The Federal Election Commission (“FEC”) has promulgated extensive regulations requiring political advertisements to include disclaimers notifying viewers about who has paid for such ads. In certain situations where it would be impracticable to include disclaimers, the FEC provides exceptions, but how do these exceptions apply to the small advertisements commonly found on the Internet? Facebook recently provided its own answer to that question in a 14-page letter prepared by its lawyers, calling for the FEC to exempt political advertisements on the Facebook.com site from these disclaimer obligations. Ads on Facebook are limited to 25‑character headings with 135 characters of text, and generally take up less than one square inch of space on a standard laptop. With that in mind, Facebook has argued that those advertisements should fall under the “small items” and “impracticability” exceptions to the disclaimer rule, found in 11 C.F.R. § 110.11(f).
The FEC’s exceptions are designed to enable political advertisements on certain media in which the disclaimer would be so intrusive as to essentially defeat the purpose of the advertisement. For example, in a printed advertisement, the disclaimer must be “of sufficient type size to be clearly readable by the recipient of the communication” and “contained in a printed box set apart from the other content of the communication.” The FEC, recognizing the impracticality of making this disclaimer in certain situations, allows exceptions for “[b]umper stickers, pins, buttons, pens, and similar small items upon which the disclaimer cannot be conveniently printed,” as well as “[s]kywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” Facebook has argued that the type of advertisements used on its website should fall under both of these exceptions.
For the “small items” exception, Facebook cites an advisory opinion from 2002 in which the FEC declared that political ads sent to individuals via SMS messages, which by their nature are limited to 160 characters, were not required to include disclaimers. Acknowledging that even a short disclaimer such as “Paid for by Smith for Congress” uses 30 of the available 160 characters, and that this small amount of available space places the same limits on advertisers as those related to bumper stickers and buttons, the FEC concluded that the “small item” exception applied to SMS messages. In its letter to the FEC, Facebook argues that the exception should thus apply to its ads, which contain even fewer characters in their bodies than SMS ads, and further notes that, on most computer screens, its ads are smaller than campaign buttons. Facebook points out that the small size of its ads is a business decision that the company made to enhance the Facebook.com site, and that it should not have to make larger political ads to accommodate the disclaimer rule because “[t]he purpose of the ‘small items’ exception is to allow political committees to speak through mediums, like Facebook ads, that consumers actually use,” as opposed to larger ads that would disrupt the Facebook experience.
Facebook does not provide precedent for including its ads under the “impracticable” exception, but notes that the exception applies when “inclusion of a disclaimer would be impracticable in most, but not all, instances.” Facebook also notes that Congress has shown a “clear preference for less regulation of Internet activity,” further implying that its political ads should not be regulated.
As of this writing, the FEC has yet to respond to Facebook’s letter, although reports have indicated that the commissioners may address this issue at a future meeting. If the agency supports Facebook’s position, as the next election cycle gears up, we may see a new wave of “downsizing” by political advertisers who wish to remain anonymous.