Do Tennessee's political ad disclaimer rules apply to Facebook, Twitter, and other social media posts?

Subject

Opinion No. 18-37, Applicability of Electioneering Disclaimer Requirements to Social Media Platforms, August 14, 2018

Plain-English summary

Representative Jason Powell asked whether Tennessee's electioneering disclaimer requirement (the "paid for by" notice on political ads) covers paid social media communications, and whether any other disclosure rules apply.

The AG concluded that yes, on both counts.

On the disclaimer rule itself, Tenn. Code Ann. § 2-19-120(a) requires anyone who pays for a "communication that expressly advocates the election or defeat of a clearly identified candidate" through "any broadcasting station, newspaper, magazine, outdoor advertising facility, poster, yard sign, direct mailing or any other form of general public political advertising" to include a clear and conspicuous disclaimer identifying who paid for and (where required) authorized the communication. Neither "communication" nor "general public political advertising" is defined in the statute, so the AG applied the ordinary-meaning rule from Tenn. Code Ann. § 1-3-105(b). A paid social media ad expressly advocating for or against a candidate is a "communication" under any plain-English reading. And under the ejusdem generis canon, the catch-all "any other form of general public political advertising" sweeps in social media because it is similar in nature to the enumerated traditional advertising channels and has often replaced them.

The bumper-sticker exception in § 2-19-120(b) (which exempts "bumper stickers, pins, buttons, pens, novelties, and similar small items upon which the disclaimer cannot be conveniently printed") doesn't help. Social media posts are not physical novelty items with no room for text. Even Twitter's character limit, the AG noted, can be worked around through images, reply tweets, or profile information.

On disclosure, § 2-10-105 separately requires candidates and political campaign committees to file statements reporting "all expenditures made by or on behalf of" them. Money spent on social media political ads is an expenditure, so it must be reported on the candidate or PAC disclosure forms (filed with the registry of election finance for state offices, or with the county election commission for local offices).

A footnote walks back an older 1995 AG opinion that had concluded § 2-19-120 was unconstitutional under McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). The AG explained that subsequent amendments to the statute (limiting it to candidate communications, not ballot measures), Citizens United, and a string of circuit decisions upholding similar disclaimer requirements have rendered the 1995 conclusion obsolete. The First Amendment status of anonymity protections specifically in the social media context, the opinion acknowledged, remains an open question.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's "paid for by" rule lives in Tenn. Code Ann. § 2-19-120(a). It triggers any time a person makes an expenditure to finance a "communication that expressly advocates the election or defeat of a clearly identified candidate, as defined by § 2-10-102," through "any broadcasting station, newspaper, magazine, outdoor advertising facility, poster, yard sign, direct mailing or any other form of general public political advertising." A disclaimer must "appear and be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice of the identity of persons who paid for and, where required, who authorized the communication."

§ 2-19-120(b) exempts "bumper stickers, pins, buttons, pens, novelties, and similar small items upon which the disclaimer cannot be conveniently printed." That carve-out drove the AG's analysis under TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001) and Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001): the express enumeration of certain exceptions implies that no others were intended.

The ejusdem generis principle came from Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores v. Adams, 532 U.S. 105, 114-15 (2001)): general words following specific words are read to embrace only objects similar in nature to those enumerated. The AG framed broadcasting, newspapers, magazines, outdoor advertising, posters, yard signs, and direct mailings as traditional channels of general public political messaging. Social media platforms are similar in nature, and indeed (citing Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017)) have become the dominant channel for political advertising.

The candidate-and-PAC reporting obligation in § 2-10-105 is parallel and broader. § 2-10-105(a) requires statements of "all expenditures made by or on behalf of" candidates for state public office and political campaign committees in state elections to be filed with the registry of election finance. § 2-10-105(b) requires the same for candidates and PACs in local elections, filed with the applicable county election commission. Social media advertising spending is an expenditure that must be disclosed.

