FOOL ME ONCE: REGULATING “FAKE NEWS” AND OTHER ONLINE ADVERTISING ABBY K. WOOD* AND ANN M. RAVEL† A lack of transparency for online political advertising has long been a problem in American political campaigns. Disinformation attacks that American voters have experienced since the 2016 campaign have made the need for regulatory action more pressing. Internet platforms prefer self-regulation and have only recently come around to supporting proposed transparency legislation. While government must not regulate the content of political speech, it can, and should, force transparency into the process. We propose several interventions aimed at transparency. First, and most importantly, campaign finance regulators should require platforms to store and make available (1) ads run on their platforms, and (2) the audience at whom the ad was targeted. Audience availability can be structured to avoid privacy concerns, and it meets an important speech value in the “marketplace of ideas” theory of the First Amendment—that of enabling counter speech. Our proposed regulations would capture any political advertising, including disinformation, that is promoted via paid distribution on social media, as well as all other online political advertising. Second, existing loopholes in transparency regulations *. Associate Professor of Law, Political Science, and Public Policy at University of Southern California (
[email protected]). †. Senior Fellow, Maplight Digital Deception Project and former Chair of the Federal Election Commission and California Fair Political Practices Commission. This article has benefited from insights from Rebecca Brown, Chris Elmendorf, and Rick Hasen. Daniel Brovman, Samantha Hay, Justin Mello, Brandon Thompson, and Caroline Yoon provided fantastic research assistance. Teresa Delgado and Alex Manzanares joyfully created the time and space required to focus on the project.