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

[Adam Bonin]

Well, I think we're talking about a few different things here:

With regards to website-as-publisher, as former Commissioner Smith knows as
well as anyone the media exception (as revised in 2006) applies: "Any cost
incurred in covering or carrying a news story, commentary, or editorial by *any
*broadcasting station (including a cable television operator, programmer or
producer), *Web site*, newspaper, magazine, or other periodical publication,*
including any Internet or electronic publication*, is not a contribution
unless the facility is owned or controlled by any political party,
political committee, or candidate, in which case.... "
https://www.law.cornell.edu/cfr/text/11/100.73

[I agree with Brad that it would be different if a media entity were not
acting in its press function role; if the LA Times told its news carriers
to also deliver a candidate's flyers, free of charge to the candidate, I
believe that constitutes an in-kind.]

ActBlue et al aren't publishers; they're vendors of credit card processing
services, fundraising conduit services, and the like. It's hard for me to
conjure why they shouldn't be able to freely choose their clients any
differently than a terrestrial political ad agency or fundraising firm.



Adam C. Bonin
The Law Office of Adam C. Bonin
121 S. Broad Street, Suite 400
Philadelphia, PA  19107

(267) 242-5014 (c)
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adam at boninlaw.com
http://www.boninlaw.com


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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