Facebook’s decision on the Biden ad wasn’t a one-off. As Warren later noted on Twitter, Facebook recently tweaked its policies to make its stance on false political content even more hands-off than before. “It is not our role to intervene when politicians speak,” a company VP wrote in explaining the move.
Attacks that play fast and loose with the facts may seem like the kind of hardball politics that’s gone on forever. After all, in 1828, Andrew Jackson’s campaign falsely accused President John Quincy Adams of pimping out an American girl to the Russian czar earlier in his career. But when voters make decisions based on false information spread virally to millions, the damage to the integrity of our elections is profound.
Think of it this way: We understand the harm done by voter suppression schemes that tell people the wrong location for their polling place or that the election is Wednesday not Tuesday, and the Brennan Center has helped draft legislation to crack down on them. There’s also the danger from “deep fakes” — manipulated images, spread online, that aim to falsely discredit or embarrass a candidate — a threat California recently aimed to tackle with a new law. Why should false facts aimed at affecting voters’ decisions be treated differently?
Or consider a different analogy: if advertisers make false claims about their own products or their competitors’, they can be fined by the Federal Trade Commission (FTC). That’s because we recognize that the free market can’t function effectively if consumers don’t have accurate facts — just as voters need accurate facts for free elections to work properly.
This isn’t just about Facebook. It shouldn’t be up to for-profit companies alone to decide which campaign messages can responsibly be aired and which aim to mislead voters. Instead, that should be done by an entity whose only goal is to further the public interest.
That’s why we need a neutral government regulator tasked with ensuring misinformation doesn’t undermine our elections. In my perfect world, this body would be empowered to block or punish false or substantially misleading campaign speech — whether in the form of campaign ads or comments by candidates and their backers. But the Supreme Court’s broad reading of the First Amendment makes that a nonstarter for the foreseeable future. Indeed, as of 2014, 27 states barred false political statements, but four of those laws have since been struck down. And state-level bans seem poorly suited to regulate campaign speech that, especially in a presidential race, is national in reach.
So for now, this body would function simply as an authoritative fact-checker, stamping “False” — or perhaps in some cases, a designation like “Unproven” or “Dubious”— on any political communication that merited it based on a careful, transparent investigation, just as health authorities stamp warnings on cigarettes.
That’s a role that appears to put it on much firmer constitutional ground than if it were authorized to actually block false speech. And it still falls well short of some measures adopted by other advanced democracies, including Canada, which criminalizes “knowingly making or publishing a false statement of fact in relation to the personal character or conduct of a candidate with the intention of affecting the result of an election.”
Of course, voters are deceived not only by ads that make flatly false claims, but also by broader attacks or storylines that are based on a false or misleading premise, even if no specific assertion is narrowly untrue. These kinds of made-up scandals can often be even more damaging than narrowly false statements, since the mainstream media has more trouble ignoring them. A prime example is the Biden-Ukraine story — in which Trump and his allies charge Biden had Ukraine’s top prosecutor fired in order to protect Biden’s son, even though the evidence shows Biden did no such thing — which despite being essentially false, may have done real damage to the former vice president’s campaign.
That’s why this body might also be authorized to declare such storylines broadly illegitimate. Yes, that would force it to make more subjective judgments about which attacks are fundamentally bogus and which are valid. But again, the FTC is authorized to go beyond narrow true or false determinations when considering whether an ad misleads consumers. Why should voters get less protection?
Perhaps the most obvious danger of a body like this is that it would be captured by one side. After all, giving Trump the power to upgrade his claims of “fake news” into official government rulings would be disastrous. So the issue of how its members would be chosen to ensure it stayed unbiased would be crucial. But that concern shouldn’t kill this conversation in its cradle. Perhaps the answer is to split membership between the two parties, or maybe it’s to try to ensure that commissioners are genuinely nonpartisan. But if states can create independent commissions to handle redistricting — an area that’s no less politically fraught — we shouldn’t assume it’s impossible to do the same here.
Of course, in the current political climate, plenty of highly engaged partisan voters will automatically view the decisions of a government panel — however fairly its members are appointed, and however transparent its decision-making —as illegitimate if the decision hurts that voter’s favored candidate. But having a claim officially declared false might still make an impression on some swing voters. More importantly, it could lead news outlets and fair-minded opinion-shapers to avoid amplifying the message, ultimately starving it of oxygen.
At the very least, it would establish the principles that false political information compromises fair elections and hurts the public and that the government has an interest in reducing its impact. Given the virtual Wild West environment that prevails today, that alone would be a step forward.
The views expressed here are those of the author and not necessarily those of the Brennan Center for Justice.
Zachary Roth is a fellow at the Brennan Center, a former national reporter at MSNBC and the author of The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy (Crown), which was the runner-up for the 2017 J. Anthony Lukas Prize awarded by Columbia Journalism School and the Harvard Neiman Foundation. He has written for the The New York Times, The Los Angeles Times, The Atlantic, The New Republic, Slate, Salon, and other outlets.