advocates for less campaign finance-regulation, said Mr. Warner’s plan is “basically a campaign finance bill taking advantage of the controversy of Russian speech in our election cycle.”
He said it would make it tougher for Americans to participate in politics by potentially increasing the cost of social-media advertising that small groups use as online companies may pass on the costs of the mandated screening…
The FEC has reopened its comment period on rules for online advertising-something it has largely avoided regulating over the years.
Center for Individual Freedom: The “Honest Ads Act” Threatens Free Speech (Audio)
Bradley A. Smith, Chairman and Founder of the Institute for Free Speech and Former Chairman of the Federal Election Commission, discusses the so-called “Honest Ads Act,” how the proposed legislation would impose more burdens on Americans’ free speech rights, and the problems with extending the existing “electioneering communication” FEC disclaimer language to social media ads.
The Hill: Don’t blame ‘megadonors’ for the GOP effort to repeal ObamaCare
By Joe Albanese
Many of those who overstate the power of large donors are, unsurprisingly, also the same people arguing for more restrictions on political spending and giving. They either don’t realize or willfully ignore that money isn’t just a tool for the wealthy and powerful. It enables citizens to pool their resources and amplify their voices.
That’s why membership groups like AARP and labor unions are so influential. Restricting one form of political speech would just force Americans to find other, perhaps more burdensome ways to make their voices heard. More importantly, First Amendment rights to political speech are inseparable from the ability to give money to a campaign, party, or advocacy group. The Supreme Court has said so for decades.
A strong democracy requires different groups voicing their concerns in different ways. This helps politicians keep their finger on the pulse of supporters and detractors. Donating money hasn’t allowed one viewpoint to dominate government. As long as differing viewpoints exist, it never will. It’s certainly one powerful way to let politicians know when the American people notice that promises have not been kept.
Columbus Dispatch: Contentious free speech issues cropping up on college campuses
By Jennifer Smola
In most debates involving First Amendment matters on campus, administrators say they are weighing free speech rights versus campus safety. And they’re arriving at sometimes differing conclusions. The University of Cincinnati and Ohio State each received requests and subsequent legal threats to let Spencer speak on campus. While Ohio State repeatedly denied the request and is now facing a federal lawsuit, Cincinnati said it would “uphold the First Amendment and allow Richard Spencer to speak on campus.” …
The only legal argument Ohio State might be able to present is that Spencer’s speech incites violence, and therefore is not protected by the First Amendment, said Tokaji and Capital University Law School professor Bradley A. Smith.
“I don’t think the school could say, ‘We don’t like what Richard Spencer stands for,'” said Smith, chairman and co-founder of the Institute for Free Speech in Alexandria, Virginia. “But they could say ‘we’re not concerned about Richard Spencer coming here per se, we’re concerned that the things he will say … would constitute fighting words that would lead to imminent violence.'”
That still could be difficult to prove, Smith and Tokaji agreed. It’s not enough that Spencer’s words might upset people, they said. Ohio State would have to prove that he specifically says things that cause violence – such as urging his listeners to burn down a building, for example.
Bloomberg Radio: Bloomberg Law Brief: New Legislation for Online Ads (Audio)
Bradley Smith, a professor at Capital University Law School and former chairman of the Federal Election Commission, discusses a new bipartisan plan in the Senate to regulate online advertising after foreign interference in the 2016 U.S. election. He speaks with June Grasso on Bloomberg Radio’s Bloomberg Law.
Internet Speech Regulation
Wall Street Journal: Who Will Rein In Facebook? Challengers Are Lining Up
By Christopher Mims
Pressure is mounting, at home and abroad, from legislators, regulators and activists, all looking for various ways to nudge and, in some cases, shove Facebook to acknowledge and act on its responsibility as the most powerful distributor of news and information on Earth.
While Twitter, Google’s YouTube unit and many other social-media platforms face similar problems, they don’t all command the same audience as Facebook. But what happens to Facebook will likely apply to them all…
Congress is loath to mint new regulations, that hasn’t stopped Sens. John McCain (R., Ariz.), Amy Klobuchar (D., Minn.) and Mark Warner (D., Va.) from proposing the Honest Ads Act, which would force internet companies to tell users who funded political ads…
The new bill is an obvious way to bring the tech giants in line with other media, with whom they clearly now compete, says Yochai Benkler, a Harvard Law School professor and co-director of the Berkman Klein Center for Internet and Society.
What it won’t solve is the even larger problem of Russia creating content on Facebook that’s compelling, aka enraging, enough to go viral without paid promotion.
