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

[Steve Kolbert]

ActBlue <https://www.fec.gov/data/committee/C00401224/> and WinRed
<https://www.fec.gov/data/committee/C00694323/> are both federal political
committees registered with the FEC.

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On Fri, Feb 5, 2021 at 1:58 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> Twitter regularly charges 0 to all 300M+ users of its platforms and there
> is effectively zero marginal cost to Twitter to add another user.  So how
> is it making an in-kind contribution to candidates who happen to use its
> platform?  I don’t know if ActBlue or WinRed are incorporated, but if they
> are, since they only let candidates of one party have access to their
> sites, are they massively violating federal election law.
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Volokh, Eugene
> *Sent:* Friday, February 5, 2021 1:48 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Twitter deplatforming a candidate = an in-kind
> corporate contribution to rivals?
>
>
>
>                 I don’t know the answer to that with confidence, but I
> would think that something would depend on the particular terms of the
> forum.
>
>
>
>                 Content-neutral terms could certainly be enforced, I’d
> think.  But say a corporation provides a forum to all candidates but says
> that it won’t give the microphone to any candidate who expresses support
> for a corporate income tax, or who criticizes an ongoing war effort, or who
> expresses what the corporation views as transphobic sentiments.  I would
> think that such decisions based on a candidate’s ideology is precisely what
> the California rule would forbid.  Or am I missing something here?
>
>
>
>                 Eugene
>
>
>
> *From:* Thomas Collins <thomas.collins at azcleanelections.gov>
> *Sent:* Friday, February 5, 2021 10:44 AM
> *To:* Volokh, Eugene <VOLOKH at law.ucla.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Twitter deplatforming a candidate = an in-kind
> corporate contribution to rivals?
>
>
>
> Professor,
>
>
>
> Does the FPPC believe that a hosts refusal to give the mic 🎤 to a
> candidate at a forum who consistently violates the terms of the forum be
> making a contribution to others in attendance?
>
>
>
> Thanks!
>
>
>
>
>
> Thomas M. Collins
>
> Executive Director
>
> Arizona Citizens Clean Elections Commission
>
> 602-397-6362
>
> On Friday, February 5, 2021, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>
>                 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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