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

[Volokh, Eugene]

                Great questions; here are my tentative thoughts:

                1.  I think something might depend on whether the policies are viewpoint-neutral.  An analogy from the world of 501(c)(3)s:  A 501(c)(3) may not electioneer, but speaking invitations to candidates that “provide[] an equal opportunity to participate to political candidates seeking the same office” are allowed.  I’m inclined to say that, “We will invite all candidates, but if they go over the allotted time they won’t get invited again” would likely be permissible; “we will invite all candidates, but if they use vulgarities they won’t get invited again” would likely be permissible as well; but “we will invite all candidates unless they support taxes on nonprofits / support gun control / express sentiments we view as racist” would be impermissible, because that isn’t really an equal opportunity to all candidates.  Likewise, I think that non-501c3s’ providing an equal opportunity for all candidates isn’t a contribution, but what counts as providing an equal opportunity would depend on whether the rules for participation are viewpoint-neutral or viewpoint-based.

                2.  I think Twitter’s choosing to push some stories to some users, whether pursuant to algorithm, human choice, or a mix, is itself constitutionally protected speech under Citizens United.  I’m inclined to doubt, though, that Twitter’s decision to remove an account, or to block tweets posted by a user to his followers, would likewise be constitutionally protected (though I realize there’s a debate on that).

                Eugene

From: Stephanie Singer <sfsinger at campaignscientific.com>
Sent: Wednesday, February 10, 2021 12:05 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?

Two questions from Eugene Volokh, in two different emails:
  So as a result, if Twitter deletes A’s account but keeps B’s, that really is a thing of great value to B.  Should that be part of the analysis?  Or should we say that what Twitter gives B is still the same service that Twitter gives all its other users (except A and a few others), at the same rate, and therefore it shouldn’t count as a contribution?


Does it matter whether the deletion of the account follows from a violation of Twitter’s policies to which both A and B are subject?


                I agree that Twitter’s “pushing” its preferred stories is “carrying ... commentary ... by [a] Web site” acting as a “periodical publication.”

                But the question is whether this means that Twitter’s hosting others’ material on its own computers visible only to those people who got to see that page – acting as platform rather than pusher -- is also covered; and I’m not sure that’s indeed covered by “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.”

The algorithm determining which stories get pushed to whom uses data available to Twitter about who clicks on what and when. That data is proprietary and is likely Twitter’s greatest asset. So could one argue that all Twitter’s costs associated with that data (which might well be Twitter’s entire budget) are part of the cost of pushing?

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