To protect free speech online, we need transparency, not secrecy

Ann M. Ravel | November 01, 2019

The following opinion piece by Ann M. Ravel,  Digital Deception Project Director at MapLight, originally appeared on The Fulcrum.

Five years ago, as Vice Chair of the Federal Election Commission, I wrote a statement calling on the commission to discuss online political messaging, which was and still is completely exempt from federal campaign finance disclosure laws. While I didn’t foresee exactly what would happen over the next half-decade—Russia’s interference in U.S. elections, the rise of the far-right aided by social media, and the proliferation of digital disinformation—I did see that political campaign communications were increasingly moving online. If left unregulated, digital media posed an enormous threat to democracy as we know it, and I wanted the Commission to discuss this.

The day after my statement, another commissioner, Lee Goodman, appeared on Fox and Friends to argue that I was trying to “censor” free speech online. Following his appearance, my Twitter account and FEC email were flooded with misogynistic and anti-Semitic messages and death threats. One e-mail was even signed ‘Heil Hitler.’

Though this was my first personal experience with individuals citing the First Amendment to push back, violently, against the notion of disclosure, it was far from my last. Ever since Bradley Smith published Unfree Speech—which asserts that the First Amendment requires the repeal of all restrictions on campaign finance giving—the concept of free speech has been pitted against campaign finance disclosure. Just last month, Goodman called on this familiar rhetoric to argue against having an FEC symposium on online disinformation.

This argument has always been surprising to me. A core tenet I hold is the right of individuals to speak freely and engage in civic discourse. My very first case as a lawyer was defending, pro-bono, the First Amendment right to get signatures on a petition. From this perspective, I have always maintained that, far from obstructing free speech, campaign finance disclosure and transparency are in fact integral to maintaining this most fundamental American right.

This view comes straight from United States Supreme Court. Far from finding that campaign finance disclosure infringes on free speech, the courts of the United States have always been firm in ruling that disclosure is necessary to deter corruption, enforce existing laws, and ensure voters have accurate information about electoral issues and candidates. In Buckley v. Valeo (1976) for example, while striking down many election spending limits, the Supreme Court maintained the need for disclosure. Even in Citizens United v. FEC (2010)—a case that lifted restrictions on corporate independent expenditures in the name of free speech—the Court still endorsed disclosing the sources of those expenditures. In the majority decision, Justice Anthony Kennedy noted that, “this transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

As digital political advertising continues to grow without legislative oversight, the disclosure that is so crucial to democratic decision-making is shrinking. Without disclosure, advertisers are able to target minority groups with propaganda to deliberately disenfranchise them or suppress voter turnout. Individuals can program armies of automated accounts to harass other users or manipulate trending topics completely anonymously. Russian agents can spread viciously false propaganda to sway our elections because the regulations do not exist to catch them. None of these actions is or ever should be protected by the First Amendment.

Without protection against these threats, voters are robbed of the ability to give proper weight to speakers and messages that Justice Kennedy spoke about. Not knowing who is trying to influence them, or how, deprives voters of their agency and ability to decide whether a particular message or candidate resonates with them. The lack of transparency also means that individuals and groups can, with greater impunity, harass and target people—frequently women and minorities—in an attempt to silence them. This form of manipulation has not been protected by the First Amendment in traditional media, and it should certainly not be protected online. 

Fortunately, lawmakers have proposed bills to address these problems, such as the For the People Act and the Honest Ads Act. Yet Senate Majority Leader Mitch McConnell has stated that he will not even allow such legislation to be heard on the Senate floor. His rationale? Back to the old standby excuse: it would give the federal government too much control over Americans’ political speech.

It is past time to stop raising this particular specter. When we talk about increasing transparency online, stifling free speech is not the risk. The proliferation of digital deception undermining our democracy, however, is a crisis.

Ann M. Ravel is the Digital Deception Project Director at MapLight and previously served as chair of the Federal Election Commission.