Nathaniel Persily is the James B. McClatchy professor of law at Stanford Law School.
For political advertising, like so much else, the digital revolution inspires both utopian and apocalyptic predictions. And as in many other arenas where Internet-based “disruption” looms, the optimists and pessimists both have a point.
For those of us who study campaign and election regulation, however, new technology poses a serious challenge to the existing ways of thinking about and addressing the campaign finance problem. Government regulation becomes increasingly difficult once communication moves online, thus, large Internet platforms such as Google, Facebook and Twitter will become the primary regulators of political campaigns. They need to recognize their new role and use their power responsibly.
One error that observers often make in thinking about the evolution of campaign communication is to view the technological shift as one from television to the Internet. To be sure, what we are seeing is a shift in the “devices” used to connect with audiences — adding computers, tablets, gaming consoles and (in particular) smartphones to televisions as the pathways for communication. But television itself is changing and becoming less distinct from those other devices, as younger viewers in particular move from linear watching to on-demand programming of various types. (That said, Americans continue to watch, on average, more than four hours of live TV per day!)
The change in communication is not limited to the relocation of 30-second TV ads to other devices. A full canvas of online messaging would include not just website ads, YouTube videos, Facebook postings and “promoted” tweets but also search engine results, text messages, news feeds, banner ads, postings by Facebook friends, messages targeting phones at a given time and place, and even native advertising in video games, to name just a few ways campaigns have already started to communicate with voters.
Although we are still several elections away from the full transition to “on-demand politics,” the contours of that brave new world are already coming more clearly into view. Internet utopians see an unmediated political discourse as the ultimate source of empowerment for the little guy. No longer will political advertising be reserved for the wealthy interests or established organizations such as political parties. Nor will the “media” — however, we might now struggle to define it — stand as a gateway to mass communication.
As in other areas of Internet life, though, anonymity, the existence of Internet echo chambers and the premium placed on potential virality lead online content to be more incendiary, unaccountable and attention-grabbing. Donald Trump’s Twitter powers — especially his ability to use new technology to capture the attention of “legacy” media — will be hard for the average candidate or interest group to replicate, but they give us a window into the future erosion of any remaining norms constraining political discourse.
For the most part, the Internet remains an unregulated Wild West when it comes to political communication, and it almost seems inevitable that it will remain so. (The main applicable campaign finance rule only requires disclosure of paid communication on another person’s website.) Given the variety of communications that occur online, the unbounded reach of the Internet and the anonymity that characterizes it, it is difficult even to envision a regulatory regime that could regulate online campaign communication in a manner consistent with even the most restrictive understanding of First Amendment values. Moreover, as historically difficult as it has been to draw exceptions for the official “media” — a critical concept in protecting press freedom — it becomes even more difficult when any person or entity can post, blog and tweet.
However, the lack of government regulation does not mean online communication — especially paid advertising on the platforms with the greatest reach — is unconstrained. Indeed, what we are witnessing is a shift from public to private regulation, as platforms such as Facebook, Twitter and Google wrestle with the policies that should apply to campaign speech. At least formally, they apply their existing regulations for commercial advertising to political advertising. These rules, which prevent misrepresentation, incitement, hate speech and obscenity, among other things, would all violate the First Amendment if they were legislated by the government.
So, the question is not whether these powerful platforms should regulate political advertising but whether they should regulate it differently than other kinds of paid communication. And herein lie both dangers and opportunities. The dangers arise from the potential for the platforms to use their power to discriminate against certain ideas, groups or candidates — as was alleged, for instance, in the controversy surrounding the editing of Facebook’s trending news feature. At the same time, they have an opportunity to adopt rules, especially regarding disclosure, that go beyond what the government now requires. Indeed, given the potential of these technologies to facilitate extreme micro-targeting and even to advertise to you when you don’t realize it, full transparency is more important now than ever.