| After social media platforms decline to allow the unfettered distribution of an article planted by Trump associates, Republicans increase their rage towards these companies. |
Last week, at first, both Twitter and Facebook blocked their users from posting a very questionable New York Post article about the allegedly illegal and unethical business dealings of former Vice President Joe Biden’s son, Hunter Biden. Given that the genesis of the email and other communications on which the “story” is allegedly based are dubious in the extreme and reportedly come from the very ethically challenged Rudy Giuliani (especially in light of the clip from the new Borat movie) and Steve Bannon (currently under indictment for fraud), I won’t be linking to what is likely a Russian and/or Trump Campaign attempt to smear the Bidens. However, Facebook and Twitter restricted the posting and reposting this article has enraged many Republicans even further on the subject of alleged but unproven bias against conservatives.
Twitter stopped people from posting a link or a photo of the article, and when people tried, this warning came up: “[w]e can’t complete this request because this link has been identified by Twitter or our partners as being potentially harmful.” However, Twitter later reversed itself. CEO Jack Dorsey tweeted “[s]traight blocking of URLs was wrong, and we updated our policy and enforcement to fix…[and] [o]ur goal is to attempt to add context, and now we have capabilities to do that.” So, Twitter relented and allowed a related New York Post article on Hunter Biden’s alleged dealings in Ukraine to be posted but not the one pertaining to his alleged China dealings. Twitter also changed its policy after initially claiming it was blocking the story because it was hacked material that violated its Hacked Materials Policy. A Twitter official explained how its Hacked Materials Policy would be changed:
1. We will no longer remove hacked content unless it is directly shared by hackers or those acting in concert with them
2. We will label Tweets to provide context instead of blocking links from being shared on Twitter
Facebook took a slightly different approach. This social media platform restricted linking to the article, explaining it was still being fact checked. Facebook’s director of communications explained the platform’s approach in a string of tweets.
Yesterday, the Senate Judiciary Committee voted to issue subpoenas to Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey “to testify before the Committee regarding (1) the suppression and/or censorship of two news articles from the New York Post titled “Smoking-gun email reveals how Hunter Biden introduced Ukrainian businessman to VP dad” and “Emails reveal how Hunter Biden tried to cash in big on behalf of family with Chinese firm,” (2) any other content-moderation policies, practices, or actions that may interfere with or influence elections for federal office, and (3) any other recent determinations to temporarily reduce distribution of material pending fact-checker review and/or block and mark material as potentially unsafe.” Given the centrality of the false narrative that social media and technology companies are biased against conservatives, especially in relation to content moderation, it is no surprise that this committee decided to issue subpoenas. Firstly, Chair Lindsey Graham (R-SC) is fighting for his political life given that the much stronger than expected challenge he has faced for reelection. Secondly, two of the more vocal Republicans who have called out Facebook and Twitter serve on the committee (see below). And, thirdly, Graham has been keen to ensure his committee maintains its role on technology issues and is not eclipsed by the Senate Commerce, Science, and Transportation Committee, which is holding a hearing on Section 230 at month’s end with Dorsey, Zuckerberg, and Google CEO Sundar Pichai.
After the Senate Judiciary Committee’s vote, top Republicans on the House committee of jurisdiction called on the Democratic majority to hold a hearing with technology CEOs. House Energy and Commerce Committee Ranking Member Greg Walden (R-OR), Communications and Technology Subcommittee Ranking Member Bob Latta (R-OH), and Consumer Protection and Commerce Subcommittee Ranking Member Cathy McMorris Rodgers (R-WA) urged Chair Frank Pallone Jr (D-NJ) “to join with us to protect the integrity of our elections and stop the censorship of political speech.” They asserted “[i]t’s long past time for the Energy and Commerce Committee to compel the testimony of the CEOs of the powerful tech platforms.” This statement follows a letter earlier in the week from Walden, Latta, McMorris Rodgers and other Republicans to Pallone “to request the Committee hold a hearing on social media censorship and its deleterious effects and that you issue invitations to the CEOs of Twitter, Facebook and Google to testify.” They argued “[i]n the event these companies refuse an invitation to testify we request the Committee expeditiously hold a business meeting to authorize subpoenas to the CEOs of Twitter, Facebook and Google to compel their testimony before the Energy and Commerce Committee.”
