A cure worse than the disease: Internet speech regulations hurt more than they help

By Matt Nese and Donald Bryson

Would elections be more secure if it was harder for Americans to speak about them? That bizarre proposition has been put into laws in North Carolina, in the form of H.B. 700.

At first glance, the bill may look like a simple effort to define technical terms like “electioneering communication” and “qualified digital communication.” The devil is in the details, however. H.B. 700 is a modified version of failed congressional laws called the “Honest Ads Act.” It would expand restrictions on online political speech, including on social media, limiting North Carolinians’ ability to air their opinions about government and hear the views of others.

Under H.B. 700, more speech about politics would be regulated, and the regulations would be harder to follow. The bill would likely reach beyond advocacy or even real discussion of a candidate and encompass posts on Facebook, pictures on Instagram, and even tweets. If a farmer’s market posts a photo of the governor on Facebook and thanks him for taking time off the campaign trail to visit the market, it could be regulated. The group would have to include a disclaimer like the ones found on televised campaign ads and send a copy of the post to the state, along with additional information about the group. If it fails to do so, it would be fined.

In addition to regulating speech that isn’t campaign-related, H.B. 700 would burden political speakers with unnecessary red tape. Raising the cost of speech will discourage many from speaking. That’s a loss for democracy, not a win. This is particularly true for the Internet, where cash-strapped and grassroots organizations often thrive.

Internet speech bills like H.B. 700 are a bait-and-switch. They promise voters more ethical campaigns but merely restrict their ability to speak about them. They promise a solution to foreign interference in elections, specifically Russian efforts to influence the 2016 presidential election, despite the fact that paid advertising was a small and likely ineffective part of their strategy.

Hackers, meme factories, and foreign agents won’t be deterred or even affected by new rules on paid ads. Serious efforts to respond to foreign meddling take place in federal intelligence agencies, not state elections boards. Meanwhile, the burdens created by H.B. 700 would fall on the shoulders of Americans, not foreigners.

The so-called “Honest Ads Act” on which the bill is based was later incorporated as a key component of the House Democrats’ premier laws, H.R. 1. That 700-page bill’s overhaul of campaign finance, voting, and ethics laws was pilloried by critics and Republicans in Congress as a power grab that harmed free speech. H.R. 1 passed the House but is not expected to receive a vote in the Senate.

Other states’ efforts to expand regulations for online political communications have been a debacle. Maryland and Washington both passed their own Internet speech laws in 2018. Maryland even sought the input of Facebook lobbyists, but their insider expertise did not help. Both states’ laws were so impossible to follow that Google stopped selling state and local political ads there. Imagine how smaller platforms without Google’s immense resources will react when faced with the same hurdles.

Making matters worse, Maryland’s law attracted a lawsuit from a coalition of press organizations, including The Washington Post and The Baltimore Sun, for violating their First Amendment rights. In January, a federal court stopped the state from enforcing the law against the publishers, indicating it was likely unconstitutional. If North Carolina legislators succeed in passing similar regulations, it’s a safe bet the courts will wind up resolving the issue in a long and costly fight.

The Internet has long been regarded as a democratizing force in politics. It has reduced the cost of speaking, increased the availability of information about government, and made it easier for like-minded Americans to find each other and organize in support of a cause. These benefits should not be taken for granted and regulated out of existence.

A better path for North Carolina – and the country – is to make it easy for citizens of all beliefs to engage with and speak about politics. Instead of erecting new barriers to speech, we should be removing unnecessary ones and simplifying the rest. Instead of bemoaning the Internet’s faults, we should be harnessing its potential.

H.B. 700 is a cure worse than the disease. Americans are smart enough to decide whether they like a candidate or a policy position. Government shouldn’t limit their speech out of fear they’ll make a choice it doesn’t like. The Founding Fathers understood that. We should too.

Matt Nese is the Director of External Relations at the Institute for Free Speech in Alexandria, Virginia. The Institute for Free Speech is the nation’s largest organization dedicated solely to defending First Amendment political speech rights. Donald Bryson is the President and CEO of the Civitas Institute in Raleigh, North Carolina.

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Author: Donald Bryson


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