The mob invasion of the capitol demonstrates the danger of fake news and propaganda. Online publishers have carte blanche to spread disinformation, and it’s harming people and democracy.
The first amendment protects publishers and their falsehoods, as it should. Now is not the time to meddle with The Constitution.
But what if we could regulate the ad-tech industry that funds the lies?
False and misleading content is surrounded by, and funded by, advertising. Because there’s no consequence to ad-tech for helping spread lies, they don’t care where their ads appear as long as they get eyeballs.
What About Free Speech?
But the advertisements, unlike publishers, aren’t protected by the first amendment. The content of ads is regulated: they can’t falsely claim a product will cure cancer, they can’t lie about mortgage rates. It’s not a perfect system, but in the end this is a true statement: A business can’t say whatever it wants in the same way a person can.
What if advertisers were not only told “You can’t lie inside this box on the page”, but also “You’re on the hook if these pages lie“? Congress would be expanding existing consumer protection laws.
The infrastructure exists: ad networks already see what’s going on. They’re the ones matching advertisers with publishers, both good and bad. They control the flow of money, they know who advertises where, and how many times stories and ads are seen, enabling the monetization of fake news in the process.
What would happen if those ad networks were fined for matching advertisers with publishers that spew harmful fake news? They’d immediately funnel their advertisers to legitimate and responsible publishers whose journalists fact check and print retractions, rewarding those publishers with billions of dollars in advertising that’s currently supporting harmful false news.
And because ad-tech and advertisers are not publishers, we wouldn’t be limiting anyone’s first amendment rights. Publishers could still say whatever they want if they find a way to pay for it. Fake news wouldn’t go away, but it would be rarer.
Should Congress Act?
I asked Dr. Augustine Fou, who knows well the dark side of ad-tech: “Yes, ad-tech should be regulated in a way that reduces both fraud and the rewards of looking the other way. Hate speech sites thrive and grow because they now have a way to make money via digital advertising… The unchecked spread of disinformation online, funded by digital ads, has translated directly into real world harm, as seen in events of the recent weeks.”
Next I turned to Vanessa Otero, who works tirelessly to help us understand how our news is biased. I asked if ad-tech could be made liable for funding disinformation, and she was less certain it’s possible: “I think publishers would be able to argue that this is an attempt to circumvent their first amendment freedoms of the press. I think the solution [indeed] lies in the ad-based financial system, but I think this will likely be a more voluntary ‘marketplace of ideas’ implemented-solution by brands and consumers; more like self-regulation.”
In my mind, regulating ad-tech is an urgent and reasonable path to fixing a dangerously broken news industry. We’re clearly at an inflection point in the reliability and responsibility of news publishing, and great harm is being done. Something needs to change. Fast.
The thing that changes is not going to be — and shouldn’t be — the Constitution. But in my opinion, it can be — and should be — the ad-based financial model that is presently rewarding bad actors who hurt journalism and democracy.