The First Amendment context, as discussed in the opinion's second footnote, runs through McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995); Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010); Worley v. Fla. Sec. of State, 717 F.3d 1238 (11th Cir. 2013); Majors v. Abell, 361 F.3d 349 (7th Cir. 2004); and Ky. Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997).

Common questions

If I pay to boost a Facebook post advocating for a candidate, do I need a "paid for by" disclaimer?

Per this opinion, yes. A boosted post that expressly advocates the election or defeat of a clearly identified Tennessee candidate is a "communication" under § 2-19-120 and falls within the catch-all "general public political advertising." The disclaimer must identify who paid for the communication (and, where required, who authorized it) clearly and conspicuously.

Does the rule apply to organic, unpaid social media posts?

The trigger in § 2-19-120(a) is making "an expenditure for the purpose of financing" the communication. An unpaid post by an individual using their own account is not a communication "financed" by an expenditure for advertising purposes. The opinion focused on paid social media advertising. That said, a post made on behalf of a campaign or PAC may still be reportable under § 2-10-105 if it involves any expenditure (for example, paid staff time).

What about Twitter's character limit, doesn't that make a disclaimer impossible?

The AG addressed this directly in footnote 1. Even when a platform imposes a character limit, the disclaimer can be added through an image, a reply tweet, or profile information. Convenience of the standard text-string approach is not the test; the test is whether the disclaimer can be presented "in a clear and conspicuous manner."

Are political ads about ballot measures (rather than candidates) covered?

No. The 1995 statute applied to ballot "measures" as well, but the General Assembly amended § 2-19-120 in 2004 (2004 Tenn. Pub. Acts, ch. 480, §§ 11, 12) to apply only to candidate communications. The opinion specifically noted that this 2004 amendment is one reason the AG's older 1995 First Amendment analysis is no longer applicable.

Do candidates and PACs have to report social media spending separately?

Under § 2-10-105, candidates for state office and political campaign committees in state elections must file a statement of "all expenditures" with the registry of election finance. Local candidates and PACs file the equivalent with the county election commission. The "all expenditures" language is broad and includes social media advertising spending. The opinion did not parse particular reporting categories or thresholds; those follow the registry's forms.

Are these disclaimer rules constitutional?

The opinion treated the rules as enforceable post-Citizens United. McIntyre invalidated an older Ohio law banning anonymous ballot-measure leaflets, but the Tennessee statute was narrowed in 2004 to candidate communications, and Citizens United and post-McIntyre circuit decisions have upheld disclaimer regimes similar to Tennessee's. The opinion was careful to note that the First Amendment treatment of anonymity in social media specifically remains an open question, citing Justice Alito's concurrence in Packingham and a 2012 D.D.C. opinion addressing anonymous internet posting.

Citations

Statutes

• Tenn. Code Ann. § 2-19-120 (electioneering disclaimer requirement)
• Tenn. Code Ann. § 2-10-102 (definitions, including "clearly identified candidate")
• Tenn. Code Ann. § 2-10-105 (candidate and PAC expenditure reporting)
• Tenn. Code Ann. § 1-3-105 (statutory construction; ordinary meaning of undefined terms)

Cases

• Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003)
• Circuit City Stores v. Adams, 532 U.S. 105 (2001)
• Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010)
• Packingham v. North Carolina, 137 S. Ct. 1730 (2017)
• TRW Inc. v. Andrews, 534 U.S. 19 (2001)
• Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001)
• McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)
• Majors v. Abell, 361 F.3d 349 (7th Cir. 2004)
• Worley v. Fla. Sec. of State, 717 F.3d 1238 (11th Cir. 2013)
• Ky. Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997)
• In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1 (D.D.C. 2012)

Prior AG opinions

• Tenn. Att'y Gen. Op. 95-090 (Aug. 29, 1995) (described in opinion as obsolete)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-37.pdf

Original opinion text

Applicability of Electioneering Disclaimer Requirements to Social Media Platforms

Question 1

Do the disclaimer requirements of Tenn. Code Ann. § 2-19-120 apply when a person finances an election-related communication on a social media platform?

