New from the Institute for Free Speech

Targeted Advertising is Neither a Problem Nor New

By Joe Albanese

The capacity to collect data on the internet, especially on social media sites where people voluntarily share a great deal of personal information, makes this process more precise and affordable than ever before. But targeting existed before the internet; it’s the reason why you see financial services advertised on the Fox Business Network and CNBC instead of Cartoon Network and Nickelodeon. Some advocates for greater regulation of political speech – skeptical of Americans’ ability to interpret political messages for themselves – fear the internet’s ability to enhance the power of advertising. Each news report about high political spending in an election triggers all sorts of hyperbolic responses about the deterioration of American democracy, so the prospect of those advertisements being more persuasive (and divisive) frightens supporters of regulation all that much more…

The fact that advertisers have found more effective ways of persuading Americans should not make us fearful. If we disagree with the ideas that some are bringing to these target audiences, the answer is to bring those same audiences even more compelling messages and ideas, not to censor or regulate any speech that we dislike or disagree with. Insisting on a one-size-fits-all approach to political advocacy is simply unrealistic. Political messengers have to approach audiences on their own terms.

Internet Speech Regulation

BuzzFeed News: Congress Can Crack Down On Tech Companies, But It Can’t Do Much To Their Algorithms

By Alex Kantrowitz

Any law forcing Facebook, Google, or Twitter to change the way they rank information would likely be a clear First Amendment violation…

For more than 40 years now, there’s been legal precedent that will make it difficult for Congress to do anything too severe to these companies. The precedent was set in 1974 when the Supreme Court struck down a Florida state law requiring newspapers to give politicians equal space free of charge when editorials or stories were written about them…

A new transparency-focused bill, the Honest Ads Act, is making its way around the Senate. But even these relatively simple bills come with the potential for unintended consequences, and so they’re not flying through congress with the speed of, say, the healthcare bill.

“When platforms don’t know what to do, the legally over-cautious response is to go way overboard on taking things down just in case they’re illegal,” Daphne Keller, Director of Intermediary Liability at Stanford University’s Center for Internet and Society, told BuzzFeed News. “My worst case scenario legislation would be some vague obligation for platforms to make sure that users don’t do bad things.”

Washington Post: Why Russia’s Facebook ad campaign wasn’t such a success

By Patrick Ruffini

News of Russia’s meddling has produced some scary-sounding numbers: as many as 126 million Americans reached on Facebook alone, a further 20 million on Instagram, and 1.4 million tweets sent by Russian-affiliated accounts in the two months leading up to the election.

Yet, the Russian content was just a tiny share of the 33 trillion posts Americans saw in their Facebook news feeds between 2015 and 2017. Any success the ads had in terms of reach seems attributable largely to the sheer doggedness of the effort, with 80,000 Facebook posts in total. Facebook reported that a quarter of the ads were never seen by anyone. And – with the average Facebook user sifting through 220 news-feed posts a day – many of the rest were simply glanced at, scrolled past and forgotten…

Short of an upheaval significantly curtailing the use of social media as a vehicle for free expression, no legislation can prevent their use as vectors for misinformation or propaganda from foreign powers, particularly when social media is largely free and open for anyone to use. Only a more vigilant citizenry can provide a full-proof defense.

Reason: Cynical Politicians Turn #FakeNews Into a Rallying Cry for Censorship

By J.D. Tuccille

Who knew the republic was so vulnerable that our elections could be monkeywrenched by Russian dirty-tricksters spending their office coffee budget on a motley collection of social media ads that would make the authors of Nigerian prince scam emails wince at their clumsiness?

