Elon Musk Is Finding Out That Free Speech Isn’t Rocket Science
It’s harder.
“This is a battle for the future of civilization. If free speech is lost even in America, tyranny is all that lies ahead.”
So says Elon Musk, the billionaire owner of Twitter, which remains, for now, the go-to place for political obsessives to argue over polarizing topics like gender therapy, school vouchers and Covid-19 policy. Musk has indicated that he wants to relax the platform’s rules around what people can and cannot say there — but doesn’t want to make it a “free-for-all hellscape.”
Seeking to balance those two impulses, Musk appears to be making it up as he goes along. He has said that Twitter users should be “able to speak freely within the bounds of the law,” but also that Twitter might temporarily suspend someone who tweets “something that is illegal or otherwise just destructive to the world” and either delete the offending tweet or make it “invisible.”
Even to those who closely follow free-speech debates around internet technology, it’s all pretty baffling.
“If anyone can get inside his head, I’d love to hear it,” said Corbin Barthold, an appellate lawyer for Tech Freedom, a nonpartisan think tank. “He seems to shift from free-speech absolutism until he decides he doesn’t like something.”
Trevor Timm, a co-founder and the executive director of Freedom of the Press Foundation, called Musk a “giant hypocrite” who is abusing the term “free speech.”
Timm worries, too, about how Musk will behave when authoritarian countries like China, where Tesla has vast business interests, lean on Twitter to crack down on dissidents or journalists on its platform.
Judging from his tweets — including, most recently, an image of Pepe the Frog, the unofficial mascot of the alt-right — Musk seems consumed by the previous ownership’s enforcement of company policies toward accounts like those of Donald Trump, Kanye West and Milo Yiannopoulos, whose tweets have violated Twitter’s rules around hate speech and, in the case of the former president, incitement to violence.
The mass restoration of suspended Twitter accounts has already begun. On Monday, Casey Newton and Zoe Schiffer reported that Twitter had started to reinstate “roughly 62,000 accounts with more than 10,000 followers” apiece. The list includes “one account that has over five million followers, and 75 accounts with over one million followers,” they added.
Musk also urged his followers to vote for Republicans in the midterm elections, and has said he would support Gov. Ron DeSantis of Florida if he ran for president in 2024.
In so doing, Musk has allied himself with a politician — DeSantis — who has gone after his own company. And he is setting himself on a potential collision course with other tech companies at a time when looming Supreme Court rulings could destroy or at least fundamentally change his business.
Twitter v. Apple
Twitter constraining what its users can say on its platform is very different, legally speaking, from what the government can do to police speech.
As Ben Wizner, the director of the A.C.L.U.’s Speech, Privacy and Technology Project, has put it, if Musk “decides tomorrow that any speech that criticizes Tesla is going to be banned from Twitter, he absolutely has the right to do that.” (Musk, by the way, is an A.C.L.U. donor.)
A lot of speech on social media platforms like Twitter falls into a category of what Daphne Keller, a Stanford scholar who was formerly a senior lawyer at Google, calls “lawful but awful.” She defines it as “speech that is offensive or morally repugnant to many people but protected by the First Amendment.”
But as Musk is learning, the First Amendment can’t force advertisers or business partners to agree to work with you once you change the rules in ways they don’t like.
Musk’s relaxing of Twitter’s moderation policies threatens to run afoul of Apple, which in the past has booted applications from its online store over safety concerns. It suspended Parler, a Twitter clone popular on the far right, after the assault on the Capitol on Jan. 6, 2021.
When CBS News recently asked Tim Cook, the chief executive of Apple, whether the company might do the same to Twitter, he said he didn’t expect that to happen because Twitter had promised to keep moderating harmful content.
“I don’t think anyone wants hate speech on their platform, so I’m counting on them to continue to do that,” Cook said. Judging from his body language, however, he did not appear especially confident in that assessment.
On Monday, Musk claimed that “Apple has also threatened to withhold Twitter from its App Store, but won’t tell us why.”
He didn’t offer any evidence for that claim, but DeSantis warned that if Apple removed Twitter from the App Store, “That would be a huge, huge mistake, and it would be a really raw exercise of monopolistic power that I think would merit a response from the United States Congress.”
That’s unlikely; Congress is hopelessly divided over how to regulate social media companies, with very little common ground between the two parties. But now that Republicans will take control of the House next year, they can hold hearings and at least make some noise.
Here comes the Supreme Court
If there’s little prospect that Congress can do much — other than complain — to alter how platforms like Twitter handle speech issues that’s not true of the Supreme Court.
Four cases are either already before the court or soon will be and, as Keller noted in an interview, “that might throw everything we think we know about the legal obligations of the platforms into disarray.”
Tech companies are on the opposite side of DeSantis over a Florida law, known as S.B. 7072, that bars social media companies from removing the accounts of any “journalistic enterprise” or political candidate. It’s on hold, under a federal injunction that was upheld by the 11th Circuit.
In signing that law, DeSantis cast it as a blow to “Silicon Valley elites,” whom he compared to tyrants in Cuba and Venezuela
A similar law in Texas was upheld by a three-judge panel of the Fifth Circuit but is likewise frozen for now. “We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” wrote Judge Andrew Oldham, a Trump appointee. “The platforms are not newspapers. Their censorship is not speech.”
When there is a split in the lower courts, the Supreme Court often steps in. Florida has appealed to a seemingly sympathetic Justice Clarence Thomas, who oversees the 11th Circuit, to take up its case.
Ordinarily, most legal experts would expect the Supreme Court to overturn both laws as an illegal attempt to infringe upon the free-speech prerogatives of a private company. Lower courts have repeatedly batted away dozens of similar attempts to do so. But Thomas might have allies in Justices Neil Gorsuch and Samuel Alito, and possibly others, in upholding them in at least some aspects.
The question might hinge on whether the court views social media platforms more like newspapers or more like radio and television. In 1974, the Supreme Court ruled that a newspaper can’t be forced to publish replies to one of its editorials. But the court has also ruled that cable companies can be required to carry local broadcast channels. The tech companies point to another decision, Reno v. A.C.L.U., that established that internet platforms are technologically distinct enough that they must be regulated differently.
In an amicus brief opposing the Florida law, Tech Freedom, the think tank, called it “a First Amendment train wreck.” If it were upheld, the group’s Barthold added in our interview, “It would amount to a huge burden on the platform. I don’t think Elon Musk would be happy with it.”
The Supreme Court has already agreed to hear two other cases that could touch on whether tech companies can be held liable when their recommendation algorithms recommend terrorist recruitment videos. Twitter is a party to one of them, and filed a reply brief arguing that upholding the Ninth Circuit’s ruling would be “harmful.”
Depending on how the court rules in those two cases, it could radically alter Section 230 of the Communications Decency Act, a 26-word provision of the 1996 law that prevents internet platforms from being treated as “the publisher or speaker of any information provided by another information content provider.”
When it comes to those cases, “it’s much harder to game out what the justices are going to do,” Keller said. “It cuts across political divides in a way that the Texas and Florida cases don’t.”
Chris Marchese, a lawyer for NetChoice, an industry group that is a litigant in the Texas and Florida cases, said there was no sign that Twitter had pulled back on its support since Musk’s takeover.
But there’s also no sign that any of these legal threats to his business are on Musk’s radar, other than a glancing reference in leaked meeting notes to his seeming “very knowledgeable” about communications law.
“If Elon Musk really cared about free speech,” Timm said, “he would call up his new buddy Ron DeSantis and ask him to stop attacking Section 230.”
