The government can step in and force social media companies to set up some basic protocols to guard against the posting of campaign lies. This would be a whole new frontier for the government, and regulation of online speech is tricky to say the least.
ADVERTISEMENTIt might have surprised you when you heard that 2020 presidential candidate Sen. Elizabeth Warren, D-Mass., WAS working on legislation that would increase taxes on every American family and eventually force 30 percent of those families to file for bankruptcy. You may also have read social media comments by people calling her a dangerous socialist.
The problem is, none of this is true. Warren is not working on legislation that would raise taxes on all Americans and there is no evidence her proposals would lead to such an increase in bankruptcy filings. But politicians can and do post lies on social media such as Facebook and Twitter. And those companies do not have to delete those lies.
In the abstract, it feels like such lies should be easy to disprove. People will simply point out the lie, and the truth will come out. In the abstract, people will not base their opinions and votes on false information they read on social media.
But we don’t live in the abstract. We live in reality. And in reality, what you read on social media can affect your views and votes. That is exactly why candidates, who tend not to like to throw money away, are increasingly spending money on advertisements on social media. Some of these candidate-funded ads are filled with truths, others with lies.
These political lies poison and erode our democracy. But we have two main options to combat them. First, we can exert enormous pressure on social media platforms to prevent or delete false campaign statements. This would be the cleanest way to implement change, but this is extremely unlikely to happen. Second, the government can step in and force social media companies to set up some basic protocols to guard against the posting of campaign lies. This would be a whole new frontier for the government, and regulation of online speech is tricky to say the least.
And that is why Warren posted an admittedly false Facebook ad earlier in October. In the fake ad, Warren alleged that Mark Zuckerberg, the founder of Facebook, had endorsed Trump’s re-election campaign. She then quickly admitted that allegation was false. Her point was to argue that politicians can lie on Facebook, and spend money on ads that are patently false.
The impetus behind the ad, at least in part, was a Trump campaign ad which falsely claims that former vice president and 2020 presidential candidate Joe Biden offered to pay people in the Ukraine $1 billion to help his son. Some, but not all, television stations refused to air the spot.
Not everyone gets to blatantly lie in Facebook ads. That is a special privilege largely reserved for politicians. Facebook treats ads from politicians as different from other ads largely because there are other considerations when it comes to political speech, which is often deemed newsworthy. If these ads were not posted by politicians, they would be subject to a review by Facebook’s independent fact-checkers and content rules.
Twitter, similarly, has an exemption for accounts run by military or government entities. Those accounts are not subject to Twitter’s prohibitions against things like specific threats of violence. In addition, Twitter will typically let stand any posts it views as newsworthy, even if false or misleading. And it is easy to see why anything posted by the president of the United States is newsworthy.
To be fair, social media corporations are in a difficult position. If they start policing lies, it means a person or group of people will have to act as the truth police. It means social media corporations will be subject to claims of censorship and political bias. It is much easier for these corporations to just take a step back and let politicians post whatever they want. This may be why, in the face of Warren’s attacks on Facebook and its policies, Zuckerberg has stated in no uncertain terms that Facebook has no plans to police ads that constitute political speech.
Here is the next problem — democracy is difficult and messy. And social media corporations have provided a platform that dirties up already dirty campaigns.
Social media platforms like Facebook are the new town squares. The days of politicians and voters meeting in the center of town to debate candidates and issues are mostly gone. But the days of politicians posting, liking and sharing their views on social media are here to stay, at least until the next big technological invention.
It is time to clean up the town square. Let’s pick up the false flyers and the patently deceitful pamphlets.
Because media corporations appear to have no appetite to regulate this political speech, it may be up to the government to ensure that our marketplace of ideas is not corrupted by lies and deceit.
We do have a loose blueprint to follow. The Federal Communications Commission (FCC), an independent government agency, regulates television and radio. The general rule is that the FCC cannot regulate the content that is aired on television and radio stations because that would be censorship and would run afoul of the First Amendment. But there are significant exceptions to that rule. For instance, the FCC can regulate obscene and indecent programming in order to protect children. In addition, the FCC has a prohibition against broadcasting false information that causes substantial public harm. But this prohibition applies to comments about crimes or catastrophes. Not all false campaign statements fall within that bucket.
Even if this prohibition against false speech was applied more broadly, the big hurdle is that the FCC can only regulate content over television and radio because the government grants individual radio and television stations licenses in order to broadcast. The broadcast spectrum is viewed as owned by the people, and so the government can regulate it.
A professor at Duke University, Philip M. Napoli, has tried to find a way over that hurdle. He has argued that we should view user data as a public resource. And therefore, because social media is using a public resource, the FCC could regulate that resource, as it regulates individual television and radio stations. This is a smart and novel argument, and one that would allow the FCC to regulate some speech without trampling on the First Amendment.
But another word for novel is untested. In our current political climate, it seems unlikely that we would agree to vastly expand the purview of the FCC and charge it with regulating even the most egregious campaign lies. This option also presents practical problems, as social media corporations like Facebook do not currently control the content of the ads that politicians post.
ADVERTISEMENTIn the long run, either social media corporations must start self-policing or the government must find a way to do it for them. In the short term, the best Band-Aid we have against lies is ourselves. We owe it to ourselves to be vigilant about what we see posted on social media. As voters, we owe it to our democracy to question campaign speech, even when it comes from the campaign itself. Our government is relying on us to be fact-checkers. We must try.
- Jessica Levinson is a professor and the director of the Public Service Institute at Loyola Law School, Los Angeles. Her work focuses on election law and governance issues. She is the former president of the Los Angeles Ethics Commission.
This piece was first published by NBC Think.
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