FEC Commissioner: Twitter Block of NY Post Hunter Biden Story Did Not Violate Campaign Finance Law

FEC concludes that 'Twitter is a publisher'

Then-vice president Joe Biden and his son Hunter Biden attend an NCAA basketball game between Georgetown University and Duke University in Washington on Jan. 30, 2010. Jonathan Ernst/Reuters

The head of the Federal Election Commission (FEC) said Twitter did not violate campaign finance laws by blocking a report from the New York Post about Hunter Biden’s laptop and alleged overseas business dealings last year, although the social media platform may have been biased in favor of then-candidate Joe Biden.

FEC Commissioner Sean Cooksey, in a three-page document (pdf) released Wednesday, said Twitter may have had political motives by blocking the articles about the younger Biden, which the NY Post and others have decried as an act of censorship, but the social media site’s decision wasn’t a political contribution to Biden’s campaign against former President Donald Trump.

“The Commission’s approved Factual and Legal Analysis concludes that Twitter was simply enforcing preexisting, commercially reasonable policies to protect its product quality and business interests. According to the Commission, none of the behavior at issue was for the purpose of influencing the 2020 presidential election,“ he wrote, adding: “I’m not so sure.”

“In my view, the record doesn’t establish whether Twitter was consistently enforcing a politically neutral business policy or using its platform to support one candidate over another. But I also think the answer to that question is ultimately irrelevant,“ Cooksey also said, concluding that ”Twitter is a publisher with a First Amendment right to control the content on its platform and to favor or disfavor certain speech and speakers.”

As a result, he argued, “Its conduct therefore falls under the FEC’s media exemption, doesn’t qualify as an expenditure or contribution, and doesn’t violate campaign-finance law.”

Documents released on Wednesday show that three Republican commissioners sided with the FEC’s two Democrats and one independent to reject a complaint from the Republican National Committee that Twitter violated campaign finance laws.

FEC Vice Chairman Allen Dickerson and Commissioner James Trainor III wrote (pdf) in their justification that while “Twitter vigorously maintains that its decision to throttle the sharing of the Post articles at issue… resulted from the evenhanded application of its content moderation policies.”

“Given Twitter’s clear denials and lacking any indications, other than pure conjecture, to the contrary, the Commission found that these allegations simply did not meet our evidentiary standard and voted accordingly,” they opined.

The decision not to penalize Twitter will likely trigger calls to reform or abolish Section 230 of the 1996 Communications Decency Act that serves as a liability shield for major platforms. The law’s critics say that Big Tech companies should lose those protections if they operate akin to a publisher rather than a neutral platform, while some have said that social media websites now effectively operate as a “public square.”