Today, the RNLA submitted a comment to the Federal Election Commission on its proposed rule making on Internet advertisement disclaimers:
An important, but often overlooked, part of open, fair, and honest elections is ensuring that the political
discourse surrounding elections is free and not subject to over-regulation by the government or the
political party currently in power. If voices in the political debate are suppressed through regulation,
then voters go to the polls without being truly informed.
The First Amendment to the Constitution protects against abridgement of the freedom of speech by the
government. Core political speech is subject to the highest protection under the Constitution, as the
Supreme Court described in Buckley v. Valeo: “Discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the system of government established by our
Constitution. The First Amendment affords the broadest protection to such political expression in order
‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes
desired by the people.’” This broad protection includes “discussion of candidates” and the
“constitutional guarantee has its fullest and most urgent application precisely to the conduct of
campaigns for political office.”
As the public discourse has increasingly shifted to the Internet, political advertising has shifted as well,
prompting the Federal Election Commission (FEC) to consider how to adapt its regulations to new and
constantly changing forms of advertisement. Many of the regulations regarding disclaimers and
disclosure that were designed for radio, print, and television advertisements are simply impossible to
place in a small or short Internet advertisement or, if practicable, would obscure the entire message of
the advertisement. The RNLA applauds the FEC for taking a cautious approach and seeking public comment on this important issue to ensure that the FEC’s disclosure goals are met without unduly
restricting the rights of the speakers in political advertisements on the Internet.
A realistic approach to Internet advertisement disclaimers needs to recognize both the opportunities and
the limitations inherent in Internet advertisement technology and the constantly changing nature of the
medium. The regulations must be clear and flexible enough to adapt to future technological
developments and changes.
The RNLA joined other conservative organizations in urging the FEC to take a reasonable, flexible, and clear approach to Internet political advertisements that would not suppress political speakers' right to disseminate their messages online and would adapt with constantly changing technology.
The Institute for Free Speech analyzed the proposal in detail, noting how the FEC's disclaimer regulations are not suited to modern means of advertisement and thereby burden speakers (footnotes omitted):
Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective.
These burdens are not hypothetical. Advertisements are getting shorter, but the disclaimer requirements stay the same. Fifteen-second advertisements are an industry standard, and six-second advertisements loom on the horizon. The short run-times forces the speaker to spend more time disclaiming and less time getting their message out. One congressional candidate’s fifteen-second advertisement was cut in half by the required disclaimers. Even those who have more experience running political communications cannot get the disclaimers down to a manageable level. AFT Solidarity produced a fifteen-second video advertisement, where the spoken and visual disclaimers required a third of the advertisement’s run time. Political speakers are already using new platforms, such as Snapchat, that carry strict limitations. For example, New Day for America ran an advertisement on Snapchat featuring Governor John Kasich, and another Snapchat advertisement supported Senator Rand Paul’s view on tax cuts. These are but the start of the new trend in shorter advertisement times on new platforms.
The fact that the FEC has taken several opportunities to seek public comment and carefully consider any proposals on Internet advertisement disclaimers is a testimony to constant vigilance by current FEC commissioners Caroline Hunter and Matthew Petersen, and many former Republican FEC commissioners, to fight against the Democrats' headlong rush to regulate Internet speech.
The RNLA is pleased to announce that Federal Communications Commission Chairman Ajit Pai will speak at the National Policy Conference next Friday.
Chairman Pai joined the FCC as a Commissioner in 2012 and was designated as Chairman by President Trump in January 2017. He has been a leader in the effort to restore the rule of law to federal communications regulation.
Last November, Chairman Pai gave remarks explaining the "Restoring Internet Freedom" order, which undid the FCC's unprecedented overreach in 2015 that created the so-called "net neutrality" policy:
First: what will the plan do? When you cut through the legal terms and technical jargon, it’s very simple. The plan to restore Internet freedom will bring back the same legal framework that was governing the Internet three years ago today and that has governed the Internet for most of its existence. . . . Until 2015, the FCC treated high-speed Internet access as a lightly-regulated “information service” under Title I of the Communications Act. A few years ago, the Obama Administration instructed the FCC to change course. And it did, on a party-line vote in 2015; it classified Internet access as a heavily-regulated “telecommunications service” under Title II of the Communications Act. If the plan is adopted on December 14, we’ll simply reverse the FCC’s 2015 decision and go back to the pre-2015 Title I framework. . . .
