Compared to other forms of advertising, there are few restrictions placed upon online advertisements. Is this acceptable, or should we seek additional policy changes? Here are a few options we have available when considering how the First Amendment might regulate online ads:
Option 1: Unrestricted Commercial Speech
The concept of commercial speech arose from a 1942 Supreme Court decision, Valentine v. Chrestensen. Since then, commercial speech rights have expanded to the point where corporations have similar free speech protections as U.S. citizens when it comes to the First Amendment.
In an online context, unrestricted commercial speech would likely mean that platforms hosting advertisements (such as Google or Twitter) decide what they believe is acceptable to advertise on their websites, with no external regulations coming from the government. On one hand, this could be advantageous because profit-seeking corporations have an incentive to avoid public backlash, which means they would likely avoid hosting advertisements for socially unacceptable products and services.
On the other hand, this option allows corporations full control over what advertisements consumers will or won’t see, which could lead to unnecessary censorship of certain political views or targeting children with advertisements, as YouTube was recently caught doing.
Option 2: Let the Public Decide
Democracy is a complicated process, but there are many avenues through which American citizens can make their voices heard. When it comes to online advertisements, public outrage against certain companies or platforms has prompted other corporations to pull their ads from various platforms like YouTube and Facebook. For instance, in 2017, YouTube lost millions of dollars after advertisements were shown alongside videos promoting terrorist activity and hateful speech.
There have also been Change.org petitions from members of the public demanding change from advertisers. While many corporations may choose to overlook any public outcry against them on social media or on Change.org, the visibility of public protests on petition sites can be useful for enacting changes to online advertising norms without the need for governmental intervention.
Option 3: Incremental Regulations from the Government
This approach to online advertising regulations is already happening right now. Through the Federal Trade Commission, the government regulates online advertising and other forms of speech, though currently there are fewer laws designed for Internet-based ads in comparison to traditional forms of advertising like print, radio and television. For example, barely any regulations exist for online campaign advertisements, while the Federal Communications Commission (FCC) regulates offline political advertisements.
Should online advertisements be subject to the same rules as print, radio and television advertisements? Perhaps this will be the case in the future, but for now, it remains largely uncharted territory for the marketing world, in which corporations dictate what they’ll allow or disallow. It’s ultimately up to us as consumers to utilize our First Amendment rights to speak out in favor or against unrestricted commercial speech online.
