“Why Banning Russian Facebook Ads Might Be Impossible”

I have written this piece for Politico magazine. It begins:

Lost amid the debate over whether Facebook can be trusted to police itself to stop Russian and other foreign interference in future U.S. elections or whether new legislation is necessary to accomplish this task is a potential insuperable roadblock to effective regulation: the conservative justices on the United States Supreme Court and their views of the First Amendment….

Soon after Citizens United, a foreign national named Benjamin Bluman, a Canadian lawyer who was then living in New York, brought suit arguing that he had a First Amendment right to spend 50 cents to print flyers at Kinko’s and distribute them in Central Park urging a vote for Barack Obama. A three-judge federal district court, citing the interest in self-government, disagreed with Bluman, upholding the foreign spending ban. The Supreme Court affirmed without issuing an opinion.

Bluman is the authority for the principle that a ban on foreign electioneering does not violate the First Amendment. But in a part of Bluman that has not been much noticed, the three-judge court construed the statute barring foreign election spending to apply only to express advocacy (“Vote for Obama”), not to issue advocacy (“Tell Hillary to show us her emails”). The district court held it had to read the statute this way thanks to another Roberts Court opinion, which held that reading the issue advocacy test broadly would violate the First Amendment. In other words, as the lower court understood the statute, Bluman legally could have spent millions of dollars promoting President Obama’s reelection effort, so long as he avoided the magic words of advocacy or the “functional equivalent” of express advocacy.

We don’t yet have the language of a Klobuchar-Warner bill that would apparently extend the definition of electioneering communications to cover foreign spending on Facebook and other digital media ads, but if that language is broad, the same conservative Supreme Court that brought us Citizens United could hold that the First Amendment prevents Congress from regulating any foreign spending on elections that is not the functional equivalent of express advocacy. The Court’s newest Justice, Neil Gorsuch, has already shown himself to be skeptical of campaign finance limits.

The result would be that any broader foreign spending ban would be wholly ineffective. For example, it appears that during the 2016 election, Russian-government backed advertising pushed Trump rallies in 17 cities in Florida and targeted immigration and same-sex marriage messages to voters in key Midwestern states. It also stirred up anti-Muslim sentiment and controversy over the Black Lives Matter movement. These ads likely would not be considered express advocacy or its functional equivalent, and therefore Congress might lack the power to ban them as the Supreme Court understands the First Amendment—even though they were purchased by foreigners.

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