My PDF testimony, as well as the testimony of other witnesses is available. I also thought it would be interesting to post the text. I have commented separately on five proposals so I thought I’d split this up. My plan was to provide an impartial analysis of the proposals. I will, however, be focusing on non-obvious consequences. Some of these proposals have influenced my opinions, however I’ll try to separate them from the objective analysis.
[V.] Civil Rights Modernization Act
The bill, which would allow civil or criminal liability for the “target”, among others, will be included in this bill.[ed]Paid “advertisements”, which may be in violation of the law
- “(A. any Federal, State, and Local law that prohibits discrimination on the grounds of a protected status or class [i.e., actual or perceived race, color, ethnicity, religion, national origin, sex (including sexual orientation and gender identity), age, disability, familial status, pregnancy, genetic information, or citizenship or immigration status];”
- “(B), any Federal law administered by or enforced in whole or part by the Civil Rights Division of Department of Justice.
- “(C.) Any Federal, State or Local Law that prohibits the publication of false or misleading information in relation to an election to public office to stop voters casting their ballots, or prevent voters voting for their candidate.”
The act of targeting is using technology “to deliver, show or display a covered advert to any specific subset users who are part or have a protection class or status.”
Discriminatorily targeted advertising for jobs, housing, or the like would be covered under (A). And it would also potentially hold platforms liable (under (C)) for accepting ads that ultimately prove “false or misleading” in a way “intended … to prevent voters from casting their ballots or to prevent voters from voting for the candidate of their choice,” so long as the ads are targeted based on, for instance, age or familial status—or for that matter on citizenship status, in trying to focus on eligible voters.
It is possible that this provision regarding elections could prove to be dangerous. This puts platforms at risk for misleading information in ads. Many platforms don’t know much about specific elections or whether statements made about them are likely to cause confusion or be interpreted as misleading or false by future judges or juries. And if “misleading information intended … to prevent voters from casting their ballots or to prevent voters from voting for the candidate of their choice” includes information intended to Dissuade The voter is prevented from voting and/or from voting in a candidate’s favor (and this is not to trick them into voting at the wrong time or place).[10]Platforms could be even more vulnerable. Some jurisdictions have laws that ban falsifying statements regarding election campaigns. Lower courts disagree on the constitutionality of such statutes.[11]
The simplest way for platforms to avoid the risk of such liability is to require that any political ads as to which any question might arise—e.g., all political ads that criticize rival candidates and thus might be seen as including “misleading information intended … to prevent voters from voting for the candidate of their choice”—be run in a purely untargeted way (since the bill would only strip away immunity for allegedly false or misleading ads that are targeted). It is not clear if this will improve or unduly affect election-related discourse.
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[10] Check out Eugene Volokh, Are Douglas Mackey’s Memes Illegal?, Tablet, Feb. 9, 2021, https://www.tabletmag.com/sections/news/articles/douglass-mackey-ricky-vaughn-memes-first-amendment.
[11]You can find cases that uphold such statutes at Re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985). You can find the cases that struck them down here. Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016);281 Care Com. v. Arneson, 766 F.3d 774 (8th Cir. 2014); Commonwealth v. Lucas, 472 Mass. 387 (2015); State ex rel. Public Disclosure Comm’n v. 119 No. Comm., 135 Wash. 2d 618 (1998).