The Committee for Justice (CFJ) and Americans for Tax Reform (ATR) joined Americans for Prosperity (AFP) in filing comments in response to the Federal Election Commission's (FEC) Notice of Proposed Rulemaking on Internet communication disclaimers.
Re: Proposed Rule on Internet Communication Disclaimers and Definition of'' Public Communication" (FEC Notice 2018-06)
Dear Mr. Stipanovic: Americans for Prosperity ("AFP") submits the following comments in the above referenced Notice of Proposed Rulemaking.
Americans for Prosperity (AFP) is a 501 (c)(4) non-profit, non-partisan social welfare organization that recruits, educates, and mobilizes American citizens in support of the policies and goals of a free and open society at the local, state, and federal levels. We aim to empower citizens across the country and to remove barriers to opportunity. With our 36 state chapters, 3.2 million activists and thousands of dedicated volunteers, we believe we are the largest and most influential grassroots organization in the nation.
AFP's interest in this rulemaking is two-fold. First, we believe that freedom of speech is a necessary and integral part of a free and open society, and any regulation of First Amendment activity should be extremely limited in scope. Second, the proposed rule would have a burdensome impact on our First Amendment protected grassroots activity.
Founded in 2002, the Committee for Justice (CFJ) is a nonprofit, nonpartisan organization dedicated to promoting the rule of law, the Constitution's limits on the power of government, and its guarantees of individual liberty including the First Amendment right to free expression. CFJ is concerned with the preservation of these protections as technological advances challenge existing legal principles and, in this case, with the continued vitality and rapid growth of the internet made possible by such protections.
Express advocacy communications on the Internet are already regulated by this Commission and require disclaimers, therefore we do not believe a new rule is necessary. However, to the extent that the Commission plans to adopt a new rule, AFP believes that the Commission should adopt an alternative that provides maximum flexibility to those exercising their freedom of speech.
1. THE INTERNET AND THE FIRST AMENDMENT MAKE A GREAT TEAM
Similar to how the Gutenberg press transformed how knowledge was disseminated in the Middle Ages, so has the Internet allowed for an endless amount of information to be accessible at our finger tips, as well as the ability to spread a message at the click of a button. The Internet is the information tool that has equalized the ability for anyone and everyone to engage in politics. It has lowered barriers to entry in the marketplace of ideas in ways that have fundamentally transformed the United States. Technologies that allow for more speech should be encouraged, not stifled. The answer to speech that is distasteful or offensive is more speech, not less.
Speech flourishes in the United States because of our First Amendment, which has distinguished the regulation of speech in the United States from the rest of the world, where governments have enjoyed comparably greater authority to censor and circumscribe it. The explicit, written, entrenched protection of freedom of speech in our Constitution has placed it outside the reach of regulators to alter it. The United States is an outlier in this respect, allowing our speech - in the form of our print, broadcast, and online media - to proliferate to a greater extent than that of our peers. It is in large part because of the Internet that American brands, culture, and even the English language have come to dominate the global marketplace. And while all cogent speech has intrinsic value, the Founders clearly believed that the speech most deserving of protection was speech relating to political matters. They recognized that government officials face the greatest temptation to regulate speech that is made about them, and therefore that the right to criticize or praise the government would be most at risk unless the power to regulate it were placed safely out of its reach, in the Constitution. In this respect, nothing has changed. New technologies are merely means, not ends. The fundamental principle at stake today is the exact same principle contemplated by the Founders. The government shall make no law abridging the freedom of speech.
2. THE COMMISSION SHOULD EMBRACE TECHNOLOGY
The Commission's solicitation of comments offers two alternatives. AFP does not support either. Neither option fully embraces the flexibility of technology to advance disclosure. If the Commission is determined to issue a new regulation, AFP supports the attached hybrid of Alternatives A & B. Instead of the difficulty of analyzing when an "adapted disclaimer" would apply and what an "adapted disclaimer" could be, we suggest allowing flexibility for the technology to best display the disclaimer for the speaker and provide easy disclosure for the consumer.
Ordinary Americans would immediately recognize the risk of getting this approach wrong by watching any TV commercial for a prescription drug. After a brief description of the product and its intended benefits, a narrator in these commercial delivers a rapid, lengthy, distracting list of potential side effects, while stock footage of dogs, flowers, or happy couples on the beach plays in the background. These disclaimers are a feature of nearly all such commercials, often occupying the majority of the slot. Another example can be found in the terms and conditions attached to new software updates for popular devices. Though these lengthy disclosures are the result of regulations with the good intention of providing more information to consumers to enable them to make informed decisions, the inevitable result is that they are ignored. The actual result is the opposite of the regulator's intent. The consumer is overloaded with information, and any useful details are lost in the noise.
Some ads on Facebook and Google, on the other hand, showcase a more effective approach. Users can click small, recognizable, and clearly marked icons on advertisements and be prompted with questions like, "Why am I seeing this?" Clicking the prompt reveals an explanation, for example, that the ad appeared on their device because Company ABC wanted to reach users between the ages of 18 and 35 in the District of Columbia who are interested in health and fitness. These explanations often ask the user whether the information was useful, enabling companies like Facebook and Google to innovate better and more effective ways to communicate this useful information to their users. In striking contrast to the cumbersome disclosures required of prescription drug commercials and software agreement terms and conditions, which gradually become useless as they are increasingly ignored, the above model based on competition and innovation in the marketplace is getting more useful and effective every day.
We urge the Commission to welcome current and future technologies by adopting a rule that provides sufficient flexibility to comply with the disclaimer requirement, instead of a static and subjective requirement that may quickly become irrelevant due to technological advances. We recommend the Commission adopt the attached rule text that combines elements of Alternatives A & B, with amendments (strikeouts and underlining indicate deleted and added text, respectively). Technology should be a friend to the Commission as it considers adopting a new regulation.
In regulations concerning the First Amendment, the scales should always be tipped in favor of encouraging more speech, not providing more hurdles for the speaker. For the reasons discussed above, should the Commission decide to adopt a new rule, we respectfully ask the Commission to consider the modified version of Alternatives A and B attached to these comments. We appreciate the opportunity to submit these comments and request to speak at the Commission's upcoming hearing to further discuss this rulemaking.
Victor E. Bernson, Jr.
Vice President and General Counsel
Americans for Prosperity
The Committee for Justice
Americans for Tax Reform
FEC, Notice of Proposed Rulemaking on Internet Communication Disclaimers and Definition of "public Communication," 83 Fed. Reg. 12864 (Mar. 26, 2018).
 We agree with the arguments and justifications laid out in the Comment submitted by Freedom Partners Chamber of Commerce, proposing the hybrid of Alternatives A & B. 3 DocuSign Envelope ID: C5BFDD68-8012-4F8D-BEFF-FE097DOB6C43.