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There's a lot of discussion in the past years on whether or not Facebook is using their platform to promote a certain political agenda and influence elections. Facebook denies such accusations but even if they did try to influence things behind the scenes, wouldn't it be perfectly legal? There are certainly media channels out there that actively promote certain political parties but no one is summoning the editor of Fox News or CNN for questioning in the Senate.

So what's the big deal about Facebook allegedly influencing politics? Aren't they protected by the First Amendment in being free to promote anything they please?

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    The UK has no First Amendment… Please specify whether you want the scope to be US-only. And can you clarify whether that's "actively" or "openly", preferred by also quoting some such allegations of, hm, 'undue influence'? – LangLangC Aug 18 at 17:50
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    @LangLangC US only. And Zuckerberg being called into Senate where senators ask him if FB moderators are democratic or republican is what I'm thinking of. – JonathanReez Aug 18 at 17:55
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    "A lot of discussion" - Not that much. They're officially doing this - promoting "trustworthy" sources, suppressing sources they don't trust, or don't like, or the US government doesn't like or whatever. Plus, even before that - they've always had advertizing, which is trying to convince their users of what their advertizers want the users to think. – einpoklum Aug 20 at 17:51
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I think there are two related but separate questions here that probably should be addressed separately.

  • Can Facebook (that is, Facebook, Inc.) legally express a political opinion of its own?

Undoubtedly, the answer to this is yes - as reaffirmed in Citizens United, in the US, corporations have the same First Amendment protections, which includes the ability to promote and campaign for a particular candidate or policy, donate to various campaigns and spend on political advertising (which, as per Buckley v. Valeo is seen as "protected speech") and to promote posts of users on its platform that support / oppose various political views.

The second question is:

  • Can Facebook remove any post that it finds objectionable and suspend/terminate the accounts of users making such posts?

The answer to this is a mostly yes. Subject to Facebook's Terms of Service (a legally-binding agreement between Facebook and each end user), it may remove posts that breach its Community Standards. Here are some pertinent excerpts from within the Terms of Service:

We can remove or restrict access to content that is in violation of these provisions.

If we remove content that you have shared in violation of our Community Standards, we'll let you know and explain any options you have to request another review, unless you seriously or repeatedly violate these Terms or if doing so may expose us or others to legal liability; harm our community of users; compromise or interfere with the integrity or operation of any of our services, systems or Products; where we are restricted due to technical limitations; or where we are prohibited from doing so for legal reasons.

[...]

If we determine that you have clearly, seriously or repeatedly breached our Terms or Policies, including in particular our Community Standards, we may suspend or permanently disable access to your account. We may also suspend or disable your account if you repeatedly infringe other people's intellectual property rights or where we are required to do so for legal reasons.

Where we take such action, we'll let you know and explain any options you have to request a review, unless doing so may expose us or others to legal liability; harm our community of users; compromise or interfere with the integrity or operation of any of our services, systems or Products; or where we are restricted due to technical limitations; or where we are prohibited from doing so for legal reasons.

and from the Community Standards:

We do not allow hate speech on Facebook because it creates an environment of intimidation and exclusion and in some cases may promote real-world violence.

We define hate speech as a direct attack on people based on what we call protected characteristics – race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious disease or disability. We also provide some protections for immigration status. We define "attack" as violent or dehumanising speech, statements of inferiority, or calls for exclusion or segregation. We separate attacks into three tiers of severity, as described below.

If Facebook was to remove content or user access in a manner contrary to its Terms of Service, arguably the affected user could seek remedies for breach of contract.

Possibly worth noting is the fact that Facebook must also not deny service to someone on the basis of a protected class / attribute under 42 USC § 2000a:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

If Facebook altered its Terms to prohibit users of certain races, colours, religions or national origins, these Terms would be void at least to the extent of these prohibitions (as well as expose Facebook and its officers to criminal liability). Note that there would be no prohibition on Facebook banning Democrats, Republicans, socialists, nationalists, etc. as political affiliation / opinion is not a protected class / attribute.

This leads to the real political question - why has Facebook been summoned before Senate committees to perhaps explain itself in regards to restricting certain (political) speech?

There has been a view amongst Republican politicians that Facebook is censoring conservative speech by removing right-leaning posts and accounts. Combine this with recent Supreme Court obiter dictum that Facebook is the new "public square" (as per Kennedy's majority opinion in Packingham v. North_Carolina) and you might see that Republicans could be trying to build support for legislative measures to possibly:

  • add political affiliation / opinion to the list of protected classes / attributes under 42 USC § 2000a, or
  • at the very least, compel large social media platforms to not deny service based on political opinion / affiliation.