Much of the problem stems from the vague Internet conduct standard that the Commission adopted in 2015—a standard that I’m proposing to repeal. Under this standard, the FCC didn’t say specifically what conduct was prohibited. Instead, it gave itself a roving mandate to second-guess new service offerings, new features, and new business models. Understandably, businesses asked for clarity on how this standard would be applied. My predecessor’s answer, and I quote: “We don’t know, we’ll have to see where things go.” That’s the very definition of regulatory uncertainty. . . .
Many critics don’t seem to understand that we are moving from heavy-handed regulation to lighttouch regulation, not a completely hands-off approach. We aren’t giving anybody a free pass. We are simply shifting from one-size-fits-all pre-emptive regulation to targeted enforcement based on actual market failure or anticompetitive conduct. . . . By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer. . . .
This reminds me of another point, one that’s been brought home to me the past few days. This debate needs, our culture needs, a more informed discussion about public policy. We need quality information, not hysteria, because hysteria takes us to unpleasant, if not dangerous places. We can disagree on policy. But we shouldn’t demonize, especially when all of us share the same goal of a free and open Internet. . . . So when you get past the wild accusations, fearmongering, and hysteria, here’s the boring bottom line: the plan to restore Internet freedom would return us to the light touch, market-based approach under which the Internet thrived.
We are grateful to Chairman Pai for his leadership, his commitment to the rule of law, and his steadfast support for freedom from regulatory overreach in the face of harsh and violent criticism. We are honored for to address the RNLA next Friday, and we invite you to join us.
Facebook CEO Mark Zuckerberg testified before a joint hearing of the U.S. Senate Committees on the Judiciary and on Commerce, Science, and Transportation today, and he will testify before the House Committee on Energy and Commerce tomorrow. With his usual acuity, Senator Ted Cruz highlighted some of the key problems with liberal social media companies' treatment of conservatives during his questioning (1:46:32 to 1:52:14):
. . . Sen. Cruz: Well, Mr. Zuckerberg, I will say there are a great many Americans who I think are deeply concerned that Facebook and other tech companies are engaged in a pervasive pattern of bias and political censorship. There have been numerous instances with Facebook. In May of 2016 Gizmodo reported that Facebook had purposely and routinely suppressed conservative stories from trending news, including stories about CPAC, including stories about Mitt Romney, including stories about the Lois Lerner IRS scandal, including stories about Glenn Beck. In addition to that, Facebook has initially shut down the Chick-fil-A appreciation day page, has blocked a post of a Fox News reporter, has blocked over two dozen Catholic pages, and most recently, blocked Trump supporter Diamond and Silk's page with 1.2 million Facebook followers after determining their content and brand were "unsafe to the community." To a great many Americans, that appears to be a pervasive pattern of political bias. Do you agree with that assessment?
Zuckerberg: Senator, let me say a few things about this. First, I understand where that concern is coming from, because Facebook and the tech industry are located in Silicon Valley, which is an extremely left-leaning place. This is actually a concern that I have and that I have tried to root out in the company, is making sure that we don't have any bias in the work that we do, and I think it is a fair concern that people would at least wonder about this.
Sen. Cruz: Let me ask this question. Are you aware of any ad or page that has been taken down from Planned Parenthood?
Zuckerberg: Senator, I'm not, but let me just...
Sen. Cruz: How about MoveOn.org?
Zuckerberg: I'm not specifically aware of those...
Sen. Cruz: How about any Democratic candidate for office?
Zuckerberg: I'm not specifically aware; I'm not sure.
Sen. Cruz: In your testimony, you say that you have 15-20,000 people working on security and content review. Do you know the political orientation of those 15-20,000 people engaged in content review.
Zuckerberg: No, Senator, we do not generally ask people about their political orientation when they're joining the company.
. . .
Sen. Cruz: Do you know of those 15-20,000 people engaged in content review, how many, if any, have supported financially a Republican candidate for office?
Zuckerberg: Senator, I do not know that.
Sen. Cruz: Your testimony says, "It is not enough that we just connect people. We have to make those connections positive." It says, "We have to make sure people aren't using their voice to hurt people or spread misinformation. We have a responsibility not just to build tools but to make sure those tools are used for good." Mr. Zuckerberg, do you feel it's your responsibility to assess users whether they are good and positive connections or ones those 15-20,000 people deem unacceptable or deplorable?
. . .
