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Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising.  Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information…

According to press reports (see this story in Verge and this one in the Washington Post), Facebook will end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other users of its platform.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – though it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content.  Just a year ago, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230). Last year, we compared Facebook’s policy with the laws that apply to other communications platforms, including broadcasters and cable companies.  In light of the potential change in Facebook’s policy, we thought it would be worth revisiting that analysis now.  Here is what we wrote last year:

[In January 2020], 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.
Continue Reading Reports that Facebook Will End Policy of Not Censoring Politician’s Posts – How Other Communications Platforms are Regulated on Political Speech

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.
Continue Reading Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates.  While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress.  In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads.  In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates.  Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content.  And for Federal candidates, broadcasters must accept those ads once a political campaign has started, under the reasonable access rules that apply only to federal candidates.

In fact, as we wrote here, broadcasters are immune from any legal claims that may arise from the content of over-the-air candidate ads, based on Supreme Court decisions. Since broadcasters cannot censor ads placed by candidates, the Court has ruled, broadcasters cannot be held responsible for the content of those ads.  If a candidate’s ad is defamatory, or if it infringes on someone’s copyright, the aggrieved party has a remedy against the candidate who sponsored the ad, but that party has no remedy against the broadcaster.  (In contrast, when a broadcaster receives an ad from a non-candidate group that is claimed to be false, it can reject the ad based on its content, so it has potential liability if it does not pull the ad once it is aware of its falsity – see our article here for more information about what to do when confronted with issues about the truth of a third-party ad).  This immunity from liability for statements made in candidate ads absolves the broadcaster from having to referee the truth or falsity of political ads which, as is evident in today’s politically fragmented world, may well be perceived differently by different people.  So, even though Facebook is taking the same position in not censoring candidate ads as Congress has required broadcasters to take, should it be held to a different standard? 
Continue Reading Facebook Criticized for Not Censoring Candidate Ads – Even Though Congress Requires No Censorship from Broadcasters