Political advertising is a form of election campaigning that allows candidates to get their message across directly to voters and influence political debate. By placing ads on different types of media, candidates can reach an audience that might otherwise not have been paying attention to the election and build awareness, highlight important issues and draw attention to their opponents' shortcomings.
Historically, the means of political advertising have been newspapers, direct mail, radio and television. In 2008, Barack Obama was one of the first candidates to use social media advertising in his campaign. That year, 2008, candidates spent a total of $22.25 million on online political advertising. Since then, online political advertising has exploded, with candidates spending $1.4 billion in 2016.
After the 2016 presidential election, the public realized how powerful and disruptive political advertising on social media can be. Brad Parscale, the Trump campaign's digital strategist, tweeted that their campaign on Facebook was "100x to 200x" more efficient than the Clinton campaign. The reason for this became clear after whistleblower Christopher Wylie revealed that the Trump campaign's data analysis team, Cambridge Analytica, "used unauthorized personally identifiable information in early 2014 to build a system that can profile individual US voters in order to identify them." targeting political advertising with personalized data”.
It was also revealed that some of the ads on social media weren't coming from candidates at all. A Senate Select Intelligence Committee report revealed that the Russian government spent about $100,000 on Facebook ads to disrupt the US presidential election. While this may seem like a paltry sum compared to the cost of a TV ad, the impact of these ads was enhanced by the fact that they aimed to divide fans on polarizing issues like gun control and race relations, and then targeted those who, on the are most vulnerable to these messages.
As a society, we are still grappling with the fallout from these revelations and trying to determine what sort of controls, if any, should be placed on social media platforms when it comes to political advertising. The debate was reignited in November 2019 when Facebook refused to remove a misleading anti-Biden advertisement published by President Donald Trump's reelection campaign. As the 2020 election approaches, we need to take a look at the policies social media platforms are implementing for political advertising and how this is affecting our democratic process.
First Amendment and political advertising
To understand the challenges of regulating political advertising on social media, it is helpful to review the history of political advertising in the United States and its regulation in other forms of media.
There is a long and rich history of candidates lying about their opponents in our country, beginning with Thomas Jefferson's campaign that claimed John Adams was taking the country to war with France.
Lying in political advertising is also perfectly legal. This comes as a surprise to some as commercial ads have restrictions preventing them from making false claims about products or competitors. For example, when Kentucky Fried Chicken tried to claim in 2004 that fried chicken could be part of an effective nutrition program, the Federal Trade Commission (FTC) penalized the company, requiring it to withdraw the commercials and submit all advertisements for FTC review by the next five Years.
The same is not true for someone who is running for political office and runs an ad making false claims about their opponent. Why? Because political advertising is considered political speech, and the First Amendment law protects political speech from all other types of speech. The government has more power to punish or censor commercial speech, but it has very little power to regulate political advertising. This is because voters have a right to uncensored information from candidates, which they can then evaluate for themselves before making their decisions at the ballot box.
Because no government agency can penalize a candidate for lying in an allegation, the only form of recourse for a victim of a false allegation is a defamation lawsuit.
For practical reasons, these lawsuits are rather rare. It is difficult for candidates for office to succeed in these lawsuits because public figures have a higher standard of defamation. Like private prosecutors, a public figure must prove that false allegations of fact have been made about them that have damaged their reputation. But beyond that, they have to prove that the statements were made with "actual malice," meaning those who made the allegation either knew it was false or didn't care if it was true or false . While many candidates can overcome these hurdles and win their lawsuit, for many it may not be worth their time and money, especially when in the midst of running a campaign.
But suppose a candidate wants to sue for defamation - who can he sue? Of course, they can track the person or organization that created and paid for the ad, but is the media company that actually circulated the ad to the public liable? Different rules apply to different communication media.
Newspapers are considered publishers and are liable for the advertisements they place. A corollary to this is that they are completely free to choose the ads they choose to run and are not obligated to run ads they don't want to run -- in fact, it's their First Amendment right to make their own choices about it what they print .