Zuckerberg: Senator, I think there are a number of things that we would all agree are clearly bad. Foreign interference in our elections, terrorism, self-harm. Those are things...
Sen. Cruz: What about censorship?
Zuckerberg: Ah, well, I think that you would probably agree that we should remove terrorist propaganda from the service. So that, I agree, I think is clearly bad activity that we want to get down and we're generally proud of how well we do with that. What I can say, and I do want to get this in before the end here, is that I am very committed to making sure Facebook is a platform for all ideas. That is a very important founding principle of what we do. We're proud of the discourse and the different ideas that people can share on the service, and that is something that, as long as I'm running the company, I'm going to be committed to making sure is the case.
As a practical matter, no matter what Facebook's big picture commitments are, Silicon Valley liberals are making the operational decisions about which posts, pages, and advertisements violate Facebook's terms of use. To his credit, Zuckerberg recognizes this problem, but it does not seem like enough "conservative sensitivity training" has been done. Facebook blocked the following ad from Republican state senate candidate Aric Nesbitt in Michigan for being "shocking, disrespectful or sensational content, including ads that depict violence or threats of violence":
“I’m proud to announce my candidacy for State Senate. Lansing needs conservative, West Michigan values, and as our next State Senator, I will work to strengthen our economy, limit government, lower our auto insurance rates, balance the budget, stop sanctuary cities, pay down government debt and be a Pro-Life, Pro-Second Amendment leader for the people. Find out more at www.VoteNesbitt.com.”
If that's the content that Facebook deems inappropriate, virtually all speech from conservatives and Republicans will violate the site's policies. And as we learned in the oral arguments for Minnesota Voters Alliance v. Mansky, even a liberal lawyer arguing before the Supreme Court automatically thinks that conservative messages are "political" while liberal messages are neutral. Liberals are proficient at groupthink. Even if the liberal Facebook content moderators have good intentions and genuinely believe they are evaluating content neutrally, they are going to deem speech to be "shocking" or "disrespectful" simply for containing traditional, mainstream conservative principles.
Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":
The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.
Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies. The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).
Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules. All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.
The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks. But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.
Yesterday, Attorney General Jeff Sessions announced the creation of a new cybersecurity task force at the Department of Justice:
Attorney General Jeff Sessions has ordered the creation of the Justice Department’s Cyber-Digital Task Force, which will canvass the many ways that the Department is combatting the global cyber threat, and will also identify how federal law enforcement can more effectively accomplish its mission in this vital and evolving area.
“The Internet has given us amazing new tools that help us work, communicate, and participate in our economy, but these tools can also be exploited by criminals, terrorists, and enemy governments,” Attorney General Sessions said. “At the Department of Justice, we take these threats seriously. That is why today I am ordering the creation of a Cyber-Digital Task Force to advise me on the most effective ways that this Department can confront these threats and keep the American people safe.”
The Task Force will be chaired by a senior Department official appointed by the Deputy Attorney General [Rod Rosenstein] and will consist of representatives from the Department’s Criminal Division, the National Security Division, the United States Attorney’s Office community, the Office of Legal Policy, the Office of Privacy and Civil Liberties, the Office of the Chief Information Officer, the ATF, FBI, DEA, and the U.S. Marshals Service. . . . The Task Force will be responsible for issuing a report to the Attorney General by the end of June.
The Attorney General has asked the Task Force to prioritize its study of efforts to interfere with our elections; efforts to interfere with our critical infrastructure; the use of the Internet to spread violent ideologies and to recruit followers; the mass theft of corporate, governmental, and private information; the use of technology to avoid or frustrate law enforcement; and the mass exploitation of computers and other digital devices to attack American citizens and businesses. The scope of the Task Force’s report is not limited to these categories.
Attorney General Sessions realizes that, despite the media attention on alleged Russian meddling in the 2016 election (and indeed, almost every story on this task force has a headline about its study of efforts to interfere with our elections), the cybersecurity threat America faces from bad actors is much broader. As he says in the memorandum creating the task force, after noting the pervasiveness of technology in the modern world:
Indeed, the scale of this cyber threat, and the range of actors that use cyber attacks and intrusions to achieve their objectives, have grown in alarming ways. . . . Most of the pressing cyber threats that our nation faces transcend easy categorization.