EDIT:

As was pointed out in the comments, it may be unlikely that censorship of conservative views is even taking place. However, this is irrelevant - it is more about perception. A recent independent review found that conservatives believed that censorship of their views was occurring, and Facebook has implemented changes as a result (as seen in the review) to win back the trust of conservative users.

Similarly, the current response by Senate Republicans is also based purely on belief (whether it is actually occurring is also not relevant here). The Republican voting base believes there is an issue, and Senate Republicans are showing they're listening by doing something (which may or may not end up being only lip service) to energise the base and win votes.

  • If political affiliation / opinion were a protected class, everyone could be considered a protected class. That's probably the only way they could try to force social media companies to serve people it bans, but man that's some alarming fascism. – CrackpotCrocodile Aug 20 at 17:16
  • @CrackpotCrocodile I don't think it's necessarily correct to label it as fascism, since anti-government speech would suddenly become irremovable. However, I do agree that it would be a burden on freedom of contract / private property rights, but it is the legislature's duty to balance these rights in determing what is the law. – studro Aug 21 at 1:12
  • Some jurisdictions already treat political affiliation / conviction as a protected classes. In California (within the US), this applies specifically to employment - see California Labor Code § 1101-1105. In the Australian Capital Terrtory (outside the US), this is done on a general basis - see Section 7 of the Discrimination Act 1991 (Australian Capital Territory). – studro Aug 21 at 1:21
  • My reading of 42 USC § 2000a is that a "place of public accommodation" is a physical location (specifically one linked to interstate commerce, likely since federal government can't set rules for inter-state activities). An argument could be made that facebook affects interstate commerce, though even that is slightly gray, but it is not a "physical establishment." As such I don't think it would apply to facebook. I wouldn't be surprised if other legislation imposed similar rulings on facebook, but It doesn't look to me like the one you specifically linked does. – dsollen Aug 22 at 13:11
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    @paul23 There is no law, to the best of my knoweldge, at present (in the US) that requires a private company to broadcast the opinion of its customers. Any agreement to do so would be done by contract. Do you have a reference for any of these laws - I'll be happy to edit it in if I'm corrected on this. – studro Aug 29 at 3:05
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1) They would be absolutely allowed to promote any political agenda as a publisher, but not necessarily as a platform. It's contentious whether famous Section 230 allows them to find a perfect sweet spot:

  • shielded from any liability for content posted by crazy users as if they were merely a platform;

  • having huge editorial discretion in selecting what to publish, as if they were a publisher.

2) Implicit expectation of being a neutral platform. Think like discovering that your mobile phone company treats customers differently pending on the issues they discuss or their political views. Even if it could be legal, it would still raise some eyebrows.

3) Convenient scapegoat. While attempts to regulate Big New Media to promote freedom of speech and platform neutrality is more right wing stuff, a chance to blast some disliked CEO is enjoyed by politicians regardless of their views.

4) Uncharted waters and near market monopoly. Think this way, when Rockefeller started his oil trust, his business plan was technically speaking perfectly legal. Just such power abuse lead lawmakers to update and extend the list of illegal practices.

5) Chance to grill on other unrelated issues like privacy violations or tax avoidance.

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    "It's contentious whether famous Section 230 allows them to find a perfect sweet spot" -- It's only "contentious" in the way flag-burning is contentious -- the law clearly allows promoting a political agenda, courts uniformly enforce the clear text of the law, but some people lie about what the law clearly says because they figure people aren't going to double-check. The rest of the answer is spot-on, so +1. – cpast Aug 18 at 19:34
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    Speaking of convenient scapegoats, Standard Oil had to constantly cut costs and compete on prices to maintain their dominant position, and were at something like 63% market share when broken up. They initially beat the competition by becoming vertically integrated which made their products cheaper, but once the competition had time to imitate these business practices, the advantage ended. But certainly if that poor economic case is enough to make new law, Facebook needs to keep itself congress's good side. – A Simple Algorithm Aug 19 at 2:03
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    @cpast Part of the confusion is that there's discontent on both sides of the political spectrum - some people feel like a platform like Facebook isn't moderating enough, allowing hoaxes and propaganda/Fake News as long as it generates ad revenue, while other people feel it is being politically selective in moderation. It's an even more complex issue because a company like Facebook has non-transparent moderation, that is not applied universally, but absolutely markets itself as a neutral platform. Hence people have tied the idea of no liability to neutrality, or see it as best-of-both-worlds. – DariM Aug 19 at 2:17
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    I don't understand your point 3 about right wing stuff. – gerrit Aug 19 at 7:41
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    @gerrit that one confused me as well. Besides being a difficult sentence to parse, it seems backwards. In the US, topics like "net neutrality" and "fairness doctrine" have lately been supported more by the left wing. Though members on all sides are happy to re-interpret the constitution when it's to their clear advantage of course. – A Simple Algorithm Aug 19 at 14:12
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Facebook can and does actively promote a political agenda.