In sharp contrast, radio and television stations cannot choose which political commercials to air, at least not for candidates for the same office. They can either choose not to run political ads at all, or they can choose to run political ads to any candidates who choose to do so. Why? Because the airwaves that broadcasters use is a scarce resource. There can only be a limited number of channels in the spectrum and the resulting scarcity creates the risk that some viewpoints may never be broadcast. Because of this threat, the Federal Communications Commission is empowered to encumber broadcasters' First Amendment rights to ensure that the public is provided with a variety of ideas and information. For this reason, the broadcasters are not liable for the advertising they place.
Cable TV channels, on the other hand, are not subject to the same regulations as broadcast networks. They don't have the same unique characteristics as broadcast channels - there's no limit to their number - which means they're free to decide which political ads to run and which not to. As a result, they are also liable for any false ads that are served and can be sued for defamation.
Political ads on social media
As the latest communication medium to enter the fray, social media has several unique qualities that set it apart from the media before it. As with newspapers and cable TV stations, there is virtually no limit to the number of social media platforms. But in practice, there are a few big platforms dominating the landscape — Facebook (and its WhatsApp and Instagram subsidiaries), Google (and its YouTube subsidiaries), and Twitter.
Another quality they share with newspapers and cable TV stations is that they are not required to run every political ad they receive. Contrary to popular belief, social media platforms are not required to comply with the First Amendment. They're private companies, free to set their own content policies, and unlike broadcasters, they don't have to offer ad slots to all candidates.
But unlike newspapers and TV stations, social media platforms are not considered publishers at all. They are considered an internet service provider and under Section 230 of the Communications Decency Act are not liable for what other people post on them. They cannot be sued for allowing inaccurate content on their sites or for running inaccurate political ads.
The final, and perhaps most important, difference between social media platforms and the media before them is that they allow for a practice called "microtargeting." Microtargeting can be broadly defined as "a marketing strategy that uses people's data - about what they like, who they are connected to, what their demographics are, what they have bought and more - to target them for content in to subdivide into small groups.” This practice has been particularly controversial in recent years in the case of targeted political advertising.
Each of the major platforms has their own policies when it comes to what political ads they run and what type of targeting they allow for them.
Social media guidelines on misinformation in political ads
In October 2019, President Trump's re-election campaign released a 30-second video ad that accused former Vice President Joe Biden of promising Ukrainian funds to fire a prosecutor investigating a company with ties to Biden's son, Hunter Biden. The Biden campaign contradicted this ad and called on various media outlets and platforms to remove it. Responses to this query shed light on the different ways companies approach misinformation in political advertising.
Some social media platforms like Twitter, TikTok, LinkedIn, and Pinterest have sidestepped the issue by banning political ads altogether — but it's worth noting that political ads haven't been a prominent feature on any of these platforms. The big players in this area have always been Facebook and Google.
Last year, in anticipation of the 2020 US presidential election, Facebook outlined its plan to combat misinformation on the platform, which included flagging content from state-sponsored media and flagging news disputed by independent fact-checkers as "misinformation." As such, it came as a surprise to many observers when the company refused the Biden campaign's request to remove the Trump campaign ad, while laying out its slightly different approach to misinformation in political ads. "Our approach is based on Facebook's fundamental belief in free speech, respect for the democratic process, and the belief that in mature democracies with a free press, political speech is already arguably the most scrutinized speech in existence." Facebook's head of global election policy, Katie Harbath, wrote in a letter to the Biden campaign. Facebook further explained its position in a blog post: “Without regulation, Facebook and other companies are left to create their own policies. We built ours on the principle that people should be able to hear from those they want to lead, Warts and everyone else, and that what they say should be scrutinized and publicly debated.”
Google, on the other hand, has opted for a different approach and expressly states that it will not treat ads for politicians any differently than ads for other products. "Whether you're running for an office or selling office furniture, we apply the same advertising policies to all of them. there are no carve outs. It's against our policies for advertisers to make false claims," the company said in a November 2019 announcement.
