This article is a response to “Policing Propaganda.“
The Economist’s article asserts that lawmakers, and not the heads of tech companies, should dictate what kinds of ads are and aren’t allowed online. This claim begs the question; could some type of extensive government regulation of media ever actually work in the United States, insofar as keeping the money of tech CEOs out of political advertising? Would such prohibition even be constitutional? Would it be contrary to Citizens United?
The tradeoff between liberty and safety is an ever-present contradiction in the interpretation of the Constitution. The framers of the constitution were not unaware of this dilemma; Hamilton wrote in Federalist No. 81 that even “the ardent love of liberty” was subject to compromise when the safety of the nation was at stake. The anti-Federalists and libertarians of the early United States were in agreement with the Federalists on this matter; it was the anti-Federalists that got the Bill of Rights, including the First Amendment, added to the Constitution in the first place2.
American politics has traditionally left3 policing of misleading advertisements and news that is not outright inflammatory up to the discretion of media companies. The highest government authority for regulation of commercial advertisements is the Federal Trade Commission (FTC), which has the ability to oversee the distribution of media and the censorship thereof. Advertising which is outright false is not protected, but misleading advertising and news is a gray area which has been subject to several revisions by the Supreme Court since the adoption of the constitution. Until the early 1900s, commercial speech was almost completely unregulated4. Then, in the mid-century, there was something of a trend5 towards more stringent regulation of commercial speech — that is, until the 1990s and 2000s, when the advent of the internet made disseminating information easier than ever, and more difficult than ever to regulate.
In 2013, the United States implemented new reforms6 which voided anti-propaganda laws which had been in place for decades. This coincided with a renaissance of online journalism, with sites such as Buzzfeed and Breitbart seeing surges in viewership. The Economist’s article on the subject7 limits the scope of its analysis to the time around the 2016 election cycle, by which time several changes had occurred; laws on misleading speech had greatly relaxed, and misleading speech became harder to identify and root out to begin with.
Mark Zuckerberg himself addressed these trends8 in a 2019 speech about online advertising and censorship, citing New York v. Sullivan, a Supreme Court case from fifty years earlier which narrowed the definition of libel to exclude certain types of false information. Zuckerberg has come under fire in the past for being partial to certain groups with respect to advertising9, especially the restrictions on ads by right-wing groups which often included inflammatory content.
It is a fact that extremists from across the political spectrum have utilized the internet to mobilize support for and disseminate propaganda related to their causes10. Generally, propaganda seeks to convert people and “spread the message,” but there has also been, in recent years, an increase in tightly-knit, highly exclusionary communities online11. Crypto-fascism and other movements have surged, but so has subversive discourse and edgy political satire (which I have written about before).
Nevertheless, hardline libertarian groups such as the Tea Party continue to advocate12 fewer restrictions on online speech. In addition, certain right-wing groups, especially starting circa 2015, have falsely claimed13 that restrictions on online speech disproportionately affect right-wing sources. In fact, one of the greatest feats of political acrobatics of the 21st century is the campaign by rich conservatives to convince lower-middle-class right-wingers that legislation which negatively affects the rich also negatively affects the poor, but that’s a story for another time.
In a perfect world, all news and advertising would be completely objective and factual. But the reality of the United States political apparatus is that a hands-off, social-darwinist, neoliberal system will remain an unchanging factor in our media and culture. Until either the Supreme Court or Congress makes significant changes to the Constitution or how it is interpreted, we are stuck with a system strictly governed by those with money.
3http://www.lawpublish.com/amend1.html, ¶ 6.
4Ibid ¶ 5.