Bad bill watch: Digital communication bill would restrict political speech without protecting elections

• House Bill 700 seeks to impose restrictions on online political speech that would mostly affect political newcomers and challengers
• Overseas troll factories and dark money groups would not be impeded by proposed changes in the law
• The bill would impose barriers to political speech on a forum that lends itself to a freer sharing of ideas

The Internet is a relative Wild West of political speech, and that is a good thing.

People communicating through the Internet are less dependent on gatekeepers, such as editors or station managers, to get their messages out. This has allowed political speech from a variety of sources to flourish.

House Bill 700, sponsored by Holly Grange (R – New Hanover), Pricey Harrison (D – Guilford), David R. Lewis (R – Harnett) and Zack Hawkins (D – Durham) would be a large step in reining in that speech. It would create new barriers to entry in the political process for political novices and challengers who wish to promote their political speech online while doing little to stop Internet trolls (people or groups who sow discord through divisive online messages) and dark money groups. The bill also imposes restrictions on speech on a form of communication that is fundamentally different than more one-way channels of communication such as TV or radio.

An incumbency protection bill…

The bill would impose the same disclosure requirements (“Paid for by…) on internet communications that are currently imposed on other media, ignoring the fact that the Internet is a very different communication medium. In fact, H700 would actually make Internet communications more restricted than other media. It would impose a requirement that people or organizations putting political ads on the internet file a report with the NC State Board of Elections with exacting details about the ad. No other form of paid political speech is so burdened.

What is the impetus for this bill? As I wrote in April, H700 is designed for making the Internet safe for incumbents:

As with other forms of regulation, the burdens of complying with H700 would disproportionately affect those with less experience and fewer resources. In this case, those most affected would be challengers.

Listening to legislators in a meeting of the House Elections and Ethics Law committee on June 19 increased my concern. The general tenor of their discussion was not concern over imposing a new set of restrictions on political speech, but a belief that the proposed law should go even further in restricting that speech. Several members stated a belief that even lower levels of spending on promoting political speech on the Internet could “do real damage.” The damage they are most worried about is to their own reelection campaigns.

…that does not stop trolls or impede dark money groups

Would H700 stop Russian Internet trolls and end dark money campaigns in North Carolina?

No.

The bill would do nothing to stop overseas troll factories from interfering in North Carolina elections; paid ads are a negligible part of those groups’ methodology (they rely mostly on unpaid social messaging) and national defense agencies are better equipped to handle the kinds of threats they pose.

Nor would the bill seriously impede spending from outside groups. Well-financed groups have the means to work through the restrictions in the bill. A group calling itself the “Fluffy Kitten Protection Fund” does not care if “Paid for by the Fluffy Kitten Protection Fund” is included as a disclaimer in their ads. In any case, campaign expenditures are already included in finance reports filed with the NC State Board of Elections. For example, we already know that the bulk of expenditures from TurnNCBlue in 2018 were for social media.

As my colleague Donald Bryson noted, H700 is a cure worse than the disease.

Don’t fence “Publius” in

Anonymous political speech has been an important part of our political discourse since the beginning of our Republic. Writers on both sides of the debate over ratifying the Constitution wrote anonymously, using pseudonyms such as “Publius,” “Brutus,” or “Federal Farmer,” to protect themselves from potential reprisals.

The value of anonymity in political speech, “when the message is removed from the speaker,” has long been known (Pillar of Law Institute):

From The Federalist Papers to Democracy to modern Internet and press practices, the impact of anonymous speech is clear. The value of speech can greatly increase when the message is removed from the speaker. Furthermore, speakers often have a legitimate interest in shielding their identities from those in power and from their neighbors. These benefits of anonymous political speech must not be dismissed when considering campaign finance laws that abridge—or entirely restrict—anonymity.

It is important to remember that those arguing for or against the ratification of the Constitution were using the latest communication technology available to them; the relative newness of a medium of communication is not a valid excuse to restrict speech on that medium.

 

The Internet is distinct from other forms of mass communication. Ads on radio, TV, or in newspapers are a one-way channel: one side produces ads and the other side receives them. The Internet is different in that people are simultaneously receivers and producers of political content. Promoted political content on social media platforms like Twitter quickly attract negative comments from opponents. In those cases in which Internet ads do not offer direct opportunities for opposing viewpoints, the Internet itself is full of countervailing views. Even if restrictions on political speech were appropriate for some forms of media, they are certainly out of place on the Internet.

Restrictions on political speech could be appropriate if there is an overriding state interest in doing so, but there is no such overriding interest to restrict political speech on the Internet. H700 would not solve the problems its proponents claim but would create a burden on political speech for all citizens.