Earlier this week, Elizabeth Warren launched an attack on Facebook. Her grievance? She’s attacking the tech giant for allowing the Trump campaign to run an ad that contains misleading claims about Joe Biden. Yes, the ad is misleading — implying a tie between Joe Biden’s demand that Ukraine fire its chief prosecutor and his son’s business activities when we have no evidence that American and allied desires to oust the prosecutor had any relationship to Hunter Biden. But misleading ads are hardly new in American politics, and the answer for a bad ad is a better ad, one that rips the president for misleading America.
Facebook refused to remove the ad, citing a policy against policing the content of political advertising. Facebook’s Katie Harbath wrote the Biden campaign and said the company’s policy was “grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is.”
Warren was not pleased:
Facebook already helped elect Donald Trump once. Now, they’re deliberately allowing a candidate to intentionally lie to the American people.
This is a serious threat to our democracy. We need transparency and accountability from Facebook. https://t.co/anu0pWSqS5
— Elizabeth Warren (@ewarren) October 9, 2019
But Warren is wrong, and Facebook is right. Asking tech companies to police the truth of paid political ads opens a Pandora’s Box of potential bias and censorship. Moreover, it’s completely inconsistent with the general practice of television and radio advertising. As NBC’s Dylan Byers pointed out, the ad has also run on NBC, ABC, CBS, Google, YouTube, and Twitter. Asking corporations — including corporations who attempt to outsource fact-checking to independent fact-checkers — to referee the contents of political ads would result in an increased corporate thumb on the scales of American politics. It’s also inconsistent with American constitutional principles.
Yes, I know that Facebook is a private corporation and not subject to constitutional restraint, but I’ve long argued that tech companies should voluntarily adopt policies that are informed by First Amendment values, and Facebook’s policy is completely consistent with the First Amendment. For example, in 2016, the Sixth Circuit Court of Appeals upheld a permanent injunction against enforcement of Ohio’s political false-statements law, and — as the court noted — similar political false-statement laws have been struck down time and again. Indeed, in United States v. Alvarez, the Supreme Court declared that it “has never endorsed the categorical rule . . . that false statements receive no First Amendment protection.”
So, who does Warren believe should police a politician’s access to social media? She doesn’t trust Facebook. And while independent fact-checkers vary wildly in quality, there is no conceivable American consensus around identifying any single political referee. Even if Warren did get her way, and fact-checkers ruled, she might not like the results. Her own campaign rhetoric is often false and misleading. Remember when she ignored an Obama Department of Justice report and falsely claimed that Michael Brown was murdered? That statement earned her four Pinocchios from the Washington Post’s Glenn Kessler, one of the most rigorous fact-checkers in America. Craft an ad based on that rhetoric, and her campaign would have to support its own censorship.
One final note — I’m always intrigued at the level of fury applied to social media ads (especially ads on Facebook) over and above the fury applied to television and radio advertising. It’s as if people attribute near-mystical powers to Facebook ad targeting mechanisms. Don’t make that mistake. Facebook ads matter — like all ads matter — but they are not the magic keys that unlock the gates of the White House. There is no need to depart from the longstanding practice of dealing with campaign rhetoric through debate rather than censorship to face the challenge of false or misleading speech in online ads.
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