The last two presidential election cycles have brought increased attention to the extent of misinformation – and outright lies – being peddled by political candidates, their surrogates, and others who seek to influence election outcomes. Given the near ubiquity of this speech, especially online, one might naturally assume that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections.
Digital political advertisements have become an increasingly important tool for political candidates and committees, yet existing federal laws governing advertisements focus primarily on traditional mediums of communication. Currently, the Federal Election Commission (FEC) does not impose a disclosure requirement on online political advertising in the same way that the agency requires sponsorship disclosures for political advertising on television and radio.
There also are no federal laws regulating false statements in online political advertisements. Federal agencies like the Federal Trade Commission (FTC) have “truth in advertising” laws that target false or misleading speech in advertisements, but those laws apply only to advertisements affecting “commerce,” which the FTC has interpreted as limiting its jurisdiction to regulate political advertisements.
To fill these regulatory gaps, some states have enacted new legislation or amended their existing election laws by focusing on two broad areas: (1) increasing transparency by imposing sponsorship disclaimer and recordkeeping requirements on advertisers and (2) policing the content of election-related speech by imposing liability for certain types of misleading or harmful statements communicated to voters.
We cover both of these areas on the following pages: