At first blush, the Supreme Court’s decision in Packingham v. North Carolina seems quite relevant to campaign finance. Echoing its 1997 decision in Reno v. American Civil Liberties Union, the Court said: “Social media offers relatively unlimited, low-cost capacity for communication of all kinds.” That observation suggests a tension between Internet use, and the Court’s persistent holdings that only avoiding corruption and its appearance can justify the general regulation of political giving and spending. The Court applied intermediate scrutiny to strike down North Carolina’s restrictions on social media use by registered sex offenders. At the very least, the Court’s decision would seem to bode ill for the enforcement of prolix disclaimer requirements against space-limited Internet communications, and for state and local laws that fail to provide the same allowances for personal Internet activity as Federal Election Commission rules do.
Still, there are two reasons to be guarded about Packingham’s future effect on campaign finance:
First, “undisciplined dicta” on First Amendment issues—like that which Justice Alito’s Packingham concurrence ascribes to Justice Kennedy’s majority opinion—can have a particularly hard time affecting future outcomes in campaign finance. McIntyre v. Ohio Elections Commission is a good example. Involving an Ohio woman who distributed leaflets on a school levy without a state-required disclaimer, McIntyre is the classic “don’t try this at home” campaign finance decision. Justice Stevens’ majority opinion was a paean to anonymous speech, citing Twain, Voltaire, Eliot, Dickens and the Federalist Papers. It found Mrs. McIntyre’s leaflets to be “the essence of First Amendment expression … No form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.” Yet, more than twenty years later, McIntyre has had virtually no effect on disclaimer requirements at the federal and state level. Seven years after McIntyre, Congress expanded the federal disclaimer requirements, and they remain undisturbed. Perhaps in both McIntyre and Packingham, the Court was moved by the drama of state power being used against a lone, individual speaker of normal means—and is less easily moved by the case of a party, PAC or candidate.
Second, as Bob Bauer recently argued on Just Security, the avoidance of corruption is not always the only state interest at stake when the Internet is used to influence elections. Some may have thought it pretentious for Justice Kennedy to declare that “the Cyber Age is a revolution of historic proportions,” and that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.” And yet Russia’s deployment of “pro-Kremlin social media actors” in the 2016 election ironically proves the Justice’s point. It remains to be seen how last cycle’s experience will affect future attempts at enforcement and regulation, and its later judicial evaluation.