The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads. That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform. Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads. Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor. That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms. Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article. Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:
[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads from political candidates that contained false statements of fact. We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems). As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.
As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content. Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it. Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here). There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here). Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply. National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply. So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.
Disclosure is another place where the government-imposed rules are different depending on the platform. Broadcast and local cable systems have extensive disclosure obligations, in online public files, that detail advertising purchases by candidates and other issue advertisers. We recently wrote (here and here) about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee). Cable networks and online platforms do not have federal disclosure obligations. Some have voluntarily adopted their own disclosure policies. In addition, some states have imposed obligations on these platforms (see, for instance, our article here), but as we wrote last month, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on platforms rather than on advertisers.
Certainly, it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves. Online platforms clearly have the potential to target advertising messages to a much more granular audience. The purpose of this article is not to argue one way or the other – just to point out that these differences exist. As we are already well into the political season with advertising running for the 2020 election, we are unlikely to see significant changes in these rules for this election – but watch for more discussions on these differences in the future in terms of how various platforms treat political advertising, and whether this differing treatment should continue.