As midterms approach, campaigns must contend with evolving nature of social media rules

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In recent weeks there has been a flurry of activity regarding the role of social media in both federal and state elections, spurred in large part by concerns about foreign interference in American elections as well as President Trump’s undying love for the medium.

Twitter, a favorite engagement tool of many elected officials, consultants and media observers, has been at the center of much of this activity.

Late last month, after coming under intense scrutiny from policymakers on both sides of the political aisle for lax screening of account holders, Twitter announced that it would be adopting amendments to its internal political ad rules ahead of the 2018 midterm elections.

The new policies–designed to stem the influence of foreign nationals in US elections (an illegal practice) and to increase overall transparency in political engagement–obligate political candidates and committees purchasing ads on the platform to become certified as political advertisers before communicating with users.  For federal candidates and political committees, this means providing Twitter with your Federal Election Commission identification number for certification purposes.  For non-FEC registered organizations, this means submitting a notarized identification form to Twitter establishing account status as a certified advertiser.  The revised policies also implement new restrictions regarding profile bios, profile photos, linked websites, and header photos that seek to ensure transparency in political communication and guard against improper use of Twitter by foreign actors.

Almost in unison with the launch of these new Twitter political engagement policies, a federal judge in the Southern District of New York issued a controversial ruling in a lawsuit involving President Trump’s use of the social media platform.  The President, as political observers know well, has made a practice of tweeting with great regularity and was known for blocking followers who were critical of Administration actions.  The later practice, which angered certain groups of his political opponents, was challenged in federal court as an unconstitutional restraint on the First Amendment rights of the blocked Twitter users.

In what many have described as a curious and constitutionally questionable decision, U.S. District Judge and Obama-appointee Naomi Reice Buchwald found for the plaintiffs, characterizing the President’s personal Twitter account as a public forum or “digital town hall” from which he could not exclude individuals.  Twitter muting by the President was somehow adjudged permissible, but not the full blocking of followers.  The President is appealing the decision to the Second Circuit Court of Appeals, but in the meantime public officials across the nation are left to ponder whether they also must leave open their personal Twitter accounts to all comers as public forums, or whether they can legally shut down their accounts without violating the “constitutional rights” of their followers.

With Twitter and other social media platforms at the center of so many political and legal battles at present, it’s entirely predictable that state governments would begin to seek out new ways to regulate online electioneering activity by political candidates and their campaigns.  Maryland is a prime example of one such jurisdiction that has taken recent action in this area.  Earlier this month, Governor Larry Hogan – who has come under scrutiny from transparency groups for allegedly “censoring” comments on government Facebook pages – permitted the Online Electioneering Transparency and Accountability Act to become law without his signature.

This new law aims to strengthen Maryland’s current campaign finance framework, and requires online platforms that have more than 100,000 monthly visitors to maintain a public file of advertisers who spend a certain amount of money on their system.  Advertisers who use those vehicles must report a wide range of information, including the identities of the individuals controlling the ads, the amount paid for the ads, and the name of a contact person that the State Board of Elections may contact if an inquiry is appropriate.  Such information would need to be made public within 48 hours of launch by the entity that was paid for the ad.

No matter the context, the message is clear – government entities are beginning to wake up to the role that social media and online platforms are playing in American politics and elections.  There are sure to be more regulations implemented, at both the state and federal level, and most assuredly more lawsuits tackling the thorny constitutional, statutory and regulatory issues surrounding forms of virtual political engagement.