Politics and the Pandemic

June 15, 2020

The coronavirus has dramatically transformed U.S. politics. We are witnessing decades old traditions, at least for the time being, becoming obsolete or at least significantly altered.

Political activity has always emphasized broad face-to-face interactions, often leading to the massing of large crowds. But today does anyone want to see politicians kissing babies, pressing the flesh, shaking hands along long political parade routes or at state fairs? Town halls, door-to-door canvasing, even audiences at political debates have all become suspect. In fact, some of the most hotly debated issues of this campaign season already have been generated by COVID-19 concerns: Can we hold national political conventions and, if so, under what health ground rules? Should we, to avoid the spread of the coronavirus, allow substantially increased use of mail-in ballots rather than in-person voting?

With politics becoming less of a contact sport due to social distancing, there is little doubt that the 2020 elections are going to be more dependent on digital and broadcast advertising plus social media than ever in U.S. history. Just for the presidential contest alone, some now estimate substantially more than $1 billion will be spent on this type of outreach as we rapidly approach the November 3 election date. This outpouring of dollars and messaging will inevitably create a hot spotlight of attention, made more pronounced this year in part because the Olympics and other sporting events, as well as many other major entertainment and cultural events, either have been postponed or substantially curtailed.

Perhaps not surprisingly, given the fundamental importance of these communication efforts to campaign success, political leaders from both parties are proposing restrictions on political ads and messaging to counteract what they believe are dangers from this outreach. Unfortunately, these initiatives, however well meaning, appear to be unconstitutional.

Recently, Congressman David Cicilline (D-RI), for example, introduced H.R.7012 (the Protecting Democracy from Disinformation Act). The Act would permit campaign advertisers to target users based solely on three criteria: age, gender, and location. Cicilline argues that microtargeting “allows campaigns to target voters with misleading information based on psychographic profiles that reveal which messages will prove most effective in influencing their beliefs.”

Almost contemporaneously, Representative Anna Eshoo (D-CA) introduced H.R. 7014, the Banning Microtargeted Political Ads Act. Eshoo stated that, “Microtargeting political ads fractures our open democratic debate into millions of private unchecked silos allowing for the spread of false promises, polarizing lies, disinformation, fake news and voter suppression.” H.R. 7014 explicitly prohibits online platforms from disseminating political advertisements targeted to an individual or group of individuals “on any basis other than the recognized place in which the individual or group resides.”

While the use of targeted or microtargeted advertising can certainly be abused, it is also clear that it can deliver truthful, relevant, important, and useful information. Certainly, the assumption that targeted speech is somehow fundamentally misleading is neither logical nor warranted. Targeted messages can’t be legally stifled because they are persuasive, as the Supreme Court (in Sorrel v. IMS Health) has made clear. The Court there found that even if the state finds expression too persuasive that “does not permit it to quiet the speech or burden its message.”

These bills are extraordinarily over-inclusive. They would wipe out or block a vast number of totally appropriate communications. In this regard, the Supreme Court in the Virginia Board of Pharmacy case emphasized that the choice “between the dangers of suppressing information and the dangers of its misuse if it is freely available” is one “the First Amendment makes for us.” And these proposals are politically paradoxical in that they seem to suggest that political parties cannot target voters simply on the basis of their previous political affiliations or voting behavior.

President Trump and some other Republican leaders also have weighed in, focusing on the treatment of social media messages on various digital platforms. Apparently unhappy with the handling of his Twitter messages and concerns about alleged anti-conservative bias on other platforms, the President on May 28 promulgated an Executive Order entitled “Preventing Online Censorship.” The Order dictates that platforms stop censoring content on their sites or lose liability protections under section 230 of the Communications Decency Act. That law, however, is straightforward. In section 230 (c)(1), it states that interactive computer services cannot be held liable for content provided by others. In section 230 (c)(2) it then emphasizes that: “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." What the President demands the platforms cease to do is exactly what the Communications Decency Act explicitly allows. The President, despite his strong displeasure, cannot override an act of Congress by an Executive Order. In fact, ANA’s general counsel, Doug Wood, has written a thoughtful discussion as to why this type of censorship would be clearly unconstitutional.

So why should those who care about commercial advertising care about these developments? Threats to political advertising and political speech, which always have had extremely high constitutional importance and protection, present clear and dangerous precedents for all advertising categories. These concerns are further substantially compounded and magnified when traditional methods of communicating to consumers based on their perceived interests are vilified or stifled. These pressures and challenges are only likely to intensify as the campaign season further ignites, so we all need to stay vigilant and alert. Free speech is very much under attack and at stake here.

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