Regulating the “Most Accessible Marketplace of Ideas in History”: Disclosure Requirements in Online Political Advertisements After the 2016 Election,
107 Calif. L. Rev. 1061
The libertarian regulatory environment of online political advertising has come under scrutiny again, as news reports continue to come out describing the extent of Russian interference with the 2016 presidential election. For years, Silicon Valley has resisted Washington, D.C.’s efforts to regulate online political advertising. Tech companies feared regulation would threaten not only their business models, but also the Internet’s status as the “most accessible marketplace of ideas in history.”1 But can America’s democracy continue to tolerate lax regulation of online political advertising? Overwhelming evidence of Russian operatives spreading divisive messages across online platforms during the 2016 residential election demands a government response. In fact, Congress is now debating the Honest Ads Act, and the Federal Election Commission is considering implementing regulations to increase the transparency of online political advertisements. With the specter of regulation, Facebook, Google, and Twitter have updated their policies governing online political advertising.
This Note argues that Congress should pass the Honest Ads Act, which requires disclosure for online political advertising and makes reasonable efforts to stop foreign interference with elections. Disclosure requirements are important because they provide information to voters, deter corruption, and facilitate enforcement of campaign laws. The Supreme Court has long upheld disclosure requirements, including in its controversial Citizens United v. Federal Election Commission decision. But disclosure requirements are likely only a partial solution. Laws and regulations may struggle to reach the trolls and bots that spread Russian disinformation during the 2016 presidential election without infringing the First Amendment. To rein in these bad actors, American democracy will have to rely on Silicon Valley to police online platforms rather than on Washington, D.C.
This Note first provides an overview of the development of disclosure requirements in the Supreme Court’s jurisprudence. It then describes the libertarian regulatory environment of online political advertising and Silicon Valley’s efforts to self-regulate in the wake of the 2016 presidential election. Finally, the Note advocates for the passage of the Honest Ads Act and discusses the limits of regulating online political advertising.