Twitter recently announced that it would ban all political ads, a plan that took effect on November 22nd. Both campaign and issue ads are affected by this ban. Before Twitter’s decision, Joe Biden’s 2020 presidential campaign asked Facebook, Twitter, and Youtube to take down misleading ads that were posted by the Trump campaign, concerning Biden’s relationship with the Ukranian government. Facebook rejected the Biden campaign’s request and refused to take down the Trump campaign’s misleading ads. Facebook’s head of global elections policy, Katie Harbath, argued that the decision was made concerning the protection of freedom of expression, and that it is not Facebook’s responsibility to fact check ads through a third party. Facebook believes that as a platform they are only responsible for relaying information regardless of accuracy under the Communications Decency Act of 1996. However, Twitter took on the role of a publisher in the company’s choice to ban political ads. As a publisher, Twitter can censor content because Twitter is responsible for all content published by a third party. Twitter CEO Jack Dorsey stated, “This isn’t about free expression, this is about paying for reach. And paying to increase the reach of political speech has significant ramifications that today’s democratic infrastructure may not be prepared to handle.” Twitter’s ban on political ads puts pressure on other social media companies to decide whether to act as a platform or a publisher.
Social media companies can be classified as platforms or publishers. Platforms permit and distribute communication while publishers curate content. As a platform, social media companies cannot censor content, including misinformation, under the Communications Decency Act of 1996. Section 230 of the Communications Decency Act of 1996 provides “immunity from liability for providers of an interactive computer service who publish information provided by others.” The purpose of the act is to protect free speech. In Zeran v. America Online, an unknown AOL user allegedly defamed Ken Zeran, and Zeran sued AOL for defamation. The Court of Appeals for the 4th Circuit ruled the Communications Decency Act protected AOL from being held liable for what a third party published. It can be argued that the inability to censor misinformation as a platform influenced the outcome of an election as seen in the 2016 presidential election. Misleading political ads played a major role in Russia’s efforts to interfere with the election The tradeoff is companies are not held liable for slanderous content to protect free speech.
In contrast, publishers can censor certain content, as they are held liable for slanderous content published. Twitter acts as a publisher to have the ability to censor content and prevent the spread of disinformation in political processes. Dorsey argues the ban on political ads prevents the unfair level of targeting compared to other mediums. Mari-Lynn Poskin, a first-time Democratic candidate for the Kansas House claims Facebook’s role as a platform allowed for Russian interference in the 2016 election. However, some argue that acting as a publisher to ban political ads put challenger candidates with less name recognition at a disadvantage, and limits a campaign’s free political speech. The Supreme Court has illustrated in several cases that political and religious speech are reviewed under strict scrutiny. In Packingham v. North Carolina, a case about a North Carolina statute that prohibited a sex offender from using social media websites, Justice Anthony Kennedy compared the Internet to a public forum, as it has become a part of everyone’s lives today. The Court ruled that speech must also be protected on social media under the First Amendment. Ethan Porter, a professor of media and public affairs at the George Washington University asserted the voters have a right to know who the candidates in an election are, and what issues are relevant. The ban on political ads as a publisher would limit free speech, but prevent the spread of disinformation.
It is difficult for a social media company to enforce policies on banning political ads with its weak definitions. For example, it is unclear as to what makes an ad political. Twitter provided details of its policy and said it would still allow political issue ads as long as the ads do not target an audience. Researchers have suggested the true harm is in micro-targeting rather than political ads as a whole. However, even within political issue ads, the line is still unclear as to what is allowed. Twitter acknowledges it will make mistakes, so it will be fluid with its new policy. However, viewing the policy as fluid could leave room for inconsistencies and bias. Nonprofit organizations demanding legislative changes by Congress are unsure how this policy affects them and what makes an ad “overtly political.” These organizations argue that banning political ads also disrupts political advertising strategies, especially in the middle of an election cycle. Many candidates and organizations set budgets and plans for advertising. After Twitter’s ban on political ads, candidates and organizations must make adjustments that could affect what ads people can view. As mentioned previously, some argue that people have the right to be politically aware of issues and candidates.
Although it seems simple to argue for or against social media companies to ban political ads, it is much more complex. Under the Communications Decency Act of 1996, social media companies are categorized as platforms and are not held liable for misinformation published by a third party to protect free speech. As a publisher, social media companies can prevent the spread of misinformation but there are still costs. With a ban on political ads, it is difficult to remain consistent with its enforcement, and it can be viewed as unfair to challenger candidates and organizations. Twitter’s ban on political ads puts pressure on other social media companies, especially Facebook, to do the same. After Twitter’s announcement of the ban, Facebook has still stood by its decision. More questions will arise regarding Twitter’s ban on political ads, and the company will continue to make clarifications.