A Medium-Specific First Amendment Analysis on Compelled Campaign Finance Disclosure on the Internet

By Usoro, Millicent | Federal Communications Law Journal, May 2019 | Go to article overview

A Medium-Specific First Amendment Analysis on Compelled Campaign Finance Disclosure on the Internet


Usoro, Millicent, Federal Communications Law Journal


TABLE OF CONTENTS

I. Introduction                                                 301
II. Background                                                  303
    A. The Supreme Court Has Consistently Upheld
       the Constitutionality
       of Disclosure Requirements for Paid
       Political Advertising                                    303
    B. Citizens United and Its Progeny Have Upheld the
       Constitutionality of the Disclaimer and
       Disclosure Provisions of
       the BCRA                                                 305
    C. Federal Courts Have Been Wary of the FCC's Sponsorship
       Identification Requirements for Radio,
       Broadcast Television, and
       Cable, Particularly the "Reasonable Diligence" Duty      307
       1. Early Developments of FCC Sponsorship Identification
          Requirements                                          307
       2. Additional Disclosure Requirements, Yet a Lack of
          Enforcement                                           309
III. Examples of Medium-Specific Analyses                       310
    A. The First Amendment Effects of the
       Scarcity of Spectrum, the Role
       of Gatekeepers, and Editorial Discretion                 310
       1. Broadcast: Red Lion, Pacifica,
          and the Scarcity Rational                             310
       2. Cable and Print: Editorial
          Discretion as a Factor in a
          Medium-Specific Analysis                              312
IV. Constitutional Considerations for a Medium-Specific
    Analysis on Campaign Finance Disclosure for Online
    Political Ads                                               314
    A. Underlying Rationales in Medium-Specific
       Analyses as Applied to the Internet                      316
       1. Editorial Discretion and the
          Internet as a Conduit of Speech                       316
       2. The Potential Anticompetitive
          Effects of the Internet                               318
    B. Disclosure Requirements for Online
       Political Ads Would Survive
       Strict Scrutiny Under a Medium-Specific Analysis         320
       1. Preserving Electoral Integrity as a Compelling
          Government Interest                                   322
       2. Deference to National Security                        323
V. Conclusion                                                   324

I. INTRODUCTION

In the wake of growing public concern over Russian attempts to influence the 2016 presidential election, Senators Mark Warner, John McCain, and Amy Klobuchar introduced the Honest Ads Act (the "Act") on October 19, 2017. (1) The Act's primary goal is to "enhance transparency and accountability for online political advertisements by requiring those who purchase and publish such ads to disclose information about the advertisements to the public." (2) The Act would begin by closing cavernous regulatory loopholes regarding political advertising by extending "electioneering communications" and reporting requirements for political advertising to paid political ads on the Internet. (3) Online platforms, such as Facebook, Twitter, Google, and other social media sites would be responsible for making "reasonable efforts" to make sure political ads sold on these platforms were "not purchased by a foreign national." (4) Platforms would also be required to maintain a searchable database of political advertisements that were bought for over $500. (5)

Social media giants and online platforms were predictably slow to come to terms with their ancillary, yet fundamental, role in Russian meddling in the 2016 presidential election. Mark Zuckerberg's initial reaction to public concern over Facebook's role in spreading "fake news" was flippant, publicly stating that it is a "pretty crazy idea" that fake news on Facebook "influenced the election in any way." (6) Social media platforms and First Amendment advocates often raise freedom of speech and privacy concerns if there is momentum in Washington to impose regulations on the Internet. …

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