NO MORE POLITICAL ADS! WHY TWITTER’S DECISION TO BAN ALL POLITICAL AND CAUSE-BASED ADS IS REALLY OKAY

By: Jenna Hensel, Volume 104 Staff Member

“Confirm Judge Brett Kavanaugh!” said President Donald Trump in a political ad posted to Facebook.[1] This is one of many political ads posted on social media by politicians. Social media companies such as Twitter are not regulated by the government.[2] This means that unlike government entities, social media companies are able to construct and implement their own policies for moderating content on their platforms.[3] Recently, Twitter announced that they are banning all political ads on their platform, and it has caused an uproar.[4] This Post argues that Twitter’s policy to ban political ads is appropriate given the principles and statutory background of social media content moderation, and the reality that there is plenty of other room online for political ads to proliferate.

According to Section 230 of the Communications Decency Act, social media companies cannot be held liable for content posted by users on their websites.[5] This is because social media companies “cannot be treated as the publisher or speaker of any information provided by another information content provider.”[6] Thus, social media companies are not only able to moderate content as they choose; they are also immune from liability for anything users post on their websites.[7]

Additionally, although social media companies are not subject to the First Amendment due to Section 230, it is important to note that the First Amendment does not restrict social media companies such as Twitter from restricting users’ abilities to post content.[8] This is because constitutional free speech protections only apply when a person is injured by an action caused by the government.[9] In other words, there is no constitutional protection for actions taken by private corporations, such as social media companies.[10] Rather, when social media companies engage in content moderation by restricting users’ speech on their websites through rules on what posts are or are not allowed, social media companies are implementing those rules by their own doing.[11] For these reasons, social media companies have a wide breadth of discretion when it comes to content moderation and the extent they wish to engage in content moderation.

For example, social media companies moderate content to uphold First Amendment values and preserve advertising revenue. In fact, Vijaya Gadde, General Counsel of Twitter, spoke out by saying, “Freedom of expression means little as our underlying philosophy if we continue to allow voices to be silenced because they are afraid to speak up. We need to do a better job combatting abuse without chilling or silencing speech.”[12] Additionally, social media companies ban content that violates their content moderation policies in order to attract users to actively participate on their websites, creating more advertising revenue for their websites.[13] When users spend more time on social media websites, social media platforms’ advertising revenues increase.[14] Thus, social media companies aim to create websites that match user expectations so that users choose to spend more time on their websites.[15] For these reasons, social media companies enforce content moderation policies for users.

In light of these principles, Twitter has evolved its content moderation policies and procedures to ban all political ads from their platform.[16] Since Twitter is able to construct and implement its own content moderation policies, Twitter is able to construct and enforce its own definitions for prohibited content.[17] In other words, Twitter is not constrained by judicial scrutiny for regulating political speech;[18] generally, political speech is given the strongest protection and restrictions on political speech are judged under a strict scrutiny standard by the courts.[19] Additionally, as stated above, the First Amendment does not restrict social media companies such as Twitter from restricting users’ abilities to post content.[20] Thus, Twitter has defined “political content” as: “content that references a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome.”[21] Twitter developed its own definition for this prohibited content; hence, Twitter’s decision to update its content moderation policy by prohibiting political content is permissible.

Additionally, a second part of Twitter’s new policy is that Twitter is banning all “cause-based ads.”[22] Cause-based ads are ads that talk about topics related to politics such as the environment or the economy, and advocate for or against a specific political, legislative, judicial, or regulatory outcome.[23] Twitter has said that advertisers may post ads concerning these topics, but may not advocate for any specific outcome.[24] As stated above, Twitter is able to moderate content according to its preferences because it is a private corporation and defended by Section 230 from liability for issues concerning user content.[25] For these reasons, Twitter made appropriate choices in updating its content moderation policy.

Jack Dorsey, Twitter’s chief executive, stated that political ads had “significant ramifications that today’s democratic infrastructure may not be prepared to handle.”[26] Additionally, Dorsey also said that the ban would not “greatly affect” Twitter’s advertising revenue.[27] Although political speech is offered the strongest protection under the First Amendment, Twitter is allowed to preserve freedom of speech according to its terms.[28] Further, it is important to note that Twitter executives are able to implement content moderation policies they feel are appropriate.[29] Moreover, according to Dorsey’s statement, this decision will not negatively impact Twitter’s revenue stream to maintain a strong platform.[30] Therefore, this new policy will still allow Twitter to moderate content in pursuit of progress toward the goals of maintaining freedom of speech and preserving advertising revenue.

