The House of Representatives is considering HB 1065, Digital Communication in Elections.  The bill was heard yesterday in the House Elections and Ethics Committee. Committee members had many questions, agreed the whole issue and details of implementation are confusing. As Rep Michael Speciale said, social media has unique qualities different than radio and TV. Bill sponsor Rep. Pricey Harrison argued we should go ahead and try this for the 2018 election and work out any problems later. As we know, government doesn’t usually self-correct once a wrong path has been taken. The bill  barely passed by a 12-11 vote.  It has been fast tracked to be heard on the floor today.

Nowhere is free speech more important than in elections. The US Supreme Court has made this clear over and over. The John Locke Foundation has major concerns about crossing the threshold to regulate free speech on the internet for the first time. This is not a short session issue and should be considered only after considerable and careful study.

The issue addressed in HB 1065 is too broad. This bill is not limited to campaign finance transparency, which applies to express advocacy to elect or defeat a candidate. The bill applies to the already gray area of “electioneering communication,” which includes simply mentioning an elected official by name within a certain period of time when the official is also a candidate, to all “digital communication” (speech, content) on the internet.

HB 1065 chills speech. The burden of compliance is on the individual. The individual must determine if he or she falls under an exemption, at risk of being criminally guilty of a misdemeanor, if he or she is mistaken. This threat in and of itself, plus the cost of hiring a lawyer to comply or defend themselves, would have a chilling effect on free speech. For example, if an individual or a voluntary group spends time, and any money, to promote their own content, or distribute a traditional published news story they think more people should hear about, then they are subject to government regulation and possible criminal prosecution.

This bill would undoubtedly have unintended consequences. Once this threshold is crossed, there is a realistic risk that a future legislature will extend this bill to enlarge the regulation of digital communication/speech/ content on the internet. Once passed, once the precedent is set with this new law on the books, lawmakers could continue to extend the regulation of the internet in the future.

Free speech is a big deal. Any efforts to control or regulate it warrants much more careful study and consideration. The provisions of this proposal are premature at best and overreaching and prohibit the right to free speech at worst. Disclosure and transparency is good, when it’s done right. The General Assembly should take the time to get it right and not try to rush it through in the last days of the short session.