They even formed a Political Action Committee, FB PAC, through which they donate money to various politicians and PACs (and contrary to right-wing narrative, they have been known to give more money to GOP causes).

They also sell advertising space on their website for political ads, though this is a case of them promoting someone else's political agenda for money.

As for the user-generated content.

Social media websites give people the privilege (not a right) of using their services, typically free of charge, and that privilege can be revoked.

They have the right to delete any content they wish for whatever reason they want, or even no reason whatsoever. This is how they are able to block or delete things that may be legal but unpleasant.

  • spam
  • pornography
  • horrific or disturbing content (use your imagination)
  • links to malware

How does the First Amendment apply?

The First Amendment protects people from the government by limiting what the government can do. That's why contrary to popular belief the First Amendment doesn't protect you from being banned from a website.

enter image description here

Now if the government were to try to force a website to accept someone as a member, they would quickly run into an issue with the First Amendment right to Freedom of Association which guarantees an organization the right to exclude people from membership (even against people of Protected Classes to some extent, which political views definitely are not).


While completely irrelevant to the question of what is legal, some people might try to say.

But... But... But... The principle of freedom of speech is that I should be able to say anything I want without fear of any consequences or retaliation!

But that makes no sense. If someone comes onto your property and starts shouting "This person is a lizard man!" you get to use your right to free speech and association to call that person an idiot and throw them off your property. They can call you a lizard man all they want on their property or public land (they still have free speech), but they don't get to encroach on your right to not do that on your property (your free speech). That's how freedom of speech works regardless of any specific laws.

Speech has social consequences, else there would be no point in speaking.

What's this Section 230 people keep talking about?

Much like the First Amendment, not what many people think or claim it is. To better understand it, the EFF has written some excellent articles on the subject.

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    Is there a reason for the xkcd comic? At best, it's just repeating what you posted, and at worst an appeal to authority. My impression of the OP's question is that the part about the 1st amendment is about facebook's speech, not site users'. – bobsburner Aug 20 at 12:02
  • "They have the right to delete any content they wish for whatever reason they want". I believe you should have elaborated on the fact that publishers are allowed to do this but are then liable for any illegal content they host, whereas platforms are not allowed to this but gives them the benefit of not being liable for illegal content they host. – David Callanan Aug 20 at 15:59
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    @DavidCallanan There's a lot of disinformation over what Section 230 does and does not do, with Ted Cruz being responsible for a lot of it. I'd recommend you start with some articles by the EFF like No, Section 230 Does Not Require Platforms to Be “Neutral” and Section 230 Is Not A Special “Tech Company” Immunity – CrackpotCrocodile Aug 20 at 16:20
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    @DavidCallanan Also a publisher wouldn't be liable for deleting things they have published. That doesn't make any sense. I don't see the relevance to the quote. – CrackpotCrocodile Aug 20 at 16:41
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    The 1st amendment isn't the only legal protection for free speech, there are others. – einpoklum Aug 20 at 17:53
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This is one of these gray areas where technology has outpaced legislation.

Technically speaking, Facebook today might be considered a 'publisher', and therefore free to pursue whatever political agenda they desire. The same can be said of Twitter, another major social media platform.

However, unlike traditional publishers, Facebook and Twitter have become a more integral part of people's lives than, say, McGraw-Hill or CBS. They are not just a book, or a news story, they can be a person's primary communications device.

A more nuanced parallel might be to compare Facebook to AT&T, when it was the nation's only phone company. By the late 1940's, the telephone had become indispensable to most people as a primary means of communications, without which they would have a difficult time operating in society. You can change television or radio channels, but at that time, you couldn't change phone companies... there was only one.

At that point the business had become a public utility, providing an essential service, much as electric power companies made that transition in the 1920's and 1930's... after then, most citizens couldn't really function without electric power. The telephone had become a person's primary communications device.

As they occupy a critical position, public utilities are regulated by the government, to prevent monopoly abuse. They are also forbidden to deny service to individuals based on a number of criteria, including expressed opinions.

