Social media companies shouldn’t censor campaign ads from legitimate political candidates

When President Trump’s campaign recently created an ad about Joe Biden’s involvement in Ukraine, CNN rejected the ad as “demonstrably false.” But when Joe Biden asked Facebook to remove it, the social media company refused saying that it did not apply its content rules to ads or other statements from political candidates.

In an attempt to discredit this policy, Elizabeth Warren bought an ad on Facebook falsely claiming that Mark Zuckerberg has endorsed President Donald Trump.  Warren’s ad also says, “If Trump tries to lie in a TV ad, most networks will refuse to air it.”

A recent New York Times story repeated this false and misleading claim about campaign advertising, asserting that Facebook “has allowed Mr. Trump’s campaign to show ads that traditional TV networks have declined to air.”

A little fact checking is in order

The only network that initially declined to air President Trump’s ad is CNN. The ad has appeared on the traditional broadcast networks NBC, ABC, and CBS, on the cable networks Fox News, Investigation Discovery, MSNBC, and Bravo and on social media outlets Google/YouTube and Twitter as well as Facebook.  ComcastNBC initially ran the ad and then pulled the ad from its cable properties after its requests for changes were denied.

The reason that all the traditional broadcast networks have aired the ad is that they are required to do so by Federal law.  

PolitiFact looked into Warren’s claim that “most networks will refuse to air” false ads and found it to be mostly false, saying that “Federal law requires broadcast networks to run political candidate ads without vetting them for lies or falsehoods. The same law does not apply to cable networks, but those networks also generally aim to run such ads.” 

CNN’s refusal to air a campaign ad from a candidate for Federal office is the outlier, not Facebook’s policy of running it uncensored.

Facebook is facing a drumbeat of pressure to censor political ads

Damian Collins, chair of the UK House of Commons’ digital, culture, media and sport select committee, recently described Facebook’s policy of airing political ads uncensored as “concerning” and a “heavy constraint” on the social media company’s efforts to fight disinformation during election campaigns.

Joe Biden’s spokesperson has said, “If Facebook is truly committed to protecting the integrity of our elections, they would immediately take down Trump’s ads that attempt to gaslight the American people.”

Elizabeth Warren agrees, saying: “What Zuckerberg has done is given Donald Trump free rein to lie on his platform — and then to pay Facebook gobs of money to push out their lies to American voters.”  In a tweet, she addressed the Facebook CEO directly saying “It’s up to you whether you take money to promote lies. You can be in the disinformation-for-profit business, or you can hold yourself to some standards.”

There’s an irony in Senator Warren asking social media companies to censor false campaign ads

If her policy against airing false political ads had applied to her own ad, it wouldn’t have appeared anywhere, not because of the deliberate falsehood it contained about Mark Zuckerberg, but because of its unintentional misrepresentation of the nation’s broadcast campaign ad rules. 

There’s a larger irony in view of Senator Warren’s perfectly legitimate concerns about Facebook’s excessive economic, cultural and political power.   She has been a leader in proposing concrete ideas to “fix a corrupt system that lets giant companies like Facebook engage in illegal anticompetitive practices, stomp on consumer privacy rights, and repeatedly fumble their responsibility to protect our democracy.”

Why would Senator Warren want such a media bottleneck to review candidate speech for accuracy?  Surely the greater danger is that the dominant social media company might act to further its own economic interests through selecting which candidate ads to favor.  And given her initiative to dismantle Facebook, you would think she would be the last candidate encouraging Facebook to pick and choose among candidate ads according to its own perception of what is true and false.

Facebook largely got it right about political ads from candidates

Facebook has stood by its policy saying, “It is not our role to intervene when politicians speak.”  More pointedly, it added, “If Senator Warren wants to say things she knows to be untrue, we believe Facebook should not be in the position of censoring that speech.”

Facebook’s policy of not censoring candidate speech accurately reflects our common “fundamental belief in free expression and respect for the democratic process.”

At a recent hearing, Representative Alexandria Ocasio-Cortez asked Facebook CEO Mark Zuckerberg whether the social media company would run an ad targeted to blacks that urged them to vote on the wrong date.  Zuckerberg said no, when his consistent answer should have been yes, and then to add that Facebook would surround the false ad with correct election information.

Unfortunately, Facebook’s policy goes well beyond allowing candidates to speak directly to their audience.   Its decision to allow uncensored speech applies to a vague and undefined group of “politicians,” not just to candidates for Federal office.  And it applies to anything they might say on any topic, not just to their efforts to run for office.  This is far too broad. David Duke is by any meaning of the term a political figure.  Facebook’s policy would give him license to spread his vile white supremacist propaganda without any check whatsoever.  Facebook should narrow its no-censorship policy if it truly aiming to respect the democratic process.

Extend the broadcasting rules to all media

The better course is to extend to all media companies the rules requiring broadcasters to provide reasonable access for campaign ads to candidates for Federal office and to refrain from censorship when they do so.

It is crucial to emphasize that these broadcasting rules are very limited in scope. They apply only to ads from legally qualified candidates for Federal office or to their authorized campaign committees, not to state or local contests. A “legally qualified candidate” is defined narrowly as someone who has announced an intention to run for office, is qualified to hold the office and is eligible to be on the ballot.

Moreover, the no-censorship rule does not apply to ads on behalf of candidates from other groups such as political action committees. It also doesn’t apply to issue ads.  

These rules were put in place out of fear that broadcasters would abuse their powerful media position to favor the candidate of their choice, and thereby interfere in the democratic machinery of choosing the leaders of our government.  In the new media world, much political advertising has moved online and to cable. But these media bottlenecks also have the ability and incentive to abuse their position to enhance their own economic and political interest through censoring campaign ads they don’t like.  

Congress needs to act to put this no-censorship policy into place for all electronic media, broadcasting, cable and social media.  The details of how a reasonable access and no-censorship regime would work for Internet companies are not self-evident.  Adjustments to account for the differences between broadcasting and digital media need to be proposed and debated.  But this is a task for a regulatory agency not for Congressional resolution.  Congress can empower the Federal Communications Commission to hold hearings and propose detailed rules to implement the general policy.  It could be done as an amendment to the Honest Ads Act, which seeks to apply the broadcast sponsorship identification rules for campaign ads to digital platforms.

The bad news is that our current jurisprudence emphasizes the rights of media companies to control their own content and this renders this no-censorship proposal vulnerable to First Amendment constitutional challenge.  This risk of judicial scrutiny hasn’t stopped Congressional proponents from pushing for the disclosure requirements in the Honest Ads Act, which admittedly have a greater likelihood of withstanding a constitutional challenge. And it shouldn’t stop Congress from moving ahead with a measure to vindicate the rights of candidates to speak to their audience and the rights of viewers to receive unfiltered messages from candidates.