‘Honest’ political ads: Watch out, Drudge, you’re next

When Congress returns to business next week, it will take up legislative responses to foreign meddling in American elections. Front and center will be the Honest Ads Act, a bill severely restricting the First Amendment rights of American citizens and media companies but barely impacting foreign meddlers.  

Using what is historically known as “active measures,” Russians have attempted to influence American public opinion and election outcomes over many decades. So foreign meddling is not new.  

What is new are the technological tools – the internet and social media – that facilitate the dissemination of foreign propaganda. Foreign meddlers no longer need to spread their political propaganda on American soil; they can communicate directly to Americans from computers as far away as, say, St. Petersburg, Russia.

The first legislative response in Congress was the Honest Ads Act, principally targeting speech by law-abiding Americans and media companies in a clumsy effort to screen a tiny fraction of potential foreign propaganda. The act would require Americans who spend as little as $500 on ads, discussing any political topic, to publicly expose their identities, addresses and detailed information about their audiences. 

The bill suffers from several inescapable flaws. It would apply only to paid ads — but, in 2016, most Russian propaganda was posted on free social media platforms. It would apply only to the largest media platforms — those with more than 50 million unique monthly visitors, which covers Twitter, Facebook and the New York Times but leaves thousands of other platforms viewed by hundreds of millions of Americans open to foreign propaganda. It would be only a matter of time before other highly visited advertising platforms are swept into the law.

So, watch out, Drudge: Congress will come for you next.

The Honest Ads Act would conscript the resources of media companies and foist upon them law enforcement responsibilities that the FBI and other national intelligence agencies failed at in 2016. But here’s the catch: If media companies fail to detect foreigners disguised with false American identities, they will be punished as lawbreakers. They are drafted to be both law enforcers and criminals in one bill. And we now know that Russians effectively assumed false American identities with U.S. bank accounts in 2016, so the burden on media companies will be arduous. 

Most importantly, the bill’s principal casualty will be the free-speech rights of American citizens and media companies. Americans who want to talk about public policy would be exposed, harassed and chilled from speaking freely. A federal court recently ruled an analogous Maryland law likely violates the First Amendment because it forced press platforms like WashingtonPost.com to publish information about its advertisers. 

In short, foreign meddlers on the internet might justify a legislative response — but the Honest Ads Act, or any law restricting or punishing the free speech of Americans, is not an acceptable solution. If Congress is serious about regulating foreign speech that might influence our politics, then it should pass a law targeting foreign speakers.

Fortunately, Congress need not meddle with the free speech of Americans to address foreign political meddling. A law already targets such foreign-sponsored propaganda. It’s called the Foreign Agents Registration Act, or FARA, and is enforced by the National Security Division of the Department of Justice (DOJ) in consultation with other intelligence agencies. 

FARA requires American agents of foreign principals (including foreign governments, political parties and individuals) to register with the DOJ, file regular reports detailing their propaganda and activities, and post notices on all propaganda to inform recipients that the speech is foreign-sponsored. 

But FARA was crafted long before the advent of the internet. It presumes that a foreigner will sponsor propaganda through an American agent “within the United States.” It does not cover foreign speakers directing messages to Americans from a foreign computer.

FARA should be amended to adapt it to foreign operatives targeting Americans via social media platforms. Its registration and disclaimer provisions could be extended to cover foreign speakers – not just their U.S. agents – whenever they purposefully utilize American telecommunications systems and equipment, including social media accounts, advertising platforms, computer servers and internet connections. 

Last year Congress amended the Communications Act of 1934 to extend the current prohibition against robocalls originating in the United States to foreign robocallers as well. Likewise, Congress can extend FARA regulations to foreign propagandists using American media platforms.

FARA would be more effective at regulating foreign influence. It requires disclaimers identifying the foreign speaker on a broader range of social and political speech than does the Honest Ads Act. It covers propaganda disseminated for free as well as paid advertisements, so it would bring into the regulatory regime all social media posts, paid and unpaid. And FARA covers propaganda disseminated through all media, not only the internet and social media. 

Significantly, FARA does not prohibit or censor foreign speech; it requires registration and disclaimers. Americans have a First Amendment right to access information and opinion from foreign sources. FARA does not interfere with that right. Of course, foreign expenditures to expressly advocate the election or defeat of U.S. candidates would remain prohibited under the Federal Election Campaign Act.

By contrast, the Honest Ads Act imposes such harsh, potentially criminal penalties upon private media companies that many will simply censor a large amount of political content. Some platforms have refused all political advertising – by Americans – in places like Maryland and Seattle, due to the heavy burdens of compliance and consequences of accidental noncompliance with local “honest ads” acts. FARA also has the benefit of a Supreme Court decision upholding its constitutionality.

Furthermore, FARA is enforced by the DOJ’s National Security Division, so enforcement responsibility would remain with the government, where law enforcement should reside. The DOJ can identify and target the most insidious foreign-meddling campaigns.

Enforcing the law against surreptitious foreign influence always has been a complicated undertaking. But the DOJ, FBI and other intelligence agencies have more tools than most media companies. Congress could give DOJ additional tools to detect and expose foreign cheaters, if necessary, including subpoena powers or injunctive remedies. Foreign meddlers like Russia’s Internet Research Agency are unlikely to appear in a federal court to defend non-compliance with FARA while denying that they meddled in the first instance.

Americans’ First Amendment rights should not be a casualty of Russia’s meddling. If Congress is serious about addressing the election meddling experienced in 2016, it will get serious about foreign actors, not meddle with our free speech.  

Lee E. Goodman was chairman of the Federal Election Commission in 2014 and a commissioner from 2013 to 2018. He previously was chief adviser to the chairman of the Congressional Advisory Commission on Electronic Commerce from 1999 to 2000. He is an attorney in the Washington law firm of Wiley Rein. The views expressed are solely his own and do not represent the views of any other person, law firm or client.