Imagine AT&T refusing to provide telephone service to people who espoused communist views in the 1950's. A lot of Americans probably wouldn't have disagreed with that, given the mood of the nation at that time.

The key factor here is when a service moves from being an optional luxury, as in a discussion group, to being a utility, as in being indispensable to a large number of people. Social media, while not there yet, is clearly in that transition phase, but still insists that they are a private company and not a utility. If you don't like their restrictions, you should go somewhere else.

However, when one or two platforms have most of the people, and the activity involves interacting with people, that really isn't an option. The platform is becoming a utility. The very nature of social media, and the interactions between large numbers of people, tend to make a few large providers the most desirable setup.

This isn't the first time that technology has advanced faster than the legal industry can understand. Another such case was Microsoft in the mid 1990's to mid 2000's. At it's peak, Windows was on just about every personal computer in use, putting Microsoft in a monopoly position. And Microsoft did leverage that monopoly position to discourage competition, but at that time, lawmakers didn't understand the issues.

The same basic issue was at the heart of the matter: Windows had become indispensable to a large number of people and businesses, only MS wasn't promoting political agendas, it was jacking up prices. MS probably figured (quite correctly) that it would take some time before the legislators and courts figured out they were leveraging a monopoly position, so make money until they do.

Eventually, court cases for antitrust were put forth against Microsoft. However, the mobile revolution blew Microsoft out of their monopoly position before those cases were fully decided.

Technology today moves so fast that any lapses in staying current can be deadly to a major tech company. MS sat on it's monopoly, didn't give much attention to mobile devices, and got caught sleeping.

Thus it will go with social media. Either changes in tech will relegate Facebook to the has-beens of the industry, or social media in general will be legislated as an essential utility, and thus be subject to anti-discrimination laws.

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    “Don’t like their restrictions, go somewhere else.” That possibility somewhat defends FB even though it isn’t practical. mewe.com (MW) promises to never do a lot of things FB does (some of which FB falsely claims they don’t do). But how many people will move from FB to MW when all their friends are still on FB? And if FB ever manages to get enough members to survive, they will have too many to be able to efficiently keep those promises. (Assuming they actually want to.) – WGroleau Aug 19 at 15:30
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    @Wgroleau you can just use emails, Signal, Telegram and a myriad of other communication methods instead of FB. It doesn't have a monopoly on internet messengers. – JonathanReez Aug 19 at 18:41
  • @WGroleau How many people will move to Facebook when all there friends are still on Myspace? – CrackpotCrocodile Aug 19 at 18:58
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    @JonathanReez: same thing. My family won’t use e-mail. I resisted Facebook until the day it became the only way to contact my son stranded in another state. – WGroleau Aug 19 at 20:01
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    @WGroleau that's a very localized problem. I know people who refuse to use anything except Signal, doesn't mean Signal has a monopoly. – JonathanReez Aug 19 at 21:05
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Facebook and Twitter exist to make money. They aren't about to promote one "agenda" over another, if it means that half of their users will bail out in anger. Conservatives, especially, are prone to go off and create their own safe spaces - heck, even Wikipedia is too "liberal" for some of them, hence "Conservapedia". (Fox News was basically built along those very lines: tell conservatives what they want to hear, and they will tune in.)

The desire to keep their users is why the major social media platforms try to stay "neutral" and open to "free speech" for everyone. Only the worst (more accurately, the least popular) actors, like Nazis and white nationalists, get censored, and they're the ones whining about Facebook and Twitter "promoting an agenda." To the extent that censoring Nazis is promoting an agenda, well ... they're right. Too bad for them.

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    This doesn't address the question of legality though, does it? – JJJ Aug 20 at 0:45
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Is it legal for Facebook to actively promote a political agenda?

It's a gray area. It's obviously not a first amendment violation because that only applies to governments. And companies do have some first amendment rights to free association.

On the other hand, Facebook advertises itself as a platform for all people, so promoting their political agenda by removing political content they disagree with is possibly illegal (false advertising - they claim they want to connect people and allow them to share information but don't actually let them do it if it is counter to Facebook's political bias) and possibly a violation of their Terms of Service which is kind of ambiguous as to exactly what content is allowed or not allowed.


For the second part about what's the big deal about them influencing politics?,

The big deal (aside from possibly violating false advertising and their ToS contract) is that it creates conflicts of interest.

