MICROTARGETED POLITICAL ADS: AN INTRACTABLE PROBLEM.

King, John M.

American democracy is facing a novel threat: the surgical delivery of polarizing and manipulative political ads. Modern marketing technologies give political campaigns the power to target voters in such a precise manner that citizens who live on the same street, or even in the same building, may see entirely different political content. And because campaigns keep secret the way they target their audiences, there is little opportunity for political rivals, journalists, or even more scrutinizing citizens to rebut mistruths. In effect, the marketplace of ideas-a foundational concept of First Amendment doctrine-has become so shattered and distorted that it no longer resembles a broad and competitive marketplace at all. Legislators recognize the dangers that microtargeted political ads pose, but they have not crafted a solution. Because First Amendment doctrine staunchly protects political speech and virtually prohibits the government from regulating or proscribing speech based on its content, Congress cannot enact legislation that bans or regulates microtargeted political ads. Such ads will continue to do harm, and the law cannot prevent this from happening. The law can, however, mitigate the damage. Mandated disclosures can give opposing campaigns, journalists, and voters the information they need to evaluate deceptive political ads and engage in remedial counterspeech. Thoughtful legislation that accounts for the capabilities of modern marketing technologies, takes inspiration from regulations in the digital advertising space, and respects First Amendment principles and jurisprudence, can put the marketplace of ideas back together.

POLITICAL advertising; JOURNALISTS; AUDIENCES; LEGISLATORS; POLITICAL campaigns

Boston University Law Review, 2022, Vol 102, Issue 3, p1129

0006-8047

Academic Journal