FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of )

) MURs 7821, 7827 & 7868

Twitter, Inc., et al. )

)

STATEMENT OF REASONS OF 

COMMISSIONER SEAN J. COOKSEY

For modern campaigns, the internet isn’t optional. Fundraising, advertising, and messaging 

all depend on a candidate’s ability to directly reach donors, voters, and supporters online. 

Campaign websites, email lists, digital ads, and social media profiles have become critical tools 

for electoral success. What’s more, today most Americans consume their news, including political 

news, through the internet and social media. As federal campaigns and technology have evolved,

the Federal Election Commission has worked—often imperfectly—to apply its pre-internet rules

to the post-internet world. This matter presents that kind of problem.

I joined the Commission’s unanimous vote to find no reason to believe that Twitter violated 

campaign-finance law when it blocked users from sharing a politically damaging New York Post 

story about then-candidate Joe Biden’s son or affixed editorial comments to then-candidate Donald 

Trump’s tweets.

1 But I disagree with my colleagues about why. The Commission’s approved 

Factual and Legal Analysis concludesthat Twitter wassimply enforcing preexisting, commercially 

reasonable policies to protect its product quality and business interests.

2 According to the 

Commission, none of the behavior at issue was for the purpose of influencing the 2020 presidential 

election. 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. 

I voted to find no reason to believe because I conclude 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. 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.

1 Certification (Aug. 8, 2021), MURs 7821, 7827 & 7868 (Twitter, Inc., et al.).

2 See Factual & Legal Analysis at 13–19 (Aug. 16, 2021), MURs 7821, 7827 & 7868 (Twitter, Inc., et al.). 

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The Federal Election Campaign Act of 1971, as amended (“FECA” or “the Act”), and 

Commission regulations exempt from the Act’s definitions of “contribution” and “expenditure”

the “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, ... unless the facility is owned or controlled by any political party, political committee, 

or candidate.”

3 This exclusion is known as the “media exemption” or the “press exemption,” and 

its protections extend well beyond traditional news organizations.

4

It includes non-media 

companies engaged in media activities,

5

as well as “media entities that cover or carry news stories, 

commentary, and editorials on the Internet.”

6

Indeed, the Commission has recognized “the Internet 

as a unique and evolving mode of mass communication and political speech that is distinct from 

other media in a manner that warrants a restrained regulatory approach.”7

In determining the media exemption’s scope, the Commission uses a two-part test: (1) 

whether the entity is owned or controlled by a political party, political committee, or candidate; 

and (2) whether the conduct at issue is press or media activity (that is, whether the entity is acting 

in a “legitimate press function”).8 Two considerations are whether the entity’s materials are 

available to the general public and are comparable in form to those the entity ordinarily issues.9

The Commission has consistently maintained that blogs, news-sharing sites, message

boards, and similar websites are engaged in legitimate press activities and fall under the media 

exemption. For example, in Advisory Opinion 2005-16 (Fired Up!), the Commission considered 

whether plainly partisan news websites that hosted both original news commentary and usergenerated content qualified for the media exemption. The Commission reasoned that the 

“provision of news stories, commentary, and editorials on its websites falls within Fired Up’s 

legitimate press function.”

10 Likewise, in Advisory Opinion 2016-01 (Ethiq), the Commission held 

that a platform providing algorithmically curated news through its website and mobile app also 

3 11 C.F.R. §§ 100.73, 100.132; see also 52 U.S.C. § 30101(9)(B)(i).

4 The media exemption is a statutory recognition of the First Amendment’s Free Press Clause and the critical 

role the press plays in our democratic system of government. See U.S. Const. amend. I (“Congress shall make no law 

... abridging the freedom of the press.”). Congress’s purpose in providing the media exemption in FECA was to 

prohibit the Commission from “limit[ing] or burden[ing] in any way” the exercise of press activities or editorial 

decisions. H.R. Rep. No. 93-1239, at 4 (1974).

5 See Statement of Reasons of Vice Chair Bradley A. Smith and Commissioners Michael E. Toner and David 

M. Mason (Sept. 25, 2003), MUR 5315 (Wal-Mart Stores, Inc.); First General Counsel’s Report at 6–9 (Nov. 2, 1993), 

MUR 3607 (Northwest Airlines, Inc.).

6 Explanation and Justification for Final Rules on Internet Communications, 71 Fed. Reg. 18,589, 18,608 

(April 12, 2006). 

7

Id. at 18,589.

8 Reader’s Digest Ass’n v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); FEC v. Phillips Publishing, 517 

F. Supp. 1308, 1312–13 (D.D.C. 1981); Advisory Op. 2004-07 (MTV); Advisory Op. 2005-16 (Fired Up!).

9 See FEC v. Mass. Citizens for Life, 479 U.S. 238, 251 (1986); Advisory Op. 2000-13 (iNEXTV) at 3.

10 Advisory Op. 2005-16 (Fired Up!) at 6; see also Advisory Op. 2008-14 (Melothé, Inc.) at 5. 

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fell under the media exemption.11 Finally, in MUR 5928 (Kos Media, LLC), the Commission 

dismissed a complaint against the news blogging website Daily Kos under the press exemption. 

The accompanying Factual and Legal Analysis observed that “by creating and distributing the 

DailyKos, containing news stories with links to ‘breaking news,’ original political commentary,

and calls to actions akin to editorials, Kos Media is acting within its legitimate press function that 

qualifies it as a press entity.”

12

Under Commission precedent, Twitter and similar social media companies are media 

entities, and their content and editorial decisions are therefore not expenditures or contributions 

under the Act. First, Twitter is not owned or controlled by any political party, political committee, 

or candidate. Second, the company is best understood to be operating as a publisher engaged in 

legitimate media activities: Twitter is functionally a free microblogging platform like other userdriven news websites. It allows hundreds of millions of users to publish original content and to 

share writing, photos, videos, and weblinks. The platform also sells advertising space, curates and 

summarizes news articles, and hosts live-streamed events. In short, Twitter’s principal business is 

the creation and distribution of media content, subject to its editorial and moderation standards, 

which is at the heart of constitutionally protected press activity. 

Consequently, Twitter is entitled to engage in these traditional media activities—even if 

done with a political motive or bias—without tripping into a campaign-finance violation.13

Because the media exemption is the most straightforward basis for dismissal, I don’t believe the 

Commission needs to decide whether Twitter was acting solely for commercial reasons or to pass 

judgment on other possible grounds for dismissal.

There is an important public debate over whether today’s largest social media companies 

are politically biased. Indeed, that is only one of the myriad policy issues Big Tech creates. Those 

problems should be addressed by our democratically elected representatives and expert executive 

agencies, but the Federal Election Commission isn’t one of them. Because Twitter is a publisher 

protected by the Act’s media exemption, I voted to find no reason to believe it violated the law.

______________________________ September 13, 2021

Sean J. Cooksey Date

Commissioner

11 Advisory Op. 2016-01 (Ethiq) at 2–5.

12 Factual & Legal Analysis at 5 (Sept. 4, 2007), MUR 5928 (Kos Media LLC). 

13 See First General Counsel’s Report, MUR 5440 (CBS Broadcasting, Inc.) (“Even seemingly biased stories 

or commentary by a press entity can fall within the media exemption.”); see also Miami Herald Pub. Co. v. Tornillo, 

418 U.S. 241, 258 (1974) (“The choice of material to go into a newspaper, and the decisions made as to limitations 

on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—

constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation 

of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have 

evolved to this time.”).

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