There's been a lot of discussion about political ads on social media sites recently, with Twitter's announcement they are rejecting political ads and Mark Zuckerberg's congressional testimony explaining why he won't have Facebook be in the position of policing political ads.
And most of the conversation seems to be missing the essential point of why political advertising on social media is different than traditional modes of political advertising.
So let's talk about it.
When Zuckerberg appeared before Congress, AOC yet others went after him pretty hard concerning the fact that Facebook isn't prepared to determine whether or not the items in political ads on the platform are accurate or truthful.
What Zuckerberg said was he believes in free speech. What he should have said is the fact that when it comes to the content of advertising finances a multitude of regulations on speech in the usa.
Think about, for example, the federal and state regulations on Comparative Advertising.
Do you wonder why, in commercials, you hear advertisers say things like \”We tested Tide against the leading brand.\”
Why not just say \”We tested Tide against Cheer?\” It's because there are laws against making false claims against specific products and violations result in really hefty fines from the advertiser
I'm not a lawyer but a layman can see how such regulations are, in a tiny way, an abridgement of an absolute to free speech. And yet, most of us realize that there is a difference in kind between a corporate commercial advertisement and an individual political expression. So we don't get too worked up about diminishing Tide's First Amendment rights.
That's an example of a free-speech restriction on what you can't say.
But there are also cases in which certain types of speech entail a mandate to state something, even if you don't want to. That's why, when you see an add for medication, it always features a laundry list of possible side-effects: Use of Trumpacid can be accompanied by lazy eye, hair thinning, muscle spasms, a weak bladder, dizziness, a pounding heart, and in some cases cardiac arrest. For erections staying longer than four hours, contact Stormy Daniels.
So what Zuckerberg must have said is that if Congress wants to regulate the speech in political advertising, it is up to them to pass laws holding political ad-makers to higher standards. After all, if Tide can't mention its competitors by name, then why can political candidates? And why don't ads for politicians be required to include some sort of disclaimer that states: \”This becoming an unverified political ad, the viewer is now advised that absolutely everything stated in the ad may be a wholesale fabrication. Caution.\”
That would be a good start and squarely within the realm of how we already restrict free-speech for that greater good. And there would be no need for Mark Zuckerberg to get involved at all. Win/Win!
Sadly that's not the biggest problem with political advertising on social networking.
The bigger problem is that arguments about the self-regulatory nature of political speech break down on the Internet once robots get involved.
The classic argument for free political speech is that it's better to let everyone get their say than to invest some central authority using the power to set limits. And also the reason it's okay to spread out the floodgates is that we let all ideas get vetted within the public square and while a lot of ugly things will get said by a few terrible people when all's said and done the public generally weeds out the good ideas from the bad ones.
In essence: We prefer freedom of expression to centralized speech since the marketplace for ideas works.
If we use nutrition being an analogy, ideas are like food and the digestive system is the public square. You can eat a lot of Doritos and Cheez Whiz but between your stomach and your liver and your kidneys whatever nutrition there might be in these substances gets parsed out and utilized to your benefit. The rest adopts the toilet. Sure, you're better off eating carrots and beans, however the point is the system is made to handle just about anything and isn't it better to have the choice?
But Facebook differs.
The benefit of free-speech-the exposure of the full-range of claims and ideas, positive and negative, which can be compared, evaluated, and then accepted or rejected through the public at large-is disabled by Facebook's capacity for microtargeting. Having robots cherrypick who sees which ideas and who doesn't may be the advertising equivalent of bypassing the digestive system and injecting Doritos and Cheez Whiz directly into your bloodstream.
Sure, you can refer to this as \”free-speech\” but it's free speech that bypasses the marketplace of ideas-the very mechanism which makes all the arguably negative facets of free expression worthwhile. The strength of Facebook is that it allows advertisers to propagandize to some robot-selected subset of the population who are most susceptible to their message and hide that message from those who might reasonably disagree.
Think of it this way: If a bunch of Nazis hold a rally, a lot of us believe that it's better to expose their very bad ideas to daylight so that the everyone else know what the Nazis think, and how many of them there are, and who in our communities enjoys marching with Nazis. Listening to Nazis may be no fun, but in the finish, free speech wins because the alternative is to have them festering and grooming their nonsense in secrecy and under cover of darkness.
But let's say Nazis had a technology which ensured that they organize surreptitiously, hiding from public view, keeping themselves anonymous and cloaking their activity from observation by outsiders? Worse, fraxel treatments would use the latest advances in behavioural science and sociology to automagically search the world and identify all the people most susceptible to Nazi ideology and deliver their recruitment messages directly-and exclusively-to them.
Well, this is a horse of a different color. That's actually pretty pernicious.
The micro-targeting of social networking platforms, which allows paid political speech to circumvent public exposure, is another one of those situations where an absolutist view of the First Amendment may not take advantage sense.
So, what is to be done?
Unlike Richard Stengel who argues that the solution is regulation against \”hate speech\” , I'm not going us to create a central authority to vet ideas for us.
Instead, if we agree that the problem we face is born of a technology which creates a very specific siloing effect within otherwise normal speech, remodel which will we should add one more very specific restriction on freedom of expression.
It could read something like:
No paid messages could be distributed via microtargeting at those who are chosen algorithmically or with the help of algorithms.
I stress the algorithm part because a military of humans crunching data would still never be able to effectively determine which people should be exposed to which messages, but our robot overlords have this methodology refined to some mind-boggling degree of accuracy.
This approach splits the baby. Instead of requiring that political advertisements be \”true\”-whatever that means-we could concentrate on the manner of dissemination. You can deliver all the controversial and misleading ideas you like. But you can't do it exclusively to the people most likely to be misled by them and out of sight of everyone else by using AI.
We'd need to make exceptions for soapy bicycles and other products that do not have anything to do with ideology or politics because it's obviously the life-blood of modern advertising to market your wares to the people most likely to need or want them. However the line has to be drawn at something that pertains to societal norms and our democracy.
Could this type of law withstand the rigors of the judicial review? I don't know. But when we can't figure out a way to deal with the pernicious speech on our own, then eventually some authoritarian is going to come along and offer to do it for all of us.
And if people have lost faith available on the market of ideas, then they might just let him.