During the 2016 Presidential Election, agents of the Russian government exploited loopholes in campaign finance legislation as they bought and placed political ads on social media outlets like Facebook, Twitter, and Google. According to the Brennan Center for Justice, a non-profit group that promotes democracy, Russian agents, who disguised themselves as American citizens, promoted paid advertisements on social media platforms that reached over 126 million users on Facebook, posted over 131,000 messages on Twitter, and uploaded over 1,000 videos on YouTube. In all, Russian agents spent at least $400,000 on political advertising during the 2016 election to sow discord in American politics and exploit racial divisions in the United States to influence election outcomes.
Current regulations under the Bipartisan Campaign Reform Act (BCRA 2002) require television and radio stations require candidates to have a disclaimer in an ad that identifies themselves. Furthermore, broadcasters must keep records as to who purchased ads and no foreign entities may purchase ads that mention political candidates. However, while television and radio possess regulations for who can place political ads, there are no such requirements for ads placed over the internet. Consequently, foreign agents can post as anonymous users to interfere in US elections.
In response to the Russian interference in US Elections, United States Senators Mark Warner, Amy Klobuchar, and Lindsey Graham proposed the 2018 Honest Ads Legislation. The Honest Ads Act would have required any social media site with over fifty million users to verify and keep records of the identity of individuals or groups that placed advertisements on the site, if those advertisements were political in nature. Further, it would have required social media sites to make reasonable efforts to ensure that foreign entities do not purchase political ads to influence the US electorate.
Although Congress has not yet enacted the Honest Ads Act, assume that they will before the 2022 misterms and 2024 President Election. This means social media sites with over fifty million users will need to verify and keep records of the identity of individuals or groups that place advertisements on their site, if those advertisements are political in nature.
If a social media site such as Facebook or Twitter were to challenge the law on first amendment grounds, how would Justice Antonin Scalia use his conception of “originalism” to think about the Honest Ads Act and its relation to the First Amendment. Though Justice Scalia no longer sits on the Supreme Court, his thinking on Originalism remains highly influential as a method of constitutional interpretation and legal decision-making. When the First Amendment was ratified in 1791, there was no internet, there were no social media sites, and there was no electronic communication of any type. But there was communication taking place between humans in all sorts of other ways and there was politics, publishing, and advertising. How would an originalist view the constitutionality of the Honest Ads Act.
In a well-written post of no more than five hundred words, address the following questions regarding the First Amendment and the so-called Honest Ads Act described above.
First, when an originalist, of the type embodied by the late Justice Scalia, looks at any provision of the constitution—including an amendment, like the First Amendment—what are they attempting to determine about that provision or amendment?
Second, in attempting to determine whether the proposed law here (the Honest Ads Act) could survive a First Amendment challenge, what types of questions would an originalist like Justice Scalia ask?
Third, in attempting to determine whether the proposed Honest Ads Act could survive a First Amendment challenge, what would differentiate the approach of an originalist like Justice Scalia from that of Justice Breyer or someone else committed to the view that the constitution is a “living” document? Here, you can draw on my analysis of what it means for a federal judge to embrace the view embodied by the idea of the “living constitution.”
Finally, whose approach to constitutional interpretation—that of Justice Scalia or that of someone who believes in a “living constitution”—do you find more compelling and why
