Over 150 years ago John Stuart Mill’s concept of a marketplace of ideas was focused on pamphlets and debate, which then progressed to newspapers, radio, and television.
The concept has been fundamental to American democracy — and now social media platforms, such as Twitter, are disrupting a functioning marketplace by discriminating against conservative voices on their platforms.
That discrimination against conservatives was illuminated last year in congressional hearings, and condemned by many, but two new legal actions are concrete steps towards restoring fairness to the marketplace.
The case study for why this discrimination must be fixed is my client and Florida-based investigative journalist Laura Loomer, who was banned from Twitter as private citizen, and the Twitter corporation has continued to enforce that ban against her campaign for Florida’s 21st congressional district.
Loomer is not your ordinary political candidate. She amassed a significant following as an activist and journalist (with over 250,000 followers on Twitter prior to being banned). When Twitter banned Loomer’s campaign account, it prevented her from raising hundreds of thousands of dollars, and since her Democrat opponent has a Twitter account while Loomer does not, she is cancelled from providing information to potential voters and/or donors, cutting her off from a vital pool of resources.
By blocking Loomer from creating an account, the Twitter corporation is engaging in electoral interference and providing a material and financial advantage to Loomer’s Democratic opponent, Lois Frankel.
On January 21, Florida Senate Majority Leader Joe Gruters announced new legislation that will allow Floridians to sue social media companies that censor their political speech, and specifically restrict social media companies from using amorphous “hate speech” claims as a legal defense. The law will award a minimum $75,000 in damages against social media companies that delete or otherwise censure an individual’s religious or political speech.
For example, Loomer was banned from Twitter for expressing non-politically correct views about sharia law, and under the new Florida law she could not be banned from a platform for expressing such views.
Importantly, the bill will not apply to cases where a social media user has been censured for speech that “calls for immediate acts of violence, is obscene or pornographic in nature…entices criminal conduct, or involves bullying minors.” Variations of the same bill have been introduced in fourteen other states.
Sen. Gruters’s law is a good step in protecting against viewpoint-based discrimination, but the problem is even worse when corporations controlling the marketplace continue their viewpoint discrimination against federal candidates.
The Laura Loomer for Congress campaign is filing a formal complaint against Twitter with the Federal Election Commission, arguing that her campaign’s ban from Twitter because of her conservative viewpoints is effectively an illegal corporate in-kind contribution to her Democratic opponent, Frankel.
Loomer is the Republican frontrunner in President Trump’s home congressional district, yet she and her campaign are prohibited from responding to Frankel’s Twitter attacks on Trump. This moves from Mill’s high-minded concepts of democratic debate to being an illegal violation of the FEC’s corporate contribution rules, which is explained in detail in Loomer’s FEC complaint.
Social media platforms are vital for the success of political campaigns. President Trump has stated that he would not have won the presidency without it, and it was considered a significant factor in the success of former President Barack Obama’s success in both of his presidential races. Now, almost every federal candidate has a social media presence, where they give updates about the campaign, announce policy positions, sell campaign merchandise, and solicit contributions.
The Supreme Court has even acknowledged the role of social media platforms for free expression. In Packingham v. North Carolina, the Court compared the Internet, particularly social media platforms, to a “modern public square”, calling it “the most powerful mechanism available to a private citizen to make his or her voice heard.”
To be clear, social media platforms have every right to combat threats of violence, obscenity, and the bullying of minors. They do not, however, have the right to engage in viewpoint discrimination that does not include those elements, and these massive corporations do not have the right to intervene in campaigns by providing access to their favored candidates.
Longstanding federal law prohibits broadcasting organizations from denying federal candidates equal access to their platforms. By banning Loomer from its platform, Twitter is denying her the same access as her Democrat opponent and preventing her from communicating her message to potential voters.
Regardless of political affiliation, the systematic targeting of conservative viewpoints by social media organizations should alarm every person that has participated, or will participate, in the voting process. If social media platforms are allowed to remove certain voices, especially federal candidates, from engaging in political discourse, they have the ability to influence and manipulate elections.
The right to free expression is the cornerstone of our Republic, and luckily, we have individuals like Laura Loomer who are fighting for it.
Charlie Spies is a Member in the Washington DC based political law practice at Dickinson Wright PLLC. He has served as Election Law Counsel for the Republican National Committee, counsel to the Chairman of the Federal Election Commission, and as CFO and Counsel for the Mitt Romney for President Campaign.