Twitter CEO Elon Musk, a self-described defender of free speech, recently presented the Twitter employees he fired with a severance offer – one month’s pay, on condition they sign a non-disparagement clause. So much for free speech.
But does free speech need Twitter or Musk to become its temperamental midwife?
No, free speech works just fine without Twitter. It doesn’t even need a town square, whatever that means is in this era of Big Tech and big protests.
In my experience as a civil rights attorney, I have come to believe that all of American society can be a public forum, if we are brave enough to allow it.
Free speech and dissent belong in the street, the college dean’s office, the convention hall and the shareholder meeting. But the idea that social media platforms – more than any physical space – provide a unique service as a “digital town square” is gaining currency these days. It’s such an appealing notion that Musk cited it as the reason he bought Twitter for $44 billion, in an open message to advertisers when he acquired the site on October 27.
Meanwhile, the Supreme Court is toying with the possibility of ruling on two cases that raise a thought-provoking question: Can state governments dictate content moderation rules on social media platforms? On January 23, the high court asked the Biden administration for its view, putting off a decision on whether to take up the two cases – for now.
The cases stem from laws passed in Florida and Texas to limit the power of Big Tech to engage in content moderation. Conservative politicians in those states have accused tech executives, at least those not named Musk, of censoring and imposing leftwing ideology on users. Ironically, Musk’s own rightwing biases and his erratic decision making as Twitter CEO have undermined the idea that social media is a place where people of every ethnic background and political point of view can be heard, in other words that it’s a town square.
Too often, social media posts spread hate or incite violence against groups of people or individuals. Shouldn’t those who host that speech, such as Meta which owns Facebook and Instagram and is the biggest player in social media, have a right to deny access? Private companies have never been obligated to permit all types of speech in their midst, and there’s a thin line between hate speech and speech which incites violence.
Musk, the Tesla founder and the world’s second-wealthiest individual who has devoted a huge share of his fortune to buy Twitter, has relaxed content moderation rules on Twitter, all while employing almost apocalyptic language to hype his takeover.
“This is a battle for the future of civilization,” Musk tweeted on Nov. 28, in the midst of one of several controversies over internet censorship that he has ginned up. “If free speech is lost even in America, tyranny is all that lies ahead.”
Musk has also upped the ideological ante by aligning himself with conservative politicians, including Florida Governor Ron DeSantis (whom Musk said he would support if the Republican runs for president in 2024).
In 2021, DeSantis said, “Big Tech censors enforce rules inconsistently,” as he signed a law to prohibit social media companies from banning political candidates for elected office in Florida and forcing them to be more transparent about content moderation. DeSantis championed the law after Twitter banned former President Donald Trump just days after he used the platform to egg on supporters who stormed the Capitol on January 6, 2021.
Musk criticized the decision to ban Trump and reinstated the former president’s account on November 19. He has the right to make that decision (much as I disagree with it), but the previous regime at Twitter also had every right to de-platform Trump.
The First Amendment principle allowing social media companies to moderate content was bolstered by the U.S. 11th Circuit Court of Appeals, which in May 2022 blocked most of the Florida law. The court found social media companies have a right to decide which speech to block and what to permit, just as newspapers do on editorial pages.
The ruling was at odds with another appeals court ruling last year.
In September, the U.S. Fifth Circuit Court of Appeals upheld a Texas law that sought to prohibit social media companies from blocking any user from Texas, no matter how hateful their Twitter posts might be. In the ruling, the court subscribed to Musk’s own view that social media companies operate a “modern public square.”
The appeals court also equated social media companies with “common carriers” such as railroads, email providers, telephone companies and shipping services, reasoning that it was the obligation of these platforms to service every viewpoint.
However, no company should be blocked from exercising their right to limit criminal or harmful conduct. For example, it is a felony to solicit, command, induce or otherwise persuade another person to engage in a crime of violence.
The conflicting appeals court rulings have pointed to the need for the Supreme Court to decide if social media platforms are more like newspapers or railroads.
HIS SITE, HIS RULES
Musk’s own reign as Twitter’s CEO has shown that running a social media company is more akin to operating a traditional media outlet than a railroad, except in Musk’s case, the editorial decisions have been highly idiosyncratic. He began by promising to open the website to every kind of speech allowed under U.S. law, only to end up banning certain speech.
He brought back Andrew Anglin, founder of the neo-Nazi website Daily Stormer, whose Twitter account had been frozen for years. Around the same time, he suspended anti-fascist researcher Chad Loder. Days later, as Musk fumed about tracking of his private jet using publicly available data, he suspended the accounts of several journalists, including tech reporters from the New York Times and Washington Post, and insisted they remove tweets about the geolocation controversy before he would allow them to write new posts.
The thing is, Musk may have the right to enforce his own rules on Twitter, and they may be different than what is allowed on Facebook or TikTok. But let’s not pretend it’s a public square. And if he does enforce rules in a manner that exacerbates harm, shouldn’t he be held responsible for the consequences of his decisions?
Following Musk’s takeover of Twitter, the Washington-based Center for Countering Digital Hate publicized research showing hate speech had soared on the website, with the use of the N-word, for example, spiking more than 200% to a daily average of nearly 3,900 tweets. Musk has said that he is reshaping Twitter so hate-speech reaches fewer people, but the Center for Countering Digital Hate has found the opposite is happening, although it acknowledges not having the complete picture because the social media platform does not give it access to internal metrics.
Leaders from the NAACP and the Anti-Defamation League have warned about the increased use of racial slurs and antisemitism on Twitter, raising questions about how safe the platform is for minorities.
If cyberspace becomes a hellscape, there is always the real world, where free speech is actually a lot more heroic than the Twitter variety. I represent courageous people who have suffered horrendous consequences for exercising their First Amendment rights. These include a woman named Brooke Fortson who was outraged by George Floyd’s murder in 2020 and joined a protest, only to be rammed by a Los Angeles police car; photojournalist Nicholas Stern who looked through his camera’s viewfinder at another protest and saw an LAPD officer shoot a “less lethal” impact projectile at him; and Fahren James, who was exercising her First Amendment rights when she was blindsided by LAPD officers who repeatedly hit her with batons and shot her at close range with an impact projectile.
These acts of state violence are closer to real tyranny than anything Musk may dream up.
Regardless of how arbitrary Musk becomes in promoting far-right speech and regardless how hostile his site becomes to minorities, American democracy will live on. America needs no “free speech zones,” digital town halls or company towns.
Instead, Americans who work to renew our democracy will, like past civil rights heroes, find the physical space they need to make their voices heard. The bravest among us, like Brooke Fortson, Nicholas Stern and Fahren James, will put their bodies on the line to do it.