We look forward to seeing this task force's report. Unlike many efforts championed by the liberals to respond to allegations of Russian interference in the 2016 election, it will provide guidance and potential solutions that are helpful to state and local election officials without usurping their important role in election administration, will complement the important cybersecurity work being done by election officials, will not create a new permanent federal bureaucracy, and will not limit law-abiding Americans' rights on the Internet.
Yesterday was Republican Commissioner Lee Goodman's last day on the Federal Election Commission. RNLA Vice President for Election Education David Warrington described some of his accomplishments, fighting to protect First Amendment rights and the rule of law, on the FEC in The Hill:
The left often charges that the FEC is a “dysfunctional” agency. Goodman, however, refuted the “dysfunction” charge using the FEC’s own data, showing that the agency acted in a bipartisan fashion on 93 percent of all votes taken. Goodman exposed what the left really meant by “dysfunction” at the FEC — failing to agree with the Democrats. To the dismay of Democrats, Goodman and his fellow Republican commissioners refused to ignore existing law and change the rules governing Americans’ political speech. . . .
Goodman was committed to keeping speech on the internet free of new regulation. Despite what you might read in the news, paid advertisements on the internet are subject to the full range of FEC regulations, just like newspaper or television ads. Since 2006, Internet activities posted for free — blog posts, Facebook posts, tweets, YouTube videos, etc. — have been exempt from FEC regulations. Yet the FEC Democrats would like nothing more than to regulate these everyday activities and have been creatively trying to find ways around the longstanding “Internet Exemption.” Standing in their way have been Lee Goodman and the other Republican commissioners. . . .
As the Democrats have used alleged Russian interference in the 2016 election as an excuse to regulate social media, Lee Goodman has persistently pointed out their errors: foreign paid ads are already illegal and it is impractical to assume the FEC could police disclaimers on ads placed on foreign servers, so the real burden of any social media regulation would fall on American citizens exercising their First Amendment rights. . . .
Democrats are eager to use campaign finance laws as a tool to intimidate and suppress the speech of their political opponents. Lee Goodman, defender of the First Amendment stood in their way and thereby protected the rights of all Americans — from their right not to be hauled before his agency for a tweet, to the right to a press free from government interference, to the right to fair notice of what activity is regulated or prohibited. Thank you, Commissioner Goodman.
We agree - thank you, Mr. Goodman, for your commitment to the rule of law and the Constitution and protecting the rights of all Americans during your service on the FEC.
In their latest efforts to quietly change the campaign finance rules for internet communications ex post, the Democrats on the Federal Election Commission voted last month to dismiss a complaint against a non-profit organization, Illinois Family Action, for tweeting a YouTube video from a congressional candidate. They voted to dismiss the complaint not because communicating for free on the internet has been exempt from federal campaign finance law since 2006 but because the amount spent on the tweet (in staff time, electricity, etc.) was de minimis. It certainly was de minimis, as a tweet takes less than a minute to draft and send, but the fact that the Democrats would vote for, and the General Counsel's office would draft, a statement of facts and law that changed the rules applying to the tweet after the fact is deeply disturbing.
The Republican FEC commissioners' Statement of Reasons outlined multiple legal rules that render a free tweet exempt from campaign finance regulation under federal law:
Consequently, [the Democratic commissioners'] approach would create an internal conflict in the Commission's rules, subjecting to regulation any unsuspecting person who uses a free Twitter account to send a link to a campaign video. . . . Accordingly, by the basic rules of logic, because IFA's tweet is exempt from the definition of public communication under section 109.21 and exempt from the definition of contribution and expenditure under sections 100.94 and 100.155, the tweet cannot be considered a contribution under section 109.23.
They concluded by noting how the Democratic commissioners' position would violate fundamental principles of fair notice (footnotes omitted):
In sum, considering the statutory, regulatory, and policy backdrop set forth above, we
could not interpret our regulations to conclude that IFA made a contribution to the Kinzler
Committee merely by tweeting a link to a Kinzler Committee YouTube video. Our colleagues
disagreed with our conclusion that IFA's tweet is exempt from regulation and instead voted for a
draft Factual and Legal Analysis that implied IFA's tweet might constitute an in-kind
contribution, but dismissed the violation merely because the tweet's value was likely de
minimis. We fundamentally disagree with our colleagues' legal interpretation because, in
contravention of the Commission's 2006 Internet Exemption, it would erroneously leave free
postings on the Internet subject to Commission regulation based on case-by-case judgments of
what does or does not constitute de minimis value.