Nevertheless, the anti-Biden advertising can still be found on Google's subsidiary YouTube. As a Google spokesman explained: "In our view, there is a difference between what constitutes political hyperbole and something that could 'materially undermine confidence in democracy'. Political exaggerations are not new. There are politicians who constantly exaggerate the claims.” While Google's policy is to remove ads that contain clear and objectively false factual claims about candidates, the Trump campaign's ad about Biden is actually filled with false implication. WhenWiredmagazine reports,
When we dissect the specific claims in the video, it's not that easy to find one that's proven to be false. Joe Biden may not have "promised" Ukraine the money, but he says he told Ukraine it was conditional on Shokin's sacking - a plan he says he helped develop. Perhaps that wasn't because of Hunter Biden's role at Burisma, but Shokin headed the bureau that launched an investigation into the company a few years earlier. The implication may be dishonest, but the ingredients are all at least truthful.
While Facebook has essentially crafted an exception in its own policies for statements in political ads, Google's policy on misinformation in political ads reflects the core principles of the defamation law, which allows plaintiffs to recover damages for false claims of fact made about them, but not for opinions or suggestions. In practical terms, this means that all but the most obvious fraudulent ads are allowed on the platform, allowing voters to decide which insinuations to believe and which to reject.
Social Media Policy on Microtargeting Political Advertising
It's not necessarily a bad thing to let voters make their own decisions about whether or not to believe what a politician says; One could argue that this is a fundamental part of the democratic process. In an ideal world, the free marketplace of ideas gives the public access to as much information as possible about candidates, the free press evaluates candidates' testimonies and uncovers any falsehoods, and voters debate the issues among themselves and then make their choice among the candidates ballot box. This is how things have generally turned out when it comes to untruths in political ads running in newspapers, radio and television. Since these ads are broadcast to a large and wide audience, they immediately receive a large public scrutiny.
But social media has one feature that sets it apart from these traditional communication media – it enables microtargeting. And microtargeting makes it very difficult to distinguish real news from fake news. As Federal Election Commission Chair Ellen L. Weintraub wrote in an op-ed campaigning for social media platforms to ban micro-targeted political advertising, “It's easy to single out vulnerable groups and give them political misinformation with little deliver accountability. because the general public never sees the ad.”
As a result, untruths in micro-targeted political ads can go unchecked — and those untruths can have significant electoral implications.
It's important to note, however, that microtargeting's impact on democracy isn't all bad. It allows for smaller and less well-funded campaigns to reach voters, as online ads are typically much cheaper than TV and radio ads. It also allows candidates to focus on real and specific issues that matter to their potential voters, as opposed to the more vague and general messages conveyed in traditional media – which in turn can reduce voter engagement and turnout increase voters.
Facebook and Google likely weighed good and bad when setting their policies on microtargeting for political ads, but came to strikingly different conclusions. Google's current policy only allows political ads to be targeted to broad categories such as zip code, gender, and age. The platform allows for contextual targeting, which means that an ad about immigration policy, for example, can be shown to a person reading a story about immigration. As Google noted in its policy update announcement last November, “this will align our approach to election advertising with well-established practices in media such as television, radio and print, and result in election advertising being seen more widely and being available for more public discussion.”
Facebook, on the other hand, has taken a much more permissive stance on microtargeting, choosing to put no limits on how campaigns can target their ads. Instead, it's committed to giving users more control over how many political ads they see and making it easier to search its online library of political ads -- moves that many critics say do very little to help target ads expose to public scrutiny.
The way we regulate a new form of communication must take into account the unique properties of the technology behind it. A few decades ago, the US Supreme Court ruled that radio and television stations could be penalized for broadcasting profanity. While this type of speech punishment would clearly violate the First Amendment if imposed on a newspaper, the court found that unlike the printed word, broadcast media is ubiquitous and invasive — it can get in the ear of someone even if they are not involved was it on
Likewise, social media also have completely different characteristics than the media before it. The regulation of political advertising on social media, whether by the platforms themselves or by government actors, needs to recognize that allowing candidates to microtarget ads while not fact-checking their statements creates an environment in which false information can spread unchecked .
Lata Nottis an attorney with expertise at the intersection of law, technology and expression. She is a Fellow for the First Amendment at the Freedom Forum, an organization dedicated to promoting First Amendment freedoms for all.