Opinion 1

Yes.

Question 2

Do any other financial disclosure or disclaimer requirements under state law apply to election-related communications on social media platforms?

Opinion 2

Yes, Tenn. Code Ann. § 2-10-105 is also applicable to political communications on social media platforms.

ANALYSIS

1. Section 2-19-120(a) of the Tennessee Code imposes a disclaimer requirement on election-related communications. In pertinent part, it provides:

Whenever any person makes an expenditure for the purpose of financing a communication that expressly advocates the election or defeat of a clearly identified candidate, as defined by § 2-10-102 through any broadcasting station, newspaper, magazine, outdoor advertising facility, poster, yard sign, direct mailing or any other form of general public political advertising, a disclaimer meeting the requirements of subdivision (a)(1), (2), (3), or (4) shall appear and be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice of the identity of persons who paid for and, where required, who authorized the communication.

Neither "communication" nor "general public political advertising" is defined in § 2-19-120 or in the definition section it incorporates, Tenn. Code Ann. § 2-10-102. Undefined words in the Tennessee Code must "be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest." Tenn. Code Ann. § 1-3-105(b).

The ordinary meaning of the word "communication" includes a message or advertisement posted on a social media platform. The word "communication" means "the imparting or exchanging of information or news." New Oxford American Dictionary (3d ed. 2010); see also Black's Law Dictionary (10th ed. 2014) (defining "communication" as "the interchange of messages or ideas by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception"). A message or advertisement that expressly advocates the election or defeat of a clearly identified candidate constitutes the imparting of information or news and the interchange of a message or idea and fits easily within the ordinary meaning of "communication."

The catch-all phrase "or any other form of general public political advertising" is also broad enough to include social media platforms. "[W]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores v. Adams, 532 U.S. 105, 114-15 (2001)). The meaning of "general public political advertising" is thus to be determined from the words that precede it. A "broadcasting station, newspaper, magazine, outdoor advertising facility, poster, yard sign, and direct mailing" are all traditional media through which to advertise and convey messages. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 373 (Roberts, C.J. concurring) (noting television and radio broadcasts, pamphlets, posters, and newspapers as methods for expressing opinions on matters of public concern). Section 2-19-120 enumerates all of these methods of communications and then includes "any other form of general public" advertising.

As an important medium of speech and political advertising, social media platforms are similar in nature to the other forms of advertising listed in § 2-19-120 and thus fall within its catch-all provision for "any other form of general public political advertising." Indeed, social media platforms have overtaken the traditional methods of political advertising enumerated in § 2-19-120, newspapers, posters, direct mailings, etc., as the most effective means of communicating with a target audience. Social media platforms are simply a new "form" of "general public" advertising similar in purpose to the more traditional forms listed in the statute. Social media platforms have, in fact, become the paramount form of political advertising, replacing many of the traditional forms. See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) ("While in the past there may have been difficulty in identifying the most important places . . . for the exchange of views, today the answer is clear. It is cyberspace, the vast democratic forums of the Internet in general, and social media in particular." (internal quotation marks omitted)); see also Citizens United, 558 U.S. at 364 ("Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues."). Section 2-19-120 accounts for such developments by including a catch-all provision requiring disclaimers on "any other form" of public political advertising.

Section 2-19-120(b) does except from its disclaimer requirements "bumper stickers, pins, buttons, pens, novelties, and similar small items upon which the disclaimer cannot be conveniently printed." This express exception for bumper stickers, pins, and other small items reinforces that additional exceptions to the disclaimer requirement, e.g., for social media posts, should not be implied. See TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent." (internal quotation marks omitted)); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83-84 (Tenn. 2001).

