Testimony to House Oversight Committee on Threat to Free Speech from Online Ad Regulation

Yesterday, Allen Dickerson of the Center for Competitive Politics (as of today, now called the Institute for Free Speech) testified to the House Oversight and Government Reform Committee’s Subcommittee on Information Technology on the dangers posed to free speech by proposals to regulate internet advertisements (footnotes omitted):

It is not obvious that anything will be gained in exchange for these burdens on fundamental liberties. Whatever modest advances may be made in preventing foreign influence will be on the backs of regulated Americans, who will bear the overwhelming burden under any proposed campaign finance regulation. . . . [B]roadcast mass advertising is not a game for small grassroots speakers. . . . By contrast, Facebook or Google AdWords advertisements calling for named members of Congress to, say, repeal the Jones Act in the immediate aftermath of a devastating late September hurricane, are more likely to be engaging in those “issue discussions unwedded to the cause of a particular candidate” that are “vital and indispensable to a free society.” The Supreme Court is less likely to bless the regulation of that speech. . . .

Mr. Dickerson points out the current proposals are impractical and would expand the definition of electioneering communications to include genuine issue speech:

Unless Congress can assure itself that it is regulating electioneering, and not mere political discussion about issues of public interest, it ought to act with care. After all, as the Supreme Court noted in the landmark case of Mills v. Alabama, “[w]hatever differences may exist about the interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

In addition, there are practical concerns with merely cloning the electioneering communication standard applied to broadcast ads. What constitutes a communication reachable by 50,000 persons in the “relevant electorate?” Do the technical means exist to determine that answer without imposing insurmountable compliance costs? After all, basic economics dictates that such costs will be passed on to the consumer. And increasing compliance costs will crowd out precisely the small, grassroots speakers that are most vulnerable and rely most upon the Internet to disseminate their message. Conversely, removing the targeting requirement entirely will simply expand the scope of regulated communications, sweeping in discussions of key legislators, such as committee chairs, even where those conversations are not directed at constituents and are almost certainly not intended to affect electoral results.

In the end, Mr. Dickerson cautions against a broad regulatory approach that may or may not actually prevent foreign advertising (some of which already prohibited by law) but would certainly infringe on Americans' important rights of political speech online:

These concerns suggest caution. The Internet’s role as a conduit for grassroots speech and association is delicate, and too-easily crushed by overzealous or ill-considered restrictions. In particular, Congress should be wary of burdening an enormous swath of Americans’ grassroots political advocacy in the name of preventing, or attempting to prevent, relatively small foreign purchases. That concern is especially acute where such foreign meddling is already regulated under an unrelated statutory regime that does not burden Americans’ First Amendment liberties.

Mr. Dickerson's entire testimony is well worth reading.  A point that he makes throughout is worth remembering: the internet allows small, grassroots organizations and individuals to speak (i.e., advertise their message) in a way that is unprecedented.  If liberals are truly concerned about "dark money," the influence of the rich and powerful, and corporate speech drowning out the little person, as they claim they are, they will stay far away from regulations that restrict internet speech, as those regulations would disproportionately impact individuals' and small organizations' ability to disseminate their messages.