The First Amendment Protects Advertisers, Too

In the days since the assassination attempt on former President Donald Trump that left one rallygoer dead and two critically injured, companies like X are making money on ads that are running next to content promoting vitriolic conspiracy theories. Advertisers do not know their brands are associated with these messages, and websites are profiting from the clicks and views. It is all perfectly legal.

The Global Alliance for Responsible Media (GARM) is the main group working to address this issue. GARM is an industry association representing a majority of the world’s major advertisers which came together in response to the brand safety crises the advertisers were experiencing. Last week, political pundit Ben Shapiro railed against the effort at a House Judiciary Committee hearing targeting GARM. In written testimony before the Committee, Shapiro claims the group’s brand safety standards concerning "harassment," "misinformation," or "hate speech" are “subjective” and “highly partisan” and calls on Congress to investigate “censorship cartels like GARM.”

At this critical moment when political violence is on everyone’s mind, it is important to remember that – for all political stripes – the internet, our primary information system, is broken. The media industry’s business model, which is based primarily on ads, is failing. It’s ushering in chaos and uncertainty — but we can fix it.

For five years, I have been working to build new sustainable standards in digital advertising to help ensure a better internet for all. My colleague Nandini Jammi and I co-founded Check My Ads in 2021, the Adtech industry’s first watchdog. Adtech refers to the tools and software that help advertisers place ads on the internet. Since then, our team has broken major stories about the advertising industry's ties to hate groups. Our advocacy has forced Google to change its ad policies and, in turn, cut off a source of revenue for disinformation grifters.

Brands don’t want to be associated with ideas and activities that cause violence, distrust, or social damage. If their display ad shows up on a website that causes harm (like a laundry detergent ad showing up by an ISIS training video), they consider that a brand safety issue. However, different brands have different thresholds for brand safety. So, a group of them created GARM, an industry-led association to help set standards for brand safety levels.

GARM works continuously to make sure its guidelines are reasonable to major advertisers. I know this because my organization has aggressively pushed them to set standards faster. And for years, they have pushed back. ‘This is a process,’ they continued to say. ‘We have to make sure that our members are accounted for. We have to carefully make sure the language is right for everyone.’

Prominent voices like Ben Shapiro want you to think that if a brand chooses to avoid sponsoring a website, the website’s First Amendment rights are being violated, and it is being censored. That’s not how the First Amendment works, and that’s not how business works. Forcing brands to sponsor all websites is laughably anti-free speech.

You can say whatever you want on your website, but you shouldn’t be surprised when an entire industry overwhelmingly agrees they do not want to be associated with content that vilifies trans people, women, Black people, immigrants, and climate scientists. Being associated with bigotry is a bad look for brands.

GARM exists because the advertising system that powers the internet is failing. Advertisers have too little control over their campaigns, and the tech platforms in charge of most of the digital ad space are forcing brands to be in places they don’t want to be. My organization has long criticized GARM for being slow and, at first, for not using clear enough language. But they exist because brands don’t have more say in where their ads are placed online. Building a coalition of brand representatives was the only logical solution to give these companies some agency in a marketplace dominated by a handful of big tech platforms.

Under the current framework, companies that purchase digital ads more often only receive high-level campaign reports. This data is not enough. GARM and many others have been working towards transparency for years. Check My Ads is actively writing legislation for California, New York, Ottawa, and Brussels to help advertisers receive full legal access to discrete data about every ad and refunds if ad placements violate their brand safety guidelines.

For decades now, advertisers have been losing control, news publishers have lost revenue, and the rest of us remain annoyed by ads we don’t want to see. Adtech is a business running into a recurring problem: these companies thrive when no one can see what they’re doing. We need to change that.

Ben Shapiro has the right, protected by the First Amendment, to say what he wants online, and advertisers have the right to keep their ads away from it.