The 140-character campaign: regulating social media usage in campaign advertising.

AuthorHinkeldey, Jeffrey P.
  1. INTRODUCTION II. SOCIAL MEDIA BASICS A. FACEBOOK B. TWITTER III. STATE LAW A. NEW JERSEY B. NEW YORK C. CALIFORNIA D. MARYLAND E. FLORIDA IV. MODEL LEGISLATION V. CONCLUSION I. INTRODUCTION

    Over the past decade social media has become an integral part of any major political campaign. Particularly, the use of Facebook and Twitter appears to be a necessary component for a successful campaign. This trend began with President Barack Obama embracing the use of social media during his first presidential campaign in 2008. (1) Four years later, as President Obama won a second term in office, two things became abundantly clear: the 2012 presidential election had truly been the "Twitter Election," (2) and social media had forever changed political campaigns.

    This shift to social media was rather easy to predict. Candidates who failed to utilize social media services risked fading into obscurity. Considering "the median age of a TV evening news viewer [is] approaching 63 years old," it is clear that social media is crucial to a candidate's campaign. (3) If a candidate wants to reach a larger, more diverse audience and, more importantly, have an influence on that audience, social media is becoming the best, if not the only, option. (4)

    The best utilization of social media in a political campaign is through advertising. While the political world may be keeping up with social media, the law is not. In the United States, only two states have passed social media-specific laws outlining appropriate uses of social media in campaign advertising. (5)

    With social media becoming a campaign necessity, it is time for the law to catch up. Consider Senator Cory Booker of Newark, New Jersey. (6) He is believed to run his own Twitter account and is largely the first major politician to do so. (7) He does not back down from critics, either, addressing complaints and criticisms with well-crafted responses. (8) He even offers to give distressed followers his cell phone number so they can call him directly for advice. (9)

    Next, consider the Anthony Weiner Twitter scandal. Weiner sent sexually inappropriate pictures to various women through Twitter that became public, causing him to resign his seat in the House of Representatives. (10) Weiner and Booker represent different ends of the social media spectrum for politicians, but the Weiner scandal raises the question of whether politicians should be on social media at all considering the potential consequences.

    This Note begins with an examination of how social media functions. Special attention will be paid to Twitter and Facebook, the platforms used to connect with the most people. The basics of the different services will be discussed, and major functions will be explained.

    This Note will then examine state law from New Jersey, New York, California, Florida, and Maryland. Florida and Maryland are the only two states that have legislation specifically addressing social media and Internet advertising. What aspects of the other states' laws make their application to social media problematic? What major questions are left unanswered, and how necessary are those answers in a digital world? The Florida and Maryland laws will be examined to answer questions posed in other states, but will these answers prove satisfactory?

    Having considered the various provisions across the United States, what is appropriate for public office campaigns throughout the country? With a new generation of social media-savvy politicians just over the horizon, progressive regulations for social media usage that leave room for further technological advancement should be implemented. This issue will be addressed with model legislation. Additionally, what needs to go into this legislation to make it work, and how can it be written to sustain the ever-changing technological landscape?

  2. SOCIAL MEDIA BASICS

    Social media has become a way of life for most people. However, different platforms, such as Facebook, Twitter, and Linkedln, are constantly evolving, making it difficult for even the most experienced social media user to stay familiar with each platform's details.

    1. FACEBOOK

      Facebook recently reached over one billion users worldwide, easily making it the most popular social media platform in the world. (11) Every Facebook user can add as much personal information as he or she chooses. Facebook compiles everything into a personal timeline showing when a user moved into a new residence, started a new job, graduated, began a relationship, and any other major life event the user wishes to share. (12)

      Facebook users can upload pictures of themselves, their friends, and anything else they wish to share. (13) The picture feature provides the ability to "tag" other Facebook users who are in the picture. (14) Tagging another user sends a notification to that user and makes the picture visible to that user's connections on Facebook. (15)