Or, more likely, cynical politicians are making much ado about Putin and company’s low-rent effort to make themselves look relevant in order to justify government interference in political speech. Just consider Sen. Dianne Feinstein’s (D-Calif.) threat to Facebook, Google, and Twitter during Senate hearings over the clumsy Russky meddling: “You created these platforms, and now they’re being misused. And you have to be the ones who do something about it-or we will.” …

Feinstein is hardly alone in these efforts at muzzling unwelcome voices-18 other senators joined her on that COICA vote. Alternet’s Max Blumenthal points out that “the liberal Democrats in #TechHearings are most outspoken opponents of press freedom & supporters of media censorship,” but the latest stab at regulating online political ads draws support from both sides of the aisle (co-sponsor Sen. John McCain (R-Ariz.) rivals Feinstein in the degree to which he disdains unfettered speech). So it’s business as usual for legislators who apparently see everything as justification for a mass purchase of blue pencils. 

Free Speech

Techdirt: Some Thoughts On Gag Rules And Government Unmasking Demands

By Cathy Gellis

A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We’ve talked before about how important it is that platforms be able to protect their users’ right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it’s one thing to say that people have the right to speak anonymously; it’s another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.

Congress

The Hill: Tax reform can be boon for core political speech

By Mark Renaud

Any corporate tax reduction would promote more legislative advocacy and political speech, which might help Americans engage in more conversations about the issues of the day.

The reduction of the top corporate tax rate to 20 percent in the GOP bill would impact four main areas: taxation of political committee investment income, taxation of political activity by nonprofits, the non-deductibility of lobbying and political expenses and the proxy tax paid by some trade associations…

[N]on-charity nonprofits that engage in certain types of political activity – for example, urging votes for or against federal, state or local candidates or making contributions to political party committees in states where permissible – are currently slapped with a 35-percent excise tax in certain passive income situations.

This high added cost deters some (especially smaller) unions, trade associations, 501(c)(4) social welfare groups and other nonprofits from engaging in any such communications at all. The high tax rate silences them. For those that do venture out, the excise tax reduces the overall amount spent on actual express advocacy or contributions.

Campaigns

Fox News: Fusion GPS official met with Russian operative before and after Trump Jr. sit-down

By Catherine Herridge, Pamela K. Browne, Cyd Upson

The co-founder of Fusion GPS, the firm behind the unverified Trump dossier, met with a Russian lawyer before and after a key meeting she had last year with Trump’s son, Fox News has learned. The contacts shed new light on how closely tied the firm was to Russian interests, at a time when it was financing research to discredit then-candidate Donald Trump.

The opposition research firm has faced renewed scrutiny after litigation revealed that the DNC and Hillary Clinton’s campaign paid for that research. Congressional Republicans have since questioned whether that politically financed research contributed to the FBI’s investigation of Russian collusion with the Trump campaign…

The DNC and Clinton campaign hired Fusion in April 2016 through lawyer Marc Elias, who was general counsel for the Clinton campaign. Fusion, in turn, paid Steele $168,000 for the dossier, memos from which were shared with the FBI…

Mueller’s interest in Fusion is unclear, but the House Intelligence Committee, which is conducting one of several related congressional probes, recently struck a deal to gain access to Fusion’s bank records after initially issuing a subpoena…

Over the weekend, Fusion GPS sought a new restraining order after the House panel requested additional records that could reveal if Fusion was paying media companies or reporters for planting stories.

The States

Washington Post: Most Democrats running for Md. governor say they won’t seek public matching funds

By Ovetta Wiggins

Most of the candidates, who are scrambling to raise money, said the state’s public financing system comes with too many restrictions and would not provide enough money for a competitive bid…

Mike Morrill, a Democratic strategist, said he was not surprised most of the candidates are shunning the fund, especially since the race has no front-runner.

“Every single one of them looks at the race and says ‘I have a chance to be in the final sprint,'” Morrill said. “Public financing is like tying one of your legs off in the final sprint. If you are in the sprint, you need to go full throttle.” …

The state program, which was set up in the 1970s, was originally funded through the tax form checkoff box, which allowed taxpayers to contribute up to $500. The box was removed in 2010 because candidates were not participating in the program, and the money from the fund was being used for other election-related purposes.

In 2014, Hogan and former Del. Heather Mizeur became the first candidates in 20 years to tap the fund.