2019 Republican Lawyer of the Year, former FEC Chair, and RNLA Board of Governors member Lee Goodman appeared on CNBC earlier this week to discuss the unsuccessful effort by the Biden campaign to have Facebook remove a Trump campaign ad it claimed was inaccurate. Mr. Goodman summarized the law applicable to campaign ads:
Well there is a legal overlay to those editorial decisions across media. For example, broadcast media cannot censor candidate speech under the Communications Act. They must carry and they must disseminate an advertisement by a candidate, and they are afforded liability protection, particularly for defamation, when they do. Cable casters, such as CNBC, they have editorial rights over the ads that they run and they also do not have the legal protection against defamation, so they have a little more of a proactive approach to regulating what they disseminate in paid ads and do not.
On the internet, it is different. On the internet, Facebook has editorial control over what it posts and doesn't post--both free posts as well as paid ads--and they have immunity protection under section 230 of the Communications Decency Act. So the editorial decisions are drawn not only by the editorial choices of the various media platforms but the legal liability.
Mr. Goodman then praised Facebook for taking a neutral approach and allowing free discourse and political debate with regard to candidate speech:
[Facebook doesn't] want to be the arbiter. They don't want to take sides in these political debates, and their stated policy, I think, is fair. When it is candidates' direct speech, whether it is free posts on their webpages on Facebook or whether it is paid advertising, they are going to allow the people and the other politicians and the press, just like we're discussing it here--they're going to let the political process be the arbiter of truth and falsity, especially where the speech is direct speech by a candidate to the American people. . . .
Cable programmers have editorial standards and they are allowed to apply those standards to the ads that they run, unlike broadcast. Facebook, however, just in the area of candidate advertisements, and solely candidate advertisements, they are taking a hands off approach and they say we aren't going to referee truth or falsity, opinion vs. fact, candidate vs. candidate debates.
Regarding the Trump campaign ad in question, most media companies aired the ad (ABC, NBC, CBS, Fox News, MSNBC, YouTube, Twitter, and Facebook aired it, while CNN did not) and it is not remarkable in the history of political ads, but there is such a fevered effort to "get" Trump that the Democrats are now trying to censor him from speaking. They are attempting to impose the new Democratic narrative as a cultural orthodoxy, demanding the media fall in line. In this instance, at least, the media (aside from CNN) are refusing to do so and Facebook should be commended for applying its neutrally written policy in a neutral manner (sadly, this is not always the case with social media and tech companies).
Mr. Goodman has been a thought leader on how campaign finance laws and other regulations should apply to modern technology. He has been a leader in the effort o maintain First Amendment protections and free discourse in the modern digital age. He will be honored as the 2019 Republican Lawyer of the Year at a reception on Wednesday, November 13, in Washington, DC. More information and tickets are available here.