One of the Federal Election Commission members who rejected a claim that Twitter violated campaign finance laws by censoring The Post’s reporting on Hunter Biden’s laptop said that the social media giant may have been biased in favor of then-candidate Joe Biden but did not break the law.
Republican commissioner Sean Cooksey issued a three-page justification of his vote to reject the complaint by the Republican National Committee, saying that he thought Twitter may have had political motives in censoring the articles, but that it did not rise to the level of an in-kind contribution to Biden’s presidential campaign against incumbent President Donald Trump.
Cooksey expressed his doubt that Twitter was neutral in its coverage and simply following standard company practices.
"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.
"I’m not so sure," Cooksey wrote.
"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 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," Cooksey, a former aide to Twitter critics Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas), wrote.
"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."
Cooksey’s former bosses led congressional pushback to Twitter’s censorship of reports that indicated that then-Democratic presidential nominee Biden was involved with his son’s international business relationships, including in Ukraine and China.
The three Republican commissioners sided with the panel’s two Democrats and one independent to reject the RNC complaint, documents released Wednesday show.
The FEC vote occurred on Aug. 10 and the decision — but not the vote breakdown — was leaked this week to the New York Times.
A form describing the vote does not explain the reasons for the commissioners’ decisions, but the three Republicans, all appointed by former President Donald Trump, explained their votes in writing.
Two of the Republicans wrote that Twitter either had a right to censor the stories ahead of the election by citing the company’s "Hacked Materials" policy — despite no evidence that the information was hacked.
Although Twitter initially claimed the laptop materials may have been hacked, a Delaware computer repairman whose ID was confirmed by The Post before publication said Hunter Biden abandoned the laptop and he gave the material to the FBI and Trump lawyer Rudy Giuliani. Hunter Biden has not denied that the laptop was his.
FEC Vice Chairman Allen Dickerson and Commissioner James Trainor III wrote in a nine-page justification that the commission "has long recognized that ‘business activity [that] ‘reflects commercial considerations’’ cannot be considered a contribution or an expenditure."
The two Republicans wrote: "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 added, "we do not believe that a particular course of moderation need be politically ‘neutral’ – whatever that may mean in practice, and however it might be accomplished at a scale involving billions of individual posts. A single commercial decision is still an exercise of commercial judgment; there is no requirement that it be part of a proven pattern of ideological or partisan evenhandedness, so long as it is not itself done for the purpose of encouraging Americans to vote one way or another."
Dickerson, a former legal director at the Institute for Free Speech, and Trainor, a former assistant to Defense Secretary James Mattis, with whom Trump had a bitter falling-out, said that they also felt that "Twitter’s actions are protected by our media exemption and by the First Amendment itself."
The Republican commissioners sided with Twitter despite stiff pushback from GOP lawmakers who called for repeal of Section 230 of the Communications Decency Act after the censorship. That law gives social media companies legal immunity for third-party content, rather than the usual liability for publishers.
Supporters of reforming Section 230 say tech giants should lose protections if they operate as a publisher rather than as a neutral platform.
The RNC said this week that it’s considering appealing the FEC’s ruling.
Hawley, Cooksey’s former employer, previously pushed the FEC to penalize Twitter, saying last year that "the most powerful monopolies in American history are attempting to control the news and interfere in a federal election."
"This is not some random blog. This is the newspaper founded by Alexander Hamilton, for heaven’s sake. What’s really at stake here is a free press in this country and I have to say, this is really alarming," Hawley said.
Twitter CEO Jack Dorsey admitted this year during a congressional hearing that blocking users from sharing The Post’s blockbuster scoop was a "total mistake" and that locking The Post out of its own account for more than two weeks was "a process error."