Furthermore, when the Commission adopted the Internet Exemption in 2006, it largely
freed independent political discourse on the Internet from the threat of federal investigation and
punishment. The Commission notified the public through that rulemaking of the comprehensive
scope of the freedom it was protecting. The public has the right to rely on the Commission's
clear statements published in the Federal Register as to how it will interpret and apply its
regulations and the right to clear rules regulating First Amendment activity. The need for
clarity and consistency is even more acute in the Commission's enforcement process, when the
agency relies on its interpretation of its regulations to punish First Amendment activity.
In our view, dismissing this matter as an exercise of our prosecutorial discretion rather
than as a matter of law in an effort to preserve the Commission's claim to legal authority to
regulate and punish certain online political activity under a strained (and previously
unacknowledged) regulatory theory would chill clearly protected political speech, raise serious
fair notice concems, and ultimately prove untenable. For these reasons, we voted to find no
reason to believe that IFA made a prohibited corporate contribution when it tweeted a hyperlink
to a federal candidate's campaign video.
We are grateful for Commissioners Caroline Hunter, Lee Goodman, and Matthew Petersen for standing up for the rule of law and the First Amendment and not allowing the Democratic commissioners to quietly change the law regulating Americans' everyday conduct without proper procedures and notice.
Last spring, the RNLA was thrilled to have Federal Election Commissioner (FEC) Lee Goodman speak on a panel at the 2017 National Policy Conference at the National Press Club. The panel, titled, "Election Law Update: Vote Fraud Commission and Campaign Finance" featured Commissioner Goodman, Don Palmer, formerly of the Virginia Board of Elections, and Hans von Spakovsky, of the Heritage foundation.
Commissioner Goodman began his presentation by noting the importance of the First Amendment within the FEC:
"This agency was created to regulate in an area permeated in everything it does by the solemn First Amendment rights of American citizens to associate and speak. So, if I am to be criticized honestly for a restrained approach, my critics should at least acknowledge the profound importance of the First Amendment and what I am trying to do when I am trying to strike a balance between regulation and First Amendment freedoms."
He also went on to discuss the three major First Amendment issues facing the Commission currently. The first of the First Amendment issues facing the FEC is free speech and the the rise of the internet. In 2006, the Commission adopted a rule that exempted the internet from their regulation for those individuals and entities using personal, at-home-computers (with and exception being paying a fee on a third party's website, where the Commission would intervene and regulate). He notes:
"Fast forward to the past two or three years and my Democratic colleagues at the Commission have begun to rethink the breadth of that freedom on the internet. And in case after case we are splitting our votes 3-3 with the three Republicans observing the exemption - a robust interpretation of the exemption under the 2006 rule-making - and our colleagues voting to find nooks and crannies of regulation on an otherwise broad exemption."
The second point Commissioner Goodman points a lack of sensitivity of free press rights of press publishers. He pointed to the example to the Fox News debate in 2016 where Fox News added an undercard debate of lower-polling Presidential candidates. A suit was filed (by a candidate that failed to make either debate) claiming that Fox News made "unlawful corporate contributions to the 17 candidates by changing its criteria." Goodman states of his colleagues:
"The office of General Counsel at the FEC recommended a finding that Fox News made illegal corporate contributions. Three Democrat Commissioners concluded that Fox News had violated the law. Two of my Democrat colleagues voted to punish Fox News, to impose civil penalties on Fox News for violating the law, despite the existence of a press exemption that exempts the press from our regulation altogether - an exemption that has been there since 1974."
The third and final point that Commissioner Goodman makes are associational privacy or what is known as the "dark money" debate. He states:
"If you read popular press, you'll believe that our nation's federal elections are a wash in dark money flooding the airwaves. Dark money is spending by groups that do not have the major purpose of being a political committee.
We are engaged in an ongoing debate over the of where your associational privacy ends and our regulatory jurisdiction begins. If my Democratic colleagues have their way, every little political thing you do ... will evidence your political purposes broadly defined and you will be swept into the federal jurisdiction of the federal government and you will surrender your associational privacy."
The RNLA thanks Commissioner Goodman for leading the fight to protect our First Amendment. On Wednesday, January 17, the RNLA D.C. Young Lawyers Chapter will be hosting an exclusive reception featuring Commissioner Goodman. To RSVP to this event, please click here.
To view the video of Commissioner Goodman's panel from the 2017 National Policy Conference in its entirety, please click here.