There's been clear evidence of Facebook downranking conservative news in trending topics, deboosting conservative videos, and removing / downranking certain political content since around 2016 and after (source). The other answer that claims that Facebook donates more to Republicans is based on donations in earlier years most of which were before 2016 and it states that Zuckerberg, himself, has donated more to Democrats. However, Facebook also removes and downranks some far left content as well which is equally as concerning.

One of the conflicts of interest is that political campaigns buy ads on Facebook at the same that Facebook is donating to them. I've actually personally experienced this when running my campaign for state legislature - Facebook blocked me from running ads on their site and donated the maximum amount to my opponent.

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    Please share sources for FB downranking news (right or left) that passes fact checks. – jalynn2 Aug 20 at 14:44
  • Also needs sources on how that would be "possibly illegal" because no explanation was given. – CrackpotCrocodile Aug 20 at 16:25
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Is it legal for Facebook to actively promote a political agenda and influence elections?

Companies are categorized as a publisher or a platform.

A publisher has the right to do whatever they wish with third-party content such as censoring content based on their political views. However, with this right they also have the responsibility of being liable for the content they host; so they can get sued for illegal content.

On the other hand, a platform loses the right to do whatever they wish with third-party content, but at the same time they lose the responsibility of being liable for third-party content; therefore they cannot be sued for illegal content. So when you are a platform, you are passing both the rights and responsibilities of speech to third-parties.

However, as a result of "Section 230 of the Communications Decency Act", a key law that has allowed the internet to flourish, there is an exception for internet-communicated content. This law does not apply to offline content (e.g. physical newspapers).

"Section 230" gives internet-communication companies the benefits of being both a publisher and a platform regarding internet-communicated content; they get all the rights, but none of the responsibilities. From what I know, this means that regardless of whether Facebook is a publisher or not, it is still legal for them to promote a political agenda and influence elections.


So what's the big deal about them influencing politics?

This is a matter of figuring out the correct balance of rights and responsibilities companies should have.

If Facebook falls under the platform category, one may take this as a big deal if they believe platforms should not discriminate against political views.

If Facebook falls under the publisher category, one may take this as a big deal if they believe publishers should be liable for third-party content.

Others may take the influence Facebook could have (and potentially has had) on elections as a big deal because it gives them great power and control over political changes, possibly going against democracy and the 1-vote per US citizen ideology.

  • This answer contains a lot of myths and false claims. That's not how Section 230 works (seriously, read the EFF articles I gave you) and the whole publisher vs platform is a false dichotomy and a false choice. – CrackpotCrocodile Aug 20 at 17:07
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    @CrackpotCrocodile Thanks, I read those articles you gave me, and from what I can see my answer matches those articles. The only thing that might not be precise is when I said "newspaper companies". I meant physical newspapers, not online news. I have edited my answer. – David Callanan Aug 20 at 17:48
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    -1 for claiming that the CDA was passed "in order to help the Internet grow and take off". – einpoklum Aug 20 at 17:54
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    @einpoklum My mistake, I edited the answer. Thanks for letting me know. Wikipedia: Passed at a time where Internet use was just starting to take off, Section 230 has frequently been referred as a key law that has allowed the Internet to flourish, often referred to as "The Twenty-Six Words That Created the Internet". – David Callanan Aug 20 at 18:19
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    @DavidCallanan: The CDA was an act intended to stifle Internet activity - by censoring what the government deems to be "obscene" or "indecent" (hence the name). Section 230 was simply an exception to an anti-free-speech law; and while it is important, you're still mis-characterizing it. – einpoklum Aug 20 at 18:59
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I would imagine it WOULD be in violation of campaign finance laws.

https://en.wikipedia.org/wiki/Campaign_finance_in_the_United_States

https://smallbusiness.chron.com/can-corporation-donate-presidential-election-36819.html

The law states companies are not allowed to donate, and officers of a company can contribute to political campaigns at the individual level.

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    The question is about Facebook allegedly moderating its own platform to influence people in favor of a specific agenda, not about spending or donating money. Would that fall under campaign finance laws? – divibisan Aug 23 at 17:54
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    Yes it is.. but you missed the point.. that kind of moderating can be deemed as political messaging.. which can be assigned a dollar value. .therefore making it illegal. – dolphin_of_france Aug 23 at 18:05
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    No, I got that that was the point you were making, but is that actually true, legally? We could definitely consider it, but since the question asks about illegality, not sketchiness, I think you'd need to show that the legal system does consider this kind of advocacy to fall under campaign finance laws, which you don't do. A bit more explanation and justification of that point would greatly strengthen this answer, I think. – divibisan Aug 23 at 18:24

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