The agency has determined, unanimously, that Twitter’s brazen actions did not constitute election interference.
Though acknowledging they have “little expertise” in the area of social media moderation and lack the institutional competence to manage such questions, the FEC’s commissioners held that Twitter was just following its established rules, not trying to influence voters. Twitter, the FEC declared, is a “press entity” with a First Amendment right to the content it promotes or suppresses, and thus exempt from FEC’s campaign finance regulations. As one FEC commissioner put it, “Twitter is a publisher.”
Labeling Twitter a press entity, or as a publisher, is a slippery twist for a company which regularly goes out of its way to claim it is neither. Moreover, if Twitter is truly a media company, like movie studios or The New York Post, then it is an incredibly privileged one. Thanks to Section 230 immunities, it is not subject to the same rules as the rest of the mere mortals in the media landscape. For one thing, it’s not liable for the insults, lies or libel posted on Twitter.
If the FEC’s ruling makes one thing clear, it is how insufficient our current legal architecture is for managing the role these social media companies play in our politics and beyond.
Far from being simple speech platforms, Twitter, Facebook, Google, Amazon, and Apple manage huge swaths of commerce, act as massive digital advertising firms, are now the primary areas of news and information gathering, and the market access point for millions of businesses.
Yet when confronted with legal responsibility in any of these areas, our porous legal framework allows the tech platforms to choose which hat suits them depending on the regulatory spat, only to shapeshift into something else to evade capture in a different forum. Twitter, today a publisher exempt from FEC regulation, will tomorrow be an interactive computer service or a mere conduit — inscrutable and, no doubt, legally immune.
The laws which purportedly govern these tech platforms — Section 230 and antitrust, in particular — are, as currently constituted, inadequate to capture the full breadth of how these companies engage across sectors. Simply appealing to the existing legal framework as a means of checking the power these companies have amassed is a fool’s errand.
Congress must take these pre-Internet laws and update them for the post-Internet reality. This task becomes more urgent by the day.
Rachel Bovard is the senior director of policy at the Conservative Partnership Institute and the senior tech columnist for The Federalist.