Social media platforms do not fit within the exception in subsection (b) for "similar small things upon which the disclaimer cannot be conveniently printed." The meaning of that concluding phrase must also be determined from the words which proceed it. See Guardianship Estate of Keffeler, 537 U.S. at 384. Bumper stickers, pins, buttons, pens, and novelties are all tangible items with a limited space on which a message may be printed. Political messages posted on social media platforms are not similar to these tangible forms of political advertisements and do not share their physical limitations; on social media platforms, the required disclaimer requirements can conveniently be included with the political message.

In sum, a message or advertisement that expressly advocates the election or defeat of a clearly identified candidate is a "communication" within the scope of Tenn. Code Ann. § 2-19-120, and social media platforms are a form of "general public political advertising" within the scope of the statute as well. Accordingly, a person who spends money to finance a "communication that expressly advocates the election or defeat of a clearly identified candidate" on a social media platform must comply with the applicable disclaimer requirements.

2. Tennessee law also requires that "all expenditures made by or on behalf of" candidates for state public office and political campaign committees involved in state elections be filed in a statement with the registry of election finance. Tenn. Code Ann. § 2-10-105(a). Similarly, candidates for local public office and political campaign committees involved in local elections must file an identical statement with the applicable county election commission. Id. § 2-10-105(b). These statutes require disclosure of "all expenditures," which would include expenses incurred in promulgating political advertisements or communications on social media platforms. Any expenses incurred for communicating via social media are thus required to be disclosed pursuant to § 2-10-105.

[1] While some social media platforms, such as Twitter, may impose a maximum character limit, there exist many ways in which a user can "conveniently" include a disclaimer, e.g. by using an image, a reply tweet, or profile information to disclose the identity of the person who paid for, or authorized, the communication in a sufficiently clear and conspicuous manner necessary to satisfy the requirements of § 2-19-120.

[2] This Office previously concluded that § 2-19-120 violated the First Amendment in light of the Supreme Court's decision in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). See Tenn. Att'y Gen. Op. 95-090 (Aug. 29, 1995). Subsequent statutory amendments and case law have, however, rendered the conclusion of the 1995 opinion obsolete. In McIntyre, the Supreme Court held unconstitutional an Ohio law that prohibited the distribution of anonymous campaign material for both referenda and candidate elections. See Majors v. Abell, 361 F.3d 349, 351 (7th Cir. 2004) (Posner, J.). When the 1995 opinion was issued, § 2-19-120 similarly applied to communications supporting both candidates and ballot "measure[s]." But the statute was subsequently amended in 2004 to apply only to communications supporting candidates. See 2004 Tenn. Pub. Acts, ch. 480, §§ 11, 12. McIntyre also expressly limited its holding to "only written communications and, particularly, leaflets of the kind Mrs. McIntyre distributed." 514 U.S. at 338 n.3. Although the previous opinion found it "certain that the Court would apply the same First Amendment analysis to broadcast restrictions," Tenn. Att'y Gen. Op. 95-90 (Aug. 29, 1995), some courts have in fact interpreted McIntyre as limited to written communications, see, e.g., Worley v. Fla. Sec. of State, 717 F.3d 1238, 1254 (11th Cir. 2013). In addition, since McIntyre, the Supreme Court and lower courts have upheld limited disclaimer requirements, some of which are similar to § 2-19-120. See, e.g., Citizens United 558 U.S. at 366-71 (upholding disclaimer requirements that applied to electioneering communications funded by anyone other than a candidate); Worley, 717 F.3d at 1253-55; Majors, 361 F.3d at 351-55; Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 647-48 (6th Cir. 1997). Moreover, the implications of McIntyre, Citizens United, and other cases for political advertising done through the unique medium of social media platforms have not yet been addressed. The anonymity protection provided by the First Amendment in the social media context remains an open question. See, e.g., Packingham, 137 S. Ct. at 1743 (Alito, J. concurring in the judgment) (cautioning against the "unprecedented degree of anonymity" provided by the internet); In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1, 4 (D.D.C. 2012) ("Mr. X has a right under the First Amendment to post on the Internet, and to do so anonymously.").

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Jason Powell
State Representative, District 53
418 Cordell Hull Building
Nashville, TN 37243