Furthermore, there are plenty of other social media websites for political ads to be posted and shared with users. First, Facebook has said that they will continue to allow political ads and permit politicians to run any claims.[31] In addition, Google is continuing to allow political ads to run on its platform.[32] Importantly, Twitter ads make up a small fraction of the financial total presidential candidates have spent on digital advertising, with more money going towards Google and Facebook ads.[33] This means that despite Twitter’s prohibition on political ads, political ads will continue to run online on other platforms, and Twitter’s ban on political ads will not have a significant impact on the use of them. Further, Twitter’s decision to ban political ads does not mean that politicians cannot utilize other platforms. Lastly, users can utilize other social media accounts if they wish to see and interact with political ads.[34]

Twitter’s policy to ban political ads may seem controversial and confusing, however Twitter is not breaking any rules. Additionally, Twitter’s ban on political ads does not impact the vast array of other social media outlets that may continue to allow political ads. It may be disappointing to some users that they will no longer see political ads on Twitter, but Twitter made a permissible decision. There is plenty of other online political material out there for users.

[1] Sheera Frenkel, The Biggest Spender of Political Ads on Facebook? President Trump, (July 17, 2018), https://www.nytimes.com/2018/07/17/technology/political-ads-facebook-trump.html [https://perma.cc/QV75-Z4EN].

[2] See Amy Kristin Sanders, Obscenity, Revenge Pornography, and Cyberbullying, in Social Media and the Law: A Guidebook for Communication Students and Professionals 182, 199 (2017).

[3] See id.

[4] Emily Stewart, Twitter is Walking Into a Minefield with its Political Ads Ban, Vox (Nov. 15, 2019, 3:00 PM), https://www.vox.com/recode/2019/11/15/20966908/twitter-political-ad-ban-policies-issue-ads-jack-dorsey[https://perma.cc/G3FC-AVKH].

[5] 47 U.S.C.S. § 230 (1996).

[6] 47 U.S.C.S. § 230(c)(1).

[7] See id.

[8] Valerie C. Brannon, Cong. Research Serv., R45650, Free Speech and the Regulation of Social Media Content 9 (2019).

[9] See Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972).

[10] See Hudgens v NLRB, 424 U.S. 551, 567 (1972).

[11] See Community Standards, Facebook, https://www.facebook.com/communitystandards/ [https://perma.cc/7FHM-Y3VJ] (last visited Mar. 22, 2020).

[12] Vijaya Gadde, Twitter Executive: Here’s How We’re Trying to Stop Abuse While Preserving Free Speech,Washington Post (Apr. 16, 2015, 5:05 AM), https://www.washingtonpost.com/posteverything/
wp/2015/04/16/twitter-executive-heres-how-were-trying-to-stop-abuse-while-preserving-free-speech/ [https://perma.cc/5ER8-MT62].

[13] Kate Klonick, Article: The New Governors: The People, Rules and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, 1647 (2018).

[14] Id.

[15] Id.

[16] Stewart, supra note 4.

[17] See Sanders, supra note 2.

[18] First Amendment: Freedom of Speech Political Speech, Constitutional Law Reporter,  http://constitutionallawreporter.com/amendment-01/political-speech/#Introduction [https://perma.cc/PVW3-4BST] (last visited Mar. 16, 2020).

[19] Id.

[20] See Brannon, supra note 8.

[21] Stewart, supra note 4.

[22] Id.

[23] See id.

[24] Id.

[25] See 47 U.S.C.S. § 230 (1996); Brannon, supra note 8.

[26] Kate Conger, Twitter Will Ban All Political Ads, C.E.O. Jack Dorsey Says, New York Times (Oct. 30, 2019), https://www.nytimes.com/2019/10/30/technology/twitter-political-ads-ban.html [https://perma.cc/U9VH-674J].

[27] Id.

[28] See Constitutional Law Reporter, supra note 18.

[29] See Sanders, supra note 2.

[30] See Klonick, supra note 13.

[31] See Conger, supra note 26.

[32] See id.

[33] See id.

[34] See Eric M. Strauss, Denise Martinez-Ramunod, & Alex Valiente, How This Teen Fell Into a World of Secret Sexting, Alcohol, and Drugs, AbcNews (May 16, 2017, 10:41 AM), https://abcnews.go.com/US/teen-fell-world-secret-sexting-alcohol-drugs/story?id=47425450 [https://perma.cc/Q3RZ-7GM] (describing how a teenager had multiple social media accounts including Instagram, Snapchat, Twitter, Vine, and Tumblr).