Facebook Newsroom: Update on Our Advertising Transparency and Authenticity Efforts
By Rob Goldman
Starting next month, people will be able to click “View Ads” on a Page and view ads a Page is running on Facebook, Instagram and Messenger – whether or not the person viewing is in the intended target audience for the ad. All Pages will be part of this effort, and we will require that all ads be associated with a Page as part of the ad creation process. We will start this test in Canada and roll it out to the US by this summer, ahead of the US midterm elections in November…
During this initial test, we will only show active ads. However, when we expand to the US we plan to begin building an archive of federal-election related ads so that we can show both current and historical federal-election related ads…
We are starting with federal elections in the US, and will progress from there to additional contests and elections in other countries and jurisdictions. As part of the documentation process, advertisers may be required to identify that they are running election-related advertising and verify both their entity and location.
Once verified, these advertisers will have to include a disclosure in their election-related ads, which reads: “Paid for by.” When you click on the disclosure, you will be able to see details about the advertiser. Like other ads on Facebook, you will also be able to see an explanation of why you saw that particular ad.
For political advertisers that do not proactively disclose themselves, we are building machine learning tools that will help us find them and require them to verify their identity.
Washington Post: Political ignorance and the future of political misinformation online
By Ilya Somin
Outside the realm of politics, few would deny that the benefits of online information flows vastly outweigh their costs…
The problem here has less to do with the specifics of the internet and more with the way we process political information. In most private-sector contexts, we have strong incentives to guard against deception and keep wishful thinking under control…
By contrast, if you find a website or Twitter feed that promises we can promote social justice or make America great again by supporting some dubious candidate or public policy, incentives for skepticism are much weaker…
As a result, most voters have strong incentives to be “rationally ignorant” about politics, often remaining unaware of even very basic information. They also tend to a poor job of evaluating what they do learn – including believing extremely dubious claims that reinforce their preexisting views, while ignoring strong evidence that cuts the other way…
If we want to reduce the dangers of political ignorance and deception, we should focus less on the details of technology and more on the structure of incentives we have created for voters and political elites.
The Media
Wall Street Journal: New Rules for More Media Competition
By Editorial Board
Under current rules, media companies generally can’t own a daily print newspaper and a TV or radio station in the same community, and there are also restrictions on holding multiple TV and radio stations. Chairman Pai wants to eliminate these rules, though the FCC would retain some limits on the radio and TV stations a single entity could hold in the same area. Another rule allows the acquisition of two TV stations only if at least eight independently owned competitors also operate in the area. Mr. Pai would eliminate this “eight-voices test” and weigh other broadcasting expansions case by case.
The FCC created ownership restrictions to ensure no single entity dominates the news. But the rules were written when newspapers were thriving and there were only a handful of TV channels. In the Digital Age, media competition has never been more intense…
Mr. Pai’s critics fret about local-media consolidation, but the alternative may be its extinction. The FCC’s archaic ownership rules have cut off bleeding local newspapers from would-be investors…
The FCC’s research shows that cross-owned TV stations provide more local news than their non-cross-owned counterparts.
The States
CT Mirror: Tucked in budget: Shorter leash on election watchdogs
By Mark Pazniokas
Connecticut’s legislators are using the bipartisan budget deal struck last week to do what they could not during the regular session: Require the State Elections Enforcement Commission to dismiss complaints against candidates, including lawmakers, that are not resolved in one year.
At the same time, the legislators placed a provision in the budget that more than doubles the maximum campaign contribution they can accept to qualify for public financing under the Citizens’ Election Program from $100 to $250, a change likely to ease their access to public dollars for their campaigns.
Just for Fun
The Onion: Startling Report Finds Evidence Democrats May Have Attempted To Influence 2016 Election
Revealing that newly discovered ads and online articles could have been part of a coordinated campaign, a startling new report released Friday found evidence that Democrats may have attempted to influence the 2016 presidential election. “Although it’s unclear if the efforts had any impact, it seems plausible that a loosely connected series of social media posts and grassroots word-of-mouth campaigns about the 2016 election could have originated in the Democratic Party,” said report author Michelle Lipkin, citing several clandestine pro-Clinton ad buys on Facebook and a small-scale, mostly ineffectual anti-Trump research endeavor that was indirectly traced back to several DNC donors. “It’s shocking in the least to discover the DNC dropped hundreds of thousands of dollars to shape the American democratic process; however, we are confident this hidden attempt at influencing the election had little to no effect on the final vote totals.” Lipkin also warned it was entirely possible that the Democrats might attempt to interfere in the 2020 election as well.
