[EL] Twitter deplatforming a candidate = an in-kind corporate contribution to rivals?

[Smith, Bradley]

I don't know all the FPPC rules that well, but as a matter of federal law, I'm inclined to think it is campaign finance 101.

For example, imagine if the L.A. Times said to a campaign, "you can use our publishing equipment to produce newsletters and other print materials for your campaign, no charge."

But when another candidate appeared, the Times said, "no, we don't agree with your political platform, so you may not use our publishing machinery."

That would clearly be an illegal corporate contribution. Nor could the Times get around that by saying, "well, we let all candidates use our facilities, but subject to the terms of use. Those terms of use limit the exposition of candidate views we don't like."

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Volokh, Eugene <VOLOKH at law.ucla.edu>
Sent: Friday, February 5, 2021 1:30 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Twitter deplatforming a candidate = an in-kind corporate contribution to rivals?


                Dear colleagues:  Someone suggested this theory to me, and I wanted to look into it.  A quick search suggests that the California FPPC, for instance, says that “providing a forum to a candidate without charge is considered an in-kind contribution. However, we have also advised that where a forum is made available to all candidates for the same office, no contribution results.”  Likewise, as I understand it, corporations may help sponsor candidate debates, but only if they are structured in an evenhanded way.  Would the same logic apply to Twitter allowing one candidate to remain on the platform, but banning another (even applying facially nonpartisan but viewpoint-based criteria)?



                I assume that Twitter, Facebook, and the like would not be covered by the media exemption, at least as to their hosting services, since they aren’t “any broadcasting station, newspaper, magazine, or other periodical publication.”



                I realize that there’s a separate question whether Citizens United would protect such decisions by Twitter (which may turn of various factors, including whether for constitutional purposes hosting a candidate’s Twitter account is treated as an independent expenditure or a coordinated one).



                Eugene
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