Robert Yablon, Political Advertising, Digital Platforms, and the Democratic Deficiencies of Self-Regulation, 104 Minn. L. Rev. Headnotes 13 (2020).
Amid ongoing concerns about foreign electoral interference and fake news, digital platforms like Facebook, Google, and Twitter have been rolling out new political advertising policies for the 2020 election cycle. These emergent policies address what sort of ads are permissible, who can run them, how particular audiences can be targeted, and what disclosures and disclaimers must be made. Collectively, the policies highlight the extent to which platforms have become active regulators and powerful gatekeepers of modern political discourse. They also raise a host of questions about the relationship between digital governance and the law of democracy.
This Essay aims to draw attention to the rise of platform self-regulation of political advertising and to encourage inquiry into its implications. In future work, scholars can and should debate the merits of particular measures, scrutinize platforms’ implementation and enforcement efforts, and consider the systemic consequences of these self-regulatory activities. As a first step, the Essay zooms out and identifies an overarching process-based concern. Platforms often invoke democratic values to justify their political advertising policies. Yet their ostensible efforts to promote and safeguard democracy lack any real democratic imprimatur. Platforms have not adopted their policies through open, participatory processes, and in at least some instances, their choices appear to prioritize the interests of political professionals over the preferences and autonomy of platform users. The Essay concludes with some tentative suggestions for addressing these democratic deficiencies.