RNLA member Mark Meuser is running for Secretary of State in California, but Facebook has twice refused to verify his campaign's account. Under Facebook's new advertising policy, this prevents Mr. Meuser's campaign account from advertising on Facebook:
Facebook has banned me from advertising with them because I do not have a verified page. Let’s forget the fact that I twice tried to verify my page but Facebook denied my verification for reasons that were completely made up. (Remember that I am a lawyer and I read the reason they were denying me and the reasons they gave was completely fictitious because I had already given them the info they requested.)
Sounds to me like Facebook would like an unfair competition lawsuit being brought against them for changing their rules to affect a campaign that only has one week to the election. I understand that I am not the only campaign this is affecting. What is funny is that this happened on the day I was reading a book written by a leftist who is complaining about the Russian Facebook advertising. I guess Facebook reacted so swiftly that they forgot they were silencing valid campaign spending.
Mr. Meuser identifies the crux of the problem with social media's overreaction to claims of Russian interference in the 2016 election through online advertisements. In their efforts to restrict foreign agents, foreign bots, and other bad actors, social media companies are restricting the speech of Americans as well. Consider the expansiveness of Facebook's new advertisement requirements:
Facebook is now enforcing its new policies for political and issue-related ads. Announced last month, the new rules require all advertisers running political or issue ads on the platform to verify their identity and location. US election and issue ads will have to be clearly labeled and will include “Paid for” information to identify the person or organization behind the ad.
Instead of using a definition of political recognized by the FEC, the IRS, or the legal community, Facebook is broadly defining political to include genuine issue ads. Organizations from the Sierra Club to The Heritage Foundation will have to follow Facebook's rules for "political" ads. As a private company, the First Amendment does not prevent Facebook from placing restrictions on certain kinds of speech. But if Facebook is inconsistently and unequally verifying political campaigns and thereby preventing them from advertising, as it did with Mark Meuser's campaign, it is wading into murky legal waters and opening itself to further public backlash.
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.
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.
RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about how Democratic FEC Commissioner Ellen Weintraub, like other Democrats and liberals, is using the alleged interference of Russia in last year's election as an excuse to regulate political speech. Mr. Warrington explained how Commissioner Weintraub's statements in a recent FEC meeting showed her political savvy and intent to regulate internet speech:
Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent. Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal. She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet.
That was a big mistake, substantively and politically. . . . Weintraub is more slippery than Ravel. Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else. For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application. That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer. . . . But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions. . . .
Unfortunately, while foreign influence is the excuse for the calls for increased regulation, the speech that will actually be regulated is political speech by American citizens:
Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads. Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical. Foreign paid ads already are prohibited by law. Adding a disclaimer requirement for ads that already are illegal would not be effective. Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web.
Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online. YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.
Mr. Warrington concluded by pointing out that if the result of any foreign advertisements is a restriction of free speech, the Russians would be pleased. If we truly want to prevent foreign powers and actors from improper influence in our elections, we need to zealously protect free speech.
