[EL] Twitter deplatforming a candidate = an in-kind corporate contribution to rivals?
Smith, Bradley
BSmith at law.capital.edu
Fri Feb 5 12:07:54 PST 2021
The question is, is a web platform a publisher? I tend to think that analogy doesn't work very well. Again, it seems more to me like a printing company allowing some campaigns to use its printing machinery for free, but not others; or a broadcaster that allowed one candidate to use the studios and equipment for free to make ads, but not others. This might be fine if we allowed all corporations to do this. But it seems very odd to allow a handful of extremely large, powerful corporations to make these large in-kind contributions, but not others.
The content published--blogs, comments on websites, etc. is covered under the press exemption; but I would think not the means of publishing.
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
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Paul Ryan <PRyan at commoncause.org>
Sent: Friday, February 5, 2021 2:59 PM
To: Adam Bonin <adam at boninlaw.com>; 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?
** [ This email originated outside of Capital University ] **
The FEC’s 2006 E&J for this regulation<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fsers.fec.gov%2ffosers%2fshowpdf.htm%3fdocid%3d776&c=E,1,vBig2dZ1ayy5K8NmAQ0OeQzHXr_uFDsrz0gxG9lY7x-5ghz3YoR9-uwSzyAHJHc92vo5UI32kHDbzW_QF-e8vjhc9sGorlJLUxsidP0g7ihw8zFEH8e9MyzOF98D&typo=1> seemingly supports Adam’s interpretation, deemphasizing any need for an entity to operate like a traditional news outlet in order for be eligible for the media exemption. The FEC wrote:
“The Commission is also clarifying that the media exemption protects news stories, commentaries, and editorials no
matter in what medium they are published. Therefore, the Commission has added ‘website’ to the list of media
in the exemption and is also adding ‘any Internet or electronic publication’ to address publication of news stories,
commentaries, or editorials in electronic form on the Internet.” (emphasis added)
And in the related footnote, the FEC explained further, quoting Adam’s client at the time, if I’m remembering correctly:
“The terms ‘website’ and ‘any Internet or electronic publication’ are meant to encompass a wide range of existing and developing technology, such as websites, ‘podcasts,’ etc. See e.g., Testimony of Markos Moulitas Zuniga, Federal Election Commission Public Hearing on Internet Communications at 27–28 (June 28, 2005) (‘‘It is really truly impossible for any one person to grasp the scope of Internet communication technologies* * * [O]ff the top of my head, I could think of * * * blogging, e-mail, instant messaging, message boards, Yahoo groups, Internet Relay Chat, chat groups, podcasting, Internet radio, Flash animations, Web video, Webcams, peer-to-peer, and social networking software. Then, there is Grokster, * * * And the new Apple operating system has these little applications called widgets * * * and Microsoft promises to do the same. All of these technologies have political applications, obviously, yet they are vastly different.’’).”
Paul Seamus Ryan | Common Cause | Vice President, Policy & Litigation
Office: 202-736-5716 | Mobile: 202-262-7315 | @ThePaulSRyan
805 Fifteenth Street NW, Suite 800|Washington, DC 20005
From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Adam Bonin
Sent: Friday, February 5, 2021 2:51 PM
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?
There aren't many FEC AOs interpreting the media exception for online activity - see https://www.fec.gov/data/legal/search/advisory-opinions/?type=advisory_opinions&search=100.73&q=100.73&ao_category=F<https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.fec.gov%2Fdata%2Flegal%2Fsearch%2Fadvisory-opinions%2F%3Ftype%3Dadvisory_opinions%26search%3D100.73%26q%3D100.73%26ao_category%3DF&data=04%7C01%7Cpryan%40commoncause.org%7Ce64fd624c47c404a180108d8ca0f877b%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C637481515345396545%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=j8nKk5O1jQh%2F6H37HX%2FWGhvXKF2k%2Fvck%2BuHo8rjKAU0%3D&reserved=0>.
I read "Web site" as standing as a separate category from the "any Internet or electronic publication" language, which only modifies "other periodical publication."
Adam C. Bonin
The Law Office of Adam C. Bonin
121 S. Broad Street, Suite 400
Philadelphia, PA 19107
(267) 242-5014 (c)
(215) 827-5300 (f) (new)
adam at boninlaw.com<mailto:adam at boninlaw.com>
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On Fri, Feb 5, 2021 at 2:27 PM Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
I appreciate Adam’s point, but I think the “press function role” is what keeps Twitter from being covered by this. “Web site” seems to me to refer to a web site “periodical publication,” like the broadcaster, newspaper, magazine, etc. And I don’t think that Twitter as platform is itself acting as a “publication” the way broadcasters, newspapers, magazines, etc. are.; indeed, it’s acting more like a newspaper delivery service that Adam mentions below than the newspaper itself. Is there any caselaw on this?
Eugene
From: Adam Bonin <adam at boninlaw.com<mailto:adam at boninlaw.com>>
Sent: Friday, February 5, 2021 11:08 AM
To: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Cc: Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Twitter deplatforming a candidate = an in-kind corporate contribution to rivals?
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<https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.law.cornell.edu%2Fcfr%2Ftext%2F11%2F100.73&data=04%7C01%7Cpryan%40commoncause.org%7Ce64fd624c47c404a180108d8ca0f877b%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C637481515345406501%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=yczh7ctqirCvBcpahAPd%2Bl6wG0aGDpHr15oeKWtw0eE%3D&reserved=0>
[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)
(215) 827-5300 (f) (new)
adam at boninlaw.com<mailto:adam at boninlaw.com>
http://www.boninlaw.com<https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.boninlaw.com%2F&data=04%7C01%7Cpryan%40commoncause.org%7Ce64fd624c47c404a180108d8ca0f877b%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C637481515345416463%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=43a2gmR7VT6U5LSyZ5WN924X6%2F8n0p6vtzu5pJK%2BQLw%3D&reserved=0>
On Fri, Feb 5, 2021 at 1:58 PM Pildes, Rick <rick.pildes at nyu.edu<mailto: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<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<mailto: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<mailto:thomas.collins at azcleanelections.gov>>
Sent: Friday, February 5, 2021 10:44 AM
To: Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto: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<mailto: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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