For free speech advocates, Elon Musk’s purchase of Twitter could prove the most impactful event since Twitter’s founding in 2006. The question, however, is how Musk can accomplish his lofty goal of restoring free speech values to social media. He first would have to untie the Gordian knot of censorship in a company now synonymous with speech control. The answer may be simpler than most people think. Indeed, anti-free-speech figures in the country may have given Musk the very roadmap he’s looking for: the First Amendment.
The purchase of Twitter alone will have immediate and transformative changes for free speech. The control over speech on social media required a unified front. Free speech is like water, it tends to find a way out. With social media, there was no way out because of the unified front of companies like Google, Apple and Facebook. Facebook is actually running commercials trying to convince people to embrace their own censorship. This message was reinforced by Democratic leaders like President Biden, who demanded that these companies expand censorship and curtail access to harmful viewpoints.
Now this market has one major competitor selling a free speech product. The fear is that Musk might be proven right and that Twitter could become larger and more profitable by allowing more free speech. Facebook has not had much success in convincing customers to embrace censorship, but it may find shareholders wondering why the Facebook board (like the Twitter board) is undermining its own product as a communications company committed to limited speech.
Another immediate change could be the forced exodus of a line of ardent censors from the company, with Twitter CEO Parag Agrawal (hopefully) at the head of line. Agrawal is one of the most anti-free-speech figures in Big Tech. After taking over as CEO, Agrawal quickly made clear that he wanted to steer the company beyond free speech and that the issue is not who can speak but “who can be heard.”
However, once such figures are removed from Twitter, the question is how to re-establish a culture of free speech. The answer may be in the very distinction used by Democratic politicians and pundits to justify corporate censorship.
For years, anti-free-speech figures have dismissed free speech objections to social media censorship by stressing that the First Amendment applies only to the government, not private companies. The distinction was always a dishonest effort to evade the implications of speech controls, whether implemented by the government or corporations. The First Amendment was never the exclusive definition of free speech. Free speech is viewed by many of us as a human right; the First Amendment only deals with one source for limiting it. Free speech can be undermined by private corporations as well as government agencies. This threat is even greater when politicians openly use corporations to achieve indirectly what they cannot achieve directly.
Corporations clearly have free speech rights. Ironically, Democrats have long opposed such rights for companies, but they embrace such rights when it comes to censorship. The Democratic Party embraced corporate governance of free speech once these companies aligned themselves with their political agenda. Starbucks and every other company have every right to pursue a woke agenda. Social media companies, however, sell communications, not coffee. They should be in the business of free speech.
Democrats have continued to treat the First Amendment as synonymous with free speech, as a way to justify greater censorship. Just last week, former President Barack Obama spoke at Stanford to flog this false line. Obama started by declaring himself, against every indication to the contrary, to be “pretty close to a First Amendment absolutist.” He then called for the censorship of anything that he considered “disinformation,” including “lies, conspiracy theories, junk science, quackery, racist tracts and misogynist screeds.” He was able to do that by emphasizing that “The First Amendment is a check on the power of the state. It doesn’t apply to private companies like Facebook or Twitter.”
Well, what if it did? The Constitution does not impose the same standard on Twitter — but Musk could. He could order a new Twitter team to err on the side of free speech while utilizing First Amendment standards to maximize protections on the platform. In other words, if the government could not censor a tweet, Twitter would not do so.
The key to such an approach is not to treat Twitter as akin to “government speech,” a category where the government has allowed major speech controls. Rather, tweets are very much as Musk has described them: akin to speech in “the digital town square.” If the government could not stop someone from speaking in a public forum like a town square, Twitter should not do so through private means.
The value to tying private speech to First Amendment jurisprudence is that there is a steady array of cases illuminating this standard and its applications.
Such a rule would admittedly allow a large array of offensive and objectionable speech — just as the First Amendment does in a public square. That is the price of free speech.
This is, admittedly, not a perfect fit. Twitter needs to protect itself from civil liability in the form of trademark, copyright and other violations in the use of its platforms. Moreover, most sites (including my own blog) delete racist and offensive terms. That can be done through standard moderation systems, which allow posters to edit their text or view. There are also standard rules against doxxing as well as personal threats or privacy violations.
Social media companies long had these limitations before plunging headlong into the type of content-based speech regulations made infamous by Twitter. Musk can use the baseline of the First Amendment with these limited augmentations to re-create the type of relatively open forums that once characterized the internet.
I have long admitted to being a type of “internet originalist” who prefers precisely the digital town square concept embraced by Musk. Adopting the First Amendment standards would create a foundation for free speech that can be tweaked to accommodate narrow, well-defined limitations.
The greatest challenge is not the restoration of free speech but the retention of such a site. Notably, figures like Hillary Clinton have suddenly turned from advocating corporate censorship to calling for good old-fashioned state censorship. Last week, Clinton called on the European Union to pass the Digital Services Act (DSA), a massive censorship measure that has received preliminary approval. Coming after Musk’s bid for Twitter, Clinton and others now want to use European countries to offer the same circumvention of the First Amendment. Rather than use a corporate surrogate, they would use an alternative state surrogate to force Twitter to censor content or face stiff penalties in Europe.
Musk will have to fight that battle when it comes. In the interim, he can rally the public, as he did Twitter shareholders, to the cause of free speech.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.