Inside Augusta

Bill seeks to limit Mainers’ free speech within 60 days of an election

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Maine’s Veterans and Legal Affairs Committee is holding a public hearing Wednesday on LD 1988, “An Act To Prohibit the Distribution of Deceptive Images or Audio or Video Recordings with the Intent to Influence the Outcome of an Election,” sponsored by Sen. Rebecca Millett of Cumberland. The public hearing is scheduled for 9 a.m. in Room 437 of the State House.

LD 1988 would limit free speech by prohibiting individuals from publishing or distributing “materially deceptive audio and visual media” within 60 days of an election with the intent of influencing the outcome of the election. Under the bill, materially deceptive audio and visual media is defined as:

“an image or an audio or video recording of a candidate’s appearance, speech or conduct that has been intentionally manipulated in a manner that would cause a reasonable person: (1) To mistakenly believe that the image or audio or video recording is authentic; and (2) To have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.”

Altered audio and video content would require a disclaimer that plainly states the audio or visual has been manipulated. These provisions do not extend to satire or parody content.

For videos, the disclaimer must appear for the duration of the video in a font size no smaller than the largest font used in the video, if any other font appears. For audio, the disclaimer must be read every two minutes for clips longer than two minutes in duration.

If only LD 1988 were assigned LD number 1984. This Orwellian bill makes you scratch your head and wonder if your elected officials have ever heard of the Constitution or read the Bill of Rights.

While using materially deceptive audio and visual media to influence an election is undoubtedly harmful to the public’s interest in fact-finding and understanding the policy stances of candidates for public office, it’s hard to see how the government is well-equipped to handle this particular problem.

To start, the language of LD 1988 is largely subjective. For example, who determines whether images, audio or videos are considered satire or parody? Must another disclaimer be published with the audio or visual content being distributed?

An additional concern is the requirement to include a disclosure statement on materials within 60 days of an election. What entity is fit to determine whether a reasonable person has a fundamentally different understanding or impression of expressive content in a manipulated audio or visual representation when compared to its original, unaltered version? This legislation poses far more questions than it answers and will create many more problems than it will solve.

Moreover, the bill allows candidates to seek injunctive relief if objectionable content is posted, as well as receive monetary damages. LD 1988 opens the door for litigious campaigns against those who do not include the disclosure on their content. As a result, candidates at every level would attempt to recover general or special damages when they see questionable or objectionable content posted about them. We should not allow our elections to become more litigious.

Further, LD 1988 undoubtedly violates Mainers’ First Amendment rights. Individuals, committees, firms, partnerships, corporations, associations and organizations can share content freely, regardless of whether it is accurate or not. It is ultimately up to consumers of that content and the platforms by which it is distributed to determine how it is delivered and interpreted. 

Social media sites such as Facebook, Twitter and Instagram should be the entities that lead the fight to educate the public on the effects of false content and misinformation. Facebook works with third-party fact checkers to flag posts, further educate users and allow them to decide which sources to trust. All media platforms could and should use this approach to inform their users of misinformation.

The best way to fight misinformation is with more accurate information — not government-enforced bans on specific speech. 

About Adam Crepeau

Adam Crepeau is a former policy analyst at Maine Policy Institute.

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