Political advertising is a form of campaigning that allows candidates to directly convey their message to voters and influence the political debate. By running ads on various types of media, candidates can reach audiences that otherwise may not have been paying attention to the election and build name recognition, highlight important issues, and call attention to the shortcomings of their opponents.
In the past, the vehicles for political ads were newspapers, direct mail, radio, and television. In 2008, Barack Obama became one of the first candidates to use social media advertising in his campaign. That year, 2008, candidates spent a total of $22.25 million on online political ads. Since then, online political advertising on has exploded—in 2016, candidates spent $1.4 billion on them.
In the aftermath of the 2016 presidential election, the public became aware of just how powerful and game changing political advertising on social media could be. Brad Parscale, the Trump campaign’s digital strategist, tweeted that their campaign on Facebook was “100x to 200x” more efficient than the Clinton campaign. The reason for this became clear after whistleblower Christopher Wylie revealed that the Trump campaign’s data analytics team, Cambridge Analytica, “used personal information taken without authorisation in early 2014 to build a system that could profile individual U.S. voters, in order to target them with personalised political advertisements.”
It was also uncovered that some of the ads on social media weren’t coming from candidates at all. A report from the Senate Select Intelligence Committee disclosed that the Russian government spent about $100,000 on Facebook ads in an effort to interfere with the U.S. presidential election. While this might seem like a paltry sum compared to the cost of a television ad, the impact of those ads was amplified by the fact that they were designed to fan division on polarizing issues, such as gun control and race relations, and then targeted toward those most vulnerable to those messages.
As a society, we are still dealing with the fallout from these revelations and trying to determine what kind of controls, if any, should be placed on social media platforms when it comes to political advertising. The debate was reignited in November 2019, when Facebook refused to take down a misleading anti-Biden ad released by President Donald Trump’s reelection campaign. As the 2020 election draws closer, we need to take a look at the policies that social media platforms are implementing for political ads, and what the implications are for our democratic process.
First Amendment and Political Advertising
To understand the challenges of regulating political ads on social media, it’s helpful to look at the history of political advertising in the United States and how it’s been regulated in other forms of media.
There is a long and rich history in our country of candidates lying about their opponents, starting with Thomas Jefferson’s campaign claiming that John Adams was going to take the country to war with France.
Lying in political advertisements is also perfectly legal. This comes as a surprise to some because commercial ads are subject to restrictions that prevent them from making false claims about products or competitors. For example, when Kentucky Fried Chicken tried to claim that fried chicken could be part of an effective diet program in 2004, the Federal Trade Commission (FTC) penalized the company, requiring it to pull the commercials and submit all advertising for FTC review for the next five years.
The same doesn’t hold true for someone running for political office who runs an ad making false claims about their opponent. Why? Because political ads are considered political speech, and First Amendment law protects political speech above all other types of speech. The government has more leeway to penalize or censor commercial speech, but it has very little authority to regulate political ads. The rationale behind this is that voters have a right to uncensored information from candidates, which they can then evaluate themselves before making their decisions at the ballot box.
Because no government agency can impose penalties on a candidate who lies in an ad, the only form of recourse for a victim of a false attack ad is to sue for defamation.
For practical reasons, these lawsuits tend to be rather rare. It’s difficult for candidates for office to succeed in these lawsuits, given that public figures are subject to a higher standard for libel. Just like private plaintiffs, a public figure must establish that false statements of fact were made about them that damaged their reputation. But on top of that, they must prove that the statements were made with “actual malice,” meaning that those who made the ad either knew it was false or didn’t care whether it was true or false. While many candidates might be able to overcome these hurdles and win their suit, for many it may not be worth their time and money, especially when they’re in the midst of running a campaign.
But let’s say a candidate does want to sue for defamation—who can they sue? Obviously, they can go after the individual or organization who created and paid for the ad, but is the media company that actually distributed the ad to the public also liable? Different rules apply to different mediums of communication.
Newspapers are considered publishers and are liable for the ads that they run. A corollary to this is that they have full discretion over the ads they run and have no obligation to run ads that they don’t want to run—in fact, it is their First Amendment right to make their own decisions about what they will print.
In marked contrast, broadcast radio and television stations cannot pick and choose what political ads they air, at least for candidates of the same office. They can either choose not to run any political ads at all or they have to run political ads for all candidates who want them. Why? Because the airwaves that broadcasters use is a scarce resource. There can only be so many broadcast stations on the spectrum, and the resulting scarcity creates the danger that some points of view might never be aired. This danger is why the Federal Communications Commission is authorized to place certain burdens on the First Amendment rights of the broadcasters in order to ensure that the public is being furnished with diverse ideas and information. Because of this, broadcasters are not liable for the ads that they run.
Cable television channels, meanwhile, aren’t subject to the same regulations as broadcast networks. They don’t have the same unique characteristics that broadcast channels do—they’re not limited in number—which means that they have discretion over which political ads they want to run and which ones they don’t. As a result, they’re also liable for any false ads that run and can be sued for libel.
Political Ads on Social Media
As the newest communications medium to enter the fray, social media has several unique qualities that distinguish it from the media that came before it. Like newspapers and cable television stations, practically speaking, there is no limit on how many social media platforms exist. But in practice, there are a few major platforms that dominate the landscape—Facebook (and its subsidiaries WhatsApp and Instagram), Google (and its subsidiary YouTube), and Twitter.
Another quality they have in common with newspapers and cable television stations is that they are under no obligation to run every political ad they receive. Contrary to popular belief, social media platforms do not have to comply with the First Amendment. They are private companies that are free to set their own content policies, and, unlike broadcast stations, there’s no requirement that they offer advertising slots to all candidates.
But unlike newspapers and television stations, social media platforms are not considered publishers at all. They’re considered internet service providers, and because of Section 230 of the Communications Decency Act, they’re not liable for what other people post on them. They can’t be sued for allowing false content on their sites or for running false political ads.
The final and perhaps most crucial difference between social media platforms and the mediums that have come before them is that they allow for a practice called “microtargeting.” Microtargeting can be broadly defined as “a marketing strategy that uses people’s data—about what they like, who they’re connected to, what their demographics are, what they’ve purchased, and more—to segment them into small groups for content targeting.” In the past few years, this practice has become particularly controversial when it comes to targeted political ads.
Each of the major platforms has its own policies when it comes to what political ads they will run and what kind of targeting they will allow for them.