However, Pallone seems unlikely to comply given the tenor of the joint statement he issued with Communications and Technology Subcommittee Chair Mike Doyle (D-PA) on Federal Communications Commission Chair Ajit Pai’s announcement that the agency will move forward on a Section 230 rulemaking. Pallone and Doyle remarked:
- Chairman Pai’s decision to start a Section 230 rulemaking is a blatant attempt to help a flailing President Trump. The timing and hurried nature of this decision makes clear it’s being done to influence social media companies’ behavior leading up to an election, and it is shocking to watch this supposedly independent regulatory agency jump at the opportunity to become a political appendage of President Trump’s campaign.
- From the start, Republicans have used the Section 230 debate to threaten social media companies when they remove or flag disinformation and extremism on their platforms – all because of some baseless fantasy grievance that the internet is biased against conservative views. Their approach translates into a defense of online extremism and foreign countries’ disinformation campaigns, which is a baffling and dangerous position for lawmakers to take.
Senator Josh Hawley (R-MO) claimed in a letter to the Federal Election Commission (FEC) that Twitter and Facebook have given the Biden Campaign an in-kind contribution by blocking the article in violation of federal campaign finance law. Hawley, however, was careful to couch his language in language suggesting that Twitter and Facebook’s actions (which he terms suppression) were in-kind contributions instead of outright asserting they are. The reason for this is that Hawley’s legal reasoning is, shall we say, novel.
While Hawley quite accurately quotes the law on what constitutes a contribution (“[a] “contribution” includes “anything of value . . . for the purpose of influencing any election for Federal office”), he is apparently unaware of the regulations promulgated by the FEC to explicate gaps and unaddressed issues in the statute. FEC regulations shed further light on the issue at hand. Notably, in 11 CFR 100.71, the FEC’s regulations provide extensive exceptions to what is a contribution and provide “[t]he term contribution does not include payments, services or other things of value described in this subpart.” One such exception is found in 11 CFR 100.73, “News story, commentary, or editorial by the media,” which makes clear:
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 costs for a news story.
One of the essential elements for such an action to be a contribution is control or ownership. I am fairly certain the Biden Campaign neither owns nor controls Twitter or Facebook. For if they do, they have been colossally inept in allowing President Donald Trump and his partisans to spread widely misinformation and lies about mail-in voting to name one such subject.
Moreover, the FEC and federal courts have long recognized the “press exemption” to what might otherwise be considered in-kind contributions or expenditures in violation of the law. This exemption includes websites and the internet. It would seem that Facebook and Twitter were acting in ways much more similar to how the traditional print media has. It is telling that Hawley and others have not pilloried the so-called liberal media for looking askance at the New York Post’s story and not taking it at face value to the extent they have covered it at all. Therefore, it seems like any value the Biden Campaign may have derived from social media platforms using 47 USC 230 in moderating content on their platform is not an in-kind contribution.
Senator Ted Cruz (R-TX) also wrote Twitter and Facebook, accusing the platforms of “‘obvious and transparent attempt’ to influence the November election.” Cruz called the decisions “hypocritical” considering the platforms decisions to allow users to share less well-sourced stories. Cruz argued:
- Twitter has apparently decided to preemptively censor this report. Twitter is not only prohibiting users from sharing this story on their own accounts, it is prohibiting the New York Post itself from posting its own content. Twitter well-knows its incredible ability to influence public dialogue by promoting some stories while suppressing others, and it has plainly decided that the American people should not be seeing or discussing this particular story, which could significantly influence voters’ views of candidate Biden.
- Facebook apparently decided, almost immediately upon the article’s publication, to preemptively and affirmatively reduce dissemination of this reporting. As the company has already, publicly stated, it has “reduc[ed] its distribution on our platform.” The company made clear that, nevertheless, “this story is eligible to be fact checked by Facebook’s third-party fact checking partners.” It would appear, then, that the decision was made to limit the reach of the New York Post reporting before any determination had been made, in the first instance, about its factual accuracy.
This is fairly standard Republican rhetoric on social media platforms that will undoubtedly be in full effect when the Senate Judiciary Committee convenes with Dorsey and Zuckerberg.
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Michael Kans 