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Volume 108, Issue 7


Political Advertising on Free Streaming Sites: Conflicts with First Amendment and Exploring Viability of Regulation

Pilar Gonzalez Navarrine

J.D., Cornell Law School, 2024; B.A., Washington University in St. Louis, 2018.

8 Jan 2024

When broadcast TV first became a staple in the American household, it probably seemed unlikely that fifty years later, its hold on the American public would lessen in favor of other types of media. However, for years now, users have relied on online news—whether websites, social media sites, or streaming sites—instead of cable and broadcast networks. According to a Nielsen report, streaming viewership in July of 2022 exceeded cable and broadcast viewership for the first time.

For the past few years, users have turned to paid services like Netflix and Hulu, but due to rising inflation in 2022, many users are choosing to cut many of these expenses. Instead, users are turning to ad-supported streaming sites such as Pluto TV, Vudu, and Tubi. Many of the broadcast giants own these streaming sites: for example, Fox Corporation owns Tubi, while Viacom owns Pluto TV. These platforms have seen tremendous growth in the last few years. Tubi had 33 million monthly active users at the end of 2020, and 51 million by the end of 2021, with a 40% year-over-year increase in total viewing time and a record of 3.6 billion hours watched. Meanwhile, Pluto ended 2019 with over 64 million active monthly users, and over $1 billion in ad revenue.

Users are not the only ones focking to streaming platforms. Political advertisers are diversifying their ad investments, faced with growing public distrust of social media advertising and new privacy rules that affect ad efficacy. As a result, political advertising on social media is declining. For example, in the frst half of 2022, a midterm year, a political advertising firm saw a 1,500% increase in ad spending on streaming sites compared to the first half of 2020, a presidential election year.

The growth of these sites is remarkable but also a cause for concern. These streaming sites are starting to encroach on the role of cable and broadcast networks in Americans’ daily lives. These sites act like—and are owned by—broadcast networks in terms of providing news and entertainment, but they offer the same detailed ad targeting as social media sites. For example, whereas everyone viewing a broadcast channel will see the same ads, users viewing the same channel on a streaming site may receive different ads based on targeted demographics (like age, gender, interests, etc.). This leaves streaming sites halfway between social media and television—they act like television networks, which the Federal Communications Commission (FCC) regulates, but provide the same ad targeting as social media sites, which neither the FCC nor the Federal Trade Commission (FTC) can regulate. This puts streaming services in a regulatory void, with no real guidelines on speech, much less political speech.

Unrestricted growth of streaming platforms also conflicts with the ideals and doctrines that underlie the First Amendment. Courts have explained that a basic rationale underlying the First Amendment is that less regulation will lead to a “marketplace of ideas” where the truth will emerge. Courts have also expressed support for the doctrine of counter speech, which states that the remedy to falsehoods and allegations is more speech, not enforced silence. An example of this doctrine in practice is the Equal Time Rule, which Congress created in the 1930s. The Equal Time Rule requires that if a broadcast network provides air time for one candidate, the broadcast network must provide air time to a competing candidate at a similar time slot, to allow the competing candidate to counter allegations or untruths. These rationales and doctrines are present in many of the key opinions that make up the Supreme Court’s jurisprudence on the First Amendment, which Part I will discuss in more depth.

The evolving media landscape is weakening these basic First Amendment rationales and doctrines, as politicians can target misinformation ads to a specific part of the population, and the other affected politicians may not be aware of such an attack and may not be able to respond to the same targeted audience.

To reconcile the growth of streaming platforms with the basic doctrines underlying the First Amendment, this Note focuses on the viability of two potential solutions to the erosion of counter speech in the advent of free streaming sites. First, this Note explores the viability of enforcing an Equal Time Rule on these free streaming sites. Second, this Note explores the viability of requiring free streaming sites to create a publicly available database about political ads, including messaging and targeted audience, to allow other candidates to respond.

This Note proceeds in four parts. Part I explores various media types that are vehicles for political speech and provides an overview of First Amendment scrutiny of regulation and existing FCC political speech regulations across these various media types. Part II focuses on First Amendment scrutiny of disclosure legislation, existing disclosure rules across media types, and the growing movement to regulate speech on the Internet and social media platforms. Part III provides a more in-depth analysis of free streaming sites and ad targeting, highlighting how this practice undermines the doctrine of counter speech and basic First Amendment tenets. Lastly, Part IV puts forth the two proposed solutions: an Equal Time Rule for streaming sites, and a publicly available database on each streaming site disclosing candidate ads. This Note argues that while it is not clear whether an Equal Time Rule for streaming sites would survive judicial scrutiny under current Supreme Court jurisprudence, there are certain key attributes of free streaming TV that merit re-examination by the Supreme Court. The second proposal is more likely to succeed due to existing Congressional will, acquiescence from Big Tech, and its emphasis on disclosure rather than regulation. To best understand the challenges in regulating political speech on free streaming sites, it is necessary to understand some key doctrines underlying the First Amendment—namely, the “marketplace of ideas” and counter speech doctrine. It is also necessary to examine the level of protection that the Supreme Court affords speech across different media types and how these frameworks have shaped existing legislation and FCC regulations of political speech across various media types.

To read this Note, please click here: Political Advertising on Free Streaming Sites: Conflicts with First Amendment and Exploring Viability of Regulation.