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Abstract

Foreign disinformation operations on social media pose a significant and rapidly evolving risk, particularly when aimed at American elections. We must urgently and effectively address this form of election interference. This Article examines potential responses to those risks, through a review of the unique characteristics, both practical and legal, of political advertising on social media platforms. This Article analyzes proposed legislative responses to foreign disinformation, noting that no single proposed law to date adequately addresses the threats and challenges posed by foreign disinformation. This Article considers the election law landscape in which the proposed laws would operate. It evaluates the proposed legislative responses for judicial review resilience, with a focus on the First Amendment challenges to regulating political advertisement microtargeting—the use of data mining and algorithms to microtarget particular audiences. Some scholars have argued that a fundamental change in how we understand and therefore regulate social media in society is necessary to prevent the abuse of the First Amendment. This Article, however, approaches the problem from the position that the U.S. Supreme Court is highly unlikely to abandon its extremely robust interpretation of the First Amendment to impose broad restrictions on online platforms. The Article argues that an appropriate response to the threat of disinformation must be consistent with robust protections for political speech and with the First Amendment theory of a “marketplace of ideas.” This Article then reviews the role that various actors—from state and federal agencies to social media platforms, and academics and researchers—can play in crafting a “whole of society” response to disinformation operations.

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