Twitter’s Ban on Political Ads Has No First Amendment Implications

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Yesterday, Twitter Chief Executive Jack Dorsey announced that the social media platform will ban all political advertising. This comes on the heels of Facebook’s recent announcement that the company won’t fact check political ads on their platform. Behold two companies with two different approaches to dealing with political speech in what’s sure to be a raucous upcoming election season.

Does Facebook’s policy protect the integrity of unfettered speech or does it promote the spread of so-called “fake news?” Does Twitter’s approach shield users from misleading information or simply deny maximum profits to its investors by foregoing the revenue political advertising would have produced?

Whichever tack tech companies take with their privately owned platforms, there are no First Amendment implications. The First Amendment prevents only the government from making laws that abridge freedom of speech. Individuals do not have First Amendment rights on others’ private property, like the Twitter and Facebook platforms.

Opinion leaders, social platform users, and the companies themselves will debate the costs and benefits of these differing corporate policies but everyone should agree that just the trying of different approaches is, in and of itself, a great benefit.

Political speech on social media platforms is mostly uncharted waters for these companies and their users; no one can know with absolute certainty which approach will provide the most benefit. Perhaps a clear winner will emerge quickly or perhaps there will be different “best practices” on different platforms (as they serve different users in different ways).

The advantages of running this experiment in the marketplace, instead of the government regulatory realm, are manifold. When private companies make decisions with their private property, they have skin in the game to create maximum incentives for success. Not so when regulators and legislators politicize these decisions. And unlike a static regulatory regime, a dynamic marketplace allows companies to more quickly reverse, recalibrate, or ramp up their approach based on feedback from consumers and clients. Lastly, experiments on the economic frontier allow for the innovation and adjustment that heavy-handed regulations often stifle.

Whether hands off, no hands allowed, heavy-handed curating, or some combination of those emerge the winner on social media platforms, we’re sure to get to the best answer in the shortest amount of time using the marketplace. We can all agree that’s a better approach than if government regulations had dictated the rules and locked them in place with no empirical knowledge of the real-world options. The market is about to show us what users really want and we’re all about to be better off for it.