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Regulating fact from fiction: disinformation in political advertising


During Mark Zuckerberg’s Congressional hearing in October of that year, Congresswoman Alexandria Ocasio-Cortez (DN.Y.) asked the Facebook CEO if she could advertise on Facebook that “targets Republicans in primaries who say that they voted for the Green New Deal ”. The House of Representatives never voted on the resolution of which it is sponsoring. A company representative later confirmed to CNN that AOC’s proposed ad would likely be okay given that Facebook’s fact-checking policy does not extend to politicians.

The New York Times reported last month that Facebook was being pressured by political campaigns to continue its policy of not fact-checking political advertisements. So far, Facebook seems to have been keen to hold onto its position.

All of this adds to the list of complaints against the social networking site that has metastasized since the 2016 elections. But are the rules of fact-checking on Facebook any different than on cable TV?

Political advertising by politicians, by and large, does not have to be fact-checked like commercials for consumer goods do. And the recent news regarding Facebook’s practices in relation to advertising is important, not only because it highlights the role of digital platforms in election advertising, but also because it exposes the blatant loopholes in the regulation of political advertising in general.

The Federal Communications Commission (FCC) maintains rules for policy programming; These rules relate to the specifics of political advertising, such as disclosure of sponsorship. And the job of the Federal Trade Commission (FTC) is to regulate commercial advertising. The FTC protects consumers from false advertising by companies through its “Truth in Advertising” standard, but political campaigns (and politicians) have largely been exempted from advertising for the sake of freedom of expression.

Take, for example, the 1972 campaign of white racist JB Stoner, a top contender in the Georgia Senate race. During the race, cable networks broadcast Stoner advertisements riddled with racist tropes and once asked viewers to vote for the “white racist JB Stoner”. When the Atlanta NAACP and other groups protested the ad, the FCC ruled that refusing to air political ads would affect Stoner’s right to freedom of expression. In 1978 Stoner ran for governor of Georgia, produced similar advertisements, and again the FCC ruled in Stoner’s favor.

However, cable networks have developed standards for fact-checking political advertising over time. Just last month, CNN rejected two advertisements from President Trump’s re-election campaign because of inaccuracies. These ads were eventually published on Facebook and other digital platforms as part of a multi-million dollar ad purchase. In the October letter from Senator Mark Warner (D-Va.) To Mark Zuckerberg, he urged the Facebook CEO to “adhere to the same standards as other traditional media companies”.

But is that enough? The fact that networks and traditional media have developed norms doesn’t necessarily make their approach the right one. The spread of disinformation in the 2016 elections – especially via Facebook – showed that norms in traditional media are not being carried over to digital platforms. And problematic advertisements from the pre-digital era show that these standards are insufficient to protect consumers from overtly false information in political advertising.

With inaction at the federal level, states have taken state race policy into their own hands. As of 2014, 27 states prohibit misrepresentation in advertising, but courts have overturned laws in four of those states. Washington provides an example of what could happen in states considering laws about disinformation in political advertising and those that have already passed such regulations.

In 1998, for example, the Washington State Supreme Court overturned a 1984 law prohibiting sponsorship of political advertisements that “the person knows or reasonably should be wrong” on the grounds that the measure violated the First Amendment and that it had a “deterrent effect” on freedom of expression. In contrast, Judge Philip Talmadge said that the Supreme Court of Washington was “the first court in the history of the republic to declare the protection of the First Amendment to be calculated lies.”

In the ruling, the court suggested that the law could be upheld if it took into account defamatory false statements. In 1999, for example, the legislature changed the law to protect candidates from false reports “with actual malice”. In 2009 the court again overturned the law in the Rickert v Washington case. Two years later, lawmakers changed the law to include a detailed description of libel and defamation, and the law was passed with overwhelming support.

At the federal level, factual regulation in political advertising has made little progress. The Honest Ad Act, put forward by Senators Amy Klobuchar (D-Minn.), Mark Warner (D-Va.) And Lindsey Graham (RS.C.) inciting or contradicting messages to the public “through traditional media because of the public The nature of these media enables “the press, fact-checkers and political opponents” to see and respond to the advertisements and that these deterrents do not exist in digital media where they are targeted. Advertisement is the rule. The law argued, like Warner in his letter to Zuckerberg, that the norms that regulate traditional media must also be followed by digital platforms.

The Honest Ad Act specifically aims to incorporate digital platforms into the Federal Election Act of 1971 – an important step in keeping with technological advances since the law went into effect. The mere inclusion of internet media in the law is not enough, however, to protect voters from dishonest communications, as it does not include calls for truth-finding or political advertisements to verify the facts.

The Brennan Center recently drafted a law against misinformation in political advertising, advising that the “truth in advertising” standards that businesses must adhere to should also apply to election advertising. Should Congress target unregulated political advertising, as the Brennan Center suggests, the way forward could become extremely complicated – as Washington’s rocky experience shows.

Senator Warner and others have urged the digital media to adopt the “norms” that cable networks use when reviewing political advertisements. However, your efforts were not convincing enough for these platforms to implement such a process. The 2020 elections were already marked by false advertising campaigns on Facebook and there is no federal legislation that specifically targets disinformation in the election campaign.

Future regulation must go beyond the Honest Ad Act and follow the path some states have taken. Writing laws with specific calls for fact-checking in political advertising will be imperative to protect citizens and ensure the integrity of our political campaigns.


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