After a failed attempt last year to bring internet content under state laws regulating electioneering communication, the General Assembly is having another go at it this session. H700, sponsored by Holly Grange (R – New Hanover), Pricey Harrison (D – Guilford), David R. Lewis (R – Harnett) and Zack Hawkins (D – Durham) would bring digital political communications under the same set of laws that currently cover political TV, radio, mail, and phone bank communications.
What the law would do is inhibit free speech and provide an additional hurdle for people who want to challenge the political status quo. It also would also put a unique burden on people who want to communicate online.
One problem with last year’s version of the digital electioneering bill was that it was simply impossible to enforce, as my colleague Leah Byers pointed out: “Just imagine the manpower it would take to monitor all of social media like Facebook, Twitter and even paid Google ads for ‘electioneering’ communications.”
The new version of the bill includes an attempt to get around that problem through self-regulation. It requires that anyone who pays for an internet communication to “submit that qualified digital communication to the State Board along with the disclosure information required.” The State Board of Elections would maintain all those communications as a public record. No other forms of political communication have that burden.
The proposed changes are unlikely to catch digital communications made by fake social media accounts (Russian or otherwise). The regulations would not apply to “independent expenditures aggregating less than one thousand dollars” (163A-1477(1)). Those running fake accounts would avoid enforcement by routing communications through several accounts while limiting the expenditures by any one account to less than a thousand dollars. Significantly dropping the minimum amount spent before the law comes into play would get local citizens who simply want, for example, to boost a Facebook post about a local city council or schoolboard race, caught up in the law. That would be an unacceptable burden on free speech.
H700 is part of a larger trend across the country of states imposing greater regulations on digital communications. The chilling effects of those laws on internet communications in other states have fallen disproportionately on first-time candidates, especially challengers to entrenched incumbents:
“The real losers are first time candidates and underdogs who need to do more communicating to get their message out, and the winners are the entrenched candidates and interests,” said Patrick McGill, a digital strategist at the Democratic firm Blueprint Interactive….
“If you’re a first-time candidate in a local race, you don’t have the time to figure out how this all works, or what platform is going to let you advertise. You need easy access to these platforms, and they’re not making it easy for you right now,” he said.
As with other forms of regulation, the burdens of complying with H700 would disproportionately affect those with less experience and fewer resources. In this case, those most affected would be challengers.
As the General Assembly considers regulating digital communications, legislators should carefully consider both the limits of H700 and its consequences (unintended or otherwise).