      Facebook revolves around friends. People add friends, chat with friends using Facebook Messenger, or share information with friends on their individual "timeline" with an update. (16) Messages through Facebook Messenger remain private between the two or more users involved, but a timeline posting is visible to anyone whom the user chooses to share his timeline. (17)

      In addition to interacting with friends, (18) Facebook users can subscribe to pages representing products, (19) companies, (20) media outlets, (21) celebrities, (22) and politicians. (23) If a user sees an update from a friend, company, celebrity, etc., the user can share that update amongst his friends by simply clicking the "Share" button under every update. (24) The user can then choose whether to share the update on his own timeline, for all of his friends to see, or on a friend's timeline, for all of his friend's friends to see. (25) Whenever information is posted, other users can choose to "Like" it by clicking a button under the update. (26) A "Like," as the name implies, shows support, agreement, or appreciation for an update.

    2. TWITTER

      Twitter is like a shortened version of Facebook. Twitter users sign up using a "handle," which becomes their username. (27) They communicate with specific users by inserting the standard form "@[user name]," which indicates to the user that he or she has been "mentioned" by someone. (28) Twitter provides a separate page for users to see all of their mentions. (29)

      Every time a Twitter user posts an update, it is known as a "Tweet." (30) More active Twitter users can tweet hundreds of times daily, but there is a limit. (31) Users that go over this limit can unknowingly end up in "Twitter Jail" for a period of about an hour, where they can still send tweets, but nobody else can see them. (32)

      While Facebook has privacy settings that can be applied to individual aspects of a profile, (33) Twitter is much more basic. Users can choose to be public or private, with private users getting to determine who sees their tweets. (34) All users gain "followers," like subscribers, and follow whomever they want in return. (35)

      Two key features of Twitter are "retweets" and "favorites." Retweets occur when one user sees a tweet from another user and wants to share that tweet. (36) It is perhaps best explained through an example: User A follows User B. User B thinks of a joke and tweets it. As a follower of User B, User A sees the tweet. Finding it particularly funny, User A wants to share the tweet with his own followers while still crediting User B with creating the joke. User A can retweet User B's tweet, so that all of User A's followers have seen User B's tweet, even if they don't follow User B. (37) User B would then receive a notification that User A has retweeted the joke. (38)

      Users can also "favorite" other users' tweets. (39) A public user's favorites are available to anyone through a separate list kept by Twitter and available on a user's page. (40) Each user's page is known as his "feed." (41)

      Twitter users can privately communicate through "direct messages," commonly referred to as "DMs." (42) Direct messages and tweets are capped at 140 characters, which is one of Twitter's bestknown characteristics. (43)

      Certainly there are more social media platforms than those mentioned here. (44) Facebook and Twitter, however, are the most popular and allow politicians to reach the largest audience.

  3. STATE LAW

    In the United States, Maryland and Florida are the only states that have addressed the use of social media in campaign advertising. (45) Across the country, most states have adopted campaign advertising legislation. (46) This section will examine a sampling of these laws. For each state examined, an example will be given to show how the respective law would be problematic if applied to federal elections.

    1. NEW JERSEY

      In New Jersey, campaign expenditures, including advertisements, must be disclosed to the Election Law Enforcement Commission. (47) Advertisements made by a campaign, party, organization, or similar entities are subject to strict guidelines. (48) Among the requirements is that "the communication shall clearly state the name and business or residence address of the committee, group or person ... and that the communication has been financed by that committee, group, or person." (49) The law further requires that a person who is paid for the purposes of advertising must "maintain a record of the transaction which shall include an exact copy of the communication and a statement of the number of copies made or the dates and times that the communication was ... transmitted." (50)

      The statute uses the word "communication" rather than "advertisement" throughout the section but defines "communication," in relevant part, as a "paid advertisement printed in any newspaper or other publication or broadcast on radio or television, or telephone call featuring a recorded message, or any other form of advertising directed to the electorate," (51) The broad language at the end of the...

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