IS MISINFORMATION FREE SPEECH?
By Carlos Alcala, Chair, Chicano Latino Caucus, California Democratic Party
Trump era political campaigns relying on misinformation and exploiting internet loopholes are here to stay. Foreign players can wreak havoc through deceitful political advertising on the internet. Fake news is 70% more likely to be retweeted. This sort of misinformation reaches all communities including the Latino community. Misinformation poses an increasing danger to Democracy. Ironically, laws restricting misinformation political speech are necessary if we are to preserve a free marketplace of ideas. Misinformation was part of Trump's planned coup: "Say the election was corrupt and leave the rest to me and the Republican Congressmen." The plan was to use the misinformation to refuse to certify the election so that a Republican House could overturn the votes of millions.
At a visceral level, restrictions on misinformation in political advertising seems counterintuitive. But our country does not tolerate misinformation to endanger health or fraud in other advertising.
Present rules for commercial products, such as aspirin, require truth no matter where the ad appears, TV, press, or internet. The Federal Trade Commission enforces truth in product advertising including a scientific basis when appropriate. In order to protect the public, “Product Ads” cannot be false or misleading. Scams and fraud are punishable in product advertising but the same standard does not apply to political ads. In fact, the opposite is true.
Political ads from candidates cannot be censored by media providers, no matter how false they are. But when misinformation is done by a candidate, the public has a chance of knowing the source because a candidate must disclose source and payment for the ad on TV or in newspaper ads. These disclosure requirements were enacted in 2002 in McCain Feingold Campaign Reform. Media companies must keep records of the purchasers of the political ads. However, the anti-censorship protection does not apply to PACS or other third parties. TV stations and newspapers can be sued for libel involving third parties. These rules are applicable to state and local elections. So how did the misinformation in the 2018 election occur: the internet.
The internet provides a gaping loophole for the modern Trump campaign that feeds misinformation to the public. Truth rules applicable to TV and newspapers do not apply to the internet. Russian agents disguised as Americans, posted on Facebook succeeding in reaching 126 million Facebook users, deliberately misled to believe these were their fellow neighbors. Russian agents posted 130,000 Twitter messages and 1000 videos on You Tube to sow discord and promote Trump their candidate of choice. Mueller’s investigation led to the indictment of the Internet Research Agency (IRA), a St Petersburg troll farm. IRA emails boasted about tricking the Americans. The loophole remains open.
Internet advertising build on algorithms that show success in extremism causing a spiral of misinformation. It serves as the business model for misinformation on Fox News which is a separate topic.
Senator Amy Klobuchar has made numerous attempts to the internet misinformation loophole through the Honest Ads Act that would extend campaign reform laws to internet advertising, including disclosures of sources, and record keeping of ad purchases. The Honest Ads Act would also bar foreign countries disguised as Americans from internet advertising in United States elections. These rules alone would dramatically limit the ability of the Republican Party to directly or indirectly lie and cheat through the internet. The Republican Party has continued to oppose any efforts to require truth in political ads. The current status is that ads must tell the truth about aspirin and Geritol but not about Trump. The odor of mendacity is overwhelming.
Can California do anything to extend truth in political advertising to all California campaign advertising. Read the next CLC Newsletter, that will give me more time to think about it.