It can be challenging to distinguish between a paid political ad and one that is not in today’s media environment, especially on social media. News Bureau editor Lois Yoksoulian spoke with advertising professor Michelle Nelson about the topic. New research from Nelson and her colleagues found that most adults – even those who are politically engaged and educated – do not fully understand online targeting, sources and funding for political ads, or the unique regulatory environment for political speech that is different from commercial speech.
Are political ads regulated, and how do they differ from commercial ads?
Political ads are a form of political speech, which is given more protection than commercial speech under the First Amendment, with the idea that the free flow of political information is essential for the functioning of a democracy. Commercial speech, which includes advertising for products and services, has been defined as speech that merely proposes a commercial transaction.
Only commercial speech is regulated by the Federal Trade Commission, motivated by the governmental interest of providing true and nonmisleading information to consumers. Not all commercial speech is advertising, and not all advertising is commercial speech. An ad for a McDonald’s burger is commercial speech, subject to the FTC rules regarding false and misleading information. An ad for a candidate is political speech, not subject to the FTC rules or any content-based guidelines.
However, the Supreme Court has said that time, place and manner restrictions can apply to political ads. For example, laws that require funding disclosure don’t compromise the content of the speech because they provide citizens with information regarding the message’s source. So, there is some regulation for political ads regarding source disclosure.
Is this level of regulation adequate?
No, especially on social media. For example, the “Stand By Your Ad” provision of the 2002 Bipartisan Campaign Reform Act, which requires anyone running for federal office to include the “I approve this message” as part of their ads, only applies to TV and radio, not to social media.
What this means for U.S. voters is that they may not be able to know the true source of the political message. It’s like the Federal Election Commission hasn’t caught up to what’s happening in the media environment. Increasingly, people are getting their political ads and information online. I believe that people have the right to know the source of messages so they can best evaluate the message.
False ads can be challenged through defamation and libel, but those processes take time. The challenge must be filed by the parties who feel wronged, and they probably will not be resolved before that campaign period is long over. So, these measures probably are not strong deterrents.
Any regulations about the message content may be seen as ”chilling” political speech. I’m not sure we want the government to censor ads’ content.
How can citizens determine who is behind a political ad if it is unclear?
As political speech, political advertising is regulated by the FEC. There are clear rules for source disclaimers such as who paid for it, whether it was endorsed by the candidate – on radio, newspaper, TV, outdoor …….