Don’t Surrender Free Speech in Effort to Regulate Online Political Ads

There has been much speculation about the online advertisements placed by Russian agents in last year’s presidential election. Was this a plot to swing the outcome? Or was it an effort to create chaos and divide our country?

Whatever the reason, there is one thing we can all agree on: foreign meddling in the domestic affairs of the United States cannot be tolerated and must be stopped.

We’ve already seen new legislation aimed at preventing these sophisticated foreign government propaganda schemes.

Protecting the fundamentals of our democracy is the most important job of the U.S. Congress. However, some measures designed to stop the Russians could unwittingly weaken our democracy — not strengthen it.

Before we come to any answers, let’s be sure we are asking the right questions:

How should we balance the need to protect our democracy while preserving free speech?

Should we prevent anonymous speech?

What is political speech?

Should we be distinguishing the treatment of speech?

Free speech is, of course, the foundation of our democracy. It gives power to the powerless and makes the powerful accountable.

As canonized in our Bill of Rights, our government may only limit free speech in very specific cases. When it comes to political speech, there should be even greater protection from governmental limitations — since those who challenge incumbents often decry actions of the current administration. To preemptively forestall criticism of the status quo creates an environment where incumbents enjoy greater speech protections than competitors.

The need to disclose information sources and origins is understandable given today’s geopolitical threats. Yet, we cannot miss the vital role that anonymous speech plays in our democracy. When James Madison, Alexander Hamilton and John Jay published the Federalist Papers in 1788, they did so anonymously. These founding fathers knew the importance that anonymous speech plays in robust discussions of the issues facing the country.

Of course, if we are to regulate political speech, we must determine what political speech is. Should an advertisement supporting renewable energy be regarded as political speech? What if it’s just an opinion and not really advocacy? Should any advocacy for any issue be labeled political speech? These are not easy questions to answer and perhaps they are questions without a discrete, one-size-fits-all answer. We aren’t talking about something as black and white as prohibiting people from yelling “fire” in a movie theater.

We are not opposed to transparency and we often defend the ability for online platforms to be decide what content should and should not be allowed. But regulating speech, even political speech, cannot be a knee-jerk reaction. Our constitutional tenets demand that we vet any government regulation of free speech through strict-scrutiny with much thought and contemplation.

It is important that we identify any foreign meddling in our elections but, in our striving to safeguard our elections, we must avoid regulations that upend our democracy. Because that would only help our enemies accomplish exactly what they aim to do.


Steve DelBianco is executive director of NetChoice, an association of eCommerce businesses and online consumers who share the goal of promoting convenience, choice and commerce on the net. The views of NetChoice do not necessarily represent the views of its underlying members.

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