FEC Says Twitter Can Regulate Speech Without Violating Election Law: How Does This Fit into the Free Speech Debate?

September 27, 2021

Three weeks before the 2020 presidential election, Twitter briefly restricted users from posting an article about Hunter Biden. Conservative activists filed a formal complaint with the Federal Election Commission (FEC) alleging that the restriction was an illegal in-kind contribution to the Biden campaign. Last week, the FEC dismissed the complaint in a unanimous decision, reasoning that Twitter acted in their commercial interests.

The Commission has long held that commercial decisions cannot be considered a political contribution. Two commissioners noted that social media moderation is not an issue that the FEC is able to handle: “Congress, and not this Commission, is the proper forum for the debate over the regulation of social media companies.” Another FEC commissioner reasoned that the issue of whether Twitter used its platform to support a candidate is irrelevant because of the right to control their platform’s content, falling under the media exemption. Either way, the FEC made clear that this was not a violation of election law.

This decision empowers social media companies to control the content on their platforms regardless of electoral consequences. Still, the issue will not be decided solely within election law, as Trump has sued Twitter, Facebook, and Google for similar reasons. The suit, to be successful, will likely need to strike down Section 230 of the Communications Decency Act, which protects social media companies from liability in moderating their platforms. Section 230 states that social media companies cannot be held liable for restricting access to material they deem to be objectionable. Trump attempted to gut this law at the end of his administration.

Even though this statute is a safe harbor for social media, there are additional First Amendment concerns. Trump has argued that social media restrictions have impaired his ability to communicate as a political figure. Given that courts traditionally grant a broad view of freedom of expression for political candidates, social media may face ongoing scrutiny if Trump announces his candidacy for the 2024 presidential election.

The issue of social media’s restriction on speech is not limited to discussion in the courts. In a Senate hearing on the topic last October, Senate Republicans accused social media companies of politically motivated bias and suppression. Senator Ted Cruz, a Republican from Texas, directed his remarks towards Twitter’s CEO, Jack Dorsey: “Who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?”

The issue is also not limited to the federal government. Last week, Texas Governor Greg Abbott signed a bill targeting social media companies for censoring users because of their political viewpoints. A similar bill, signed by Florida Governor Ron DeSantis, was blocked by a federal judge for violating the companies’ First Amendment rights to prohibit content against their standards. The argument that the First Amendment protects individuals against social media companies is fundamentally flawed. Constitutional protections against the government do not extend to private corporations. While Twitter is free to moderate its own content as it wishes, the government is restricted from telling Twitter what to. The First Amendment protections, for example, do not apply to Twitter blocking Trump but rather Trump blocking others. Thus, in Knight First Amendment Institute v. Trump, a federal appeals court held that Trump engaged in unconstitutional viewpoint discrimination by restricting some user’s access to his Twitter account.

For now, Thomas’ sole concurrence stands against precedent and the FEC’s unanimous decision that social media is free to regulate speech on its platforms without electoral consequences.

When the Supreme Court dismissed the case as moot, Justice Thomas’ concurring opinion attempted to fit social media into the common carrier precedent, suggesting that social media is more like a telephone company that passively carries the speech of others. This reading of common carrier precedent is not a popular one, as his lone opinion may suggest. Rather, it represents a fringe view popular among partisan conservatives that misapplies precedent. Thomas also suggests that lawmakers could treat social media platforms as places of public accommodations, like the public accommodations clause of the Civil Rights Act. If Thomas’ argument were to carry weight with the ideologically conservative court, they would need to ignore a long history of upholding social media’s right to police troubling content by Section 230.

For now, Thomas’ sole concurrence stands against precedent and the FEC’s unanimous decision that social media is free to regulate speech on its platforms without electoral consequence.

Pearson Cost

Pearson Cost attended Gettysburg College and majored in Political Science. In law school, he is the President of UNC’s American Constitution Society and is interested in a career at the intersection of law and public policy.