Twitter faces the ‘nightmare’ of being forced into free speech

Twitter’s board of directors gathered this week to sign what sounds like a suicide pact. It unanimously voted to swallow a “poison pill” to tank the value of the social media giant’s shares rather than allow billionaire Elon Musk to buy the company.

The move is one way to fend off hostile takeovers, but what is different in this case is the added source of the hostility: Twitter and many liberals are apoplectic over Musk’s call for free speech protections on the site. 

Company boards have a fiduciary duty to do what is best for shareholders, which usually is measured in share values. Twitter has long done the opposite. It has virtually written off many conservatives — and a large portion of its prospective market — with years of arbitrary censorship of dissenting views on everything from gender identity to global warming, election fraud and the pandemic. Most recently, Twitter suspended a group, Libs of Tik Tok, for “hateful conduct.” The conduct? Reposting what liberals have said about themselves.

The company seemingly has written off free speech too. Twitter CEO Parag Agrawal was asked how Twitter would balance its efforts to combat misinformation with wanting to “protect free speech as a core value” and to respect the First Amendment. He responded dismissively that the company is “not to be bound by the First Amendment” and will regulate content as “reflective of things that we believe lead to a healthier public conversation.” Agrawal said the company would “focus less on thinking about free speech” because “speech is easy on the internet. Most people can speak. Where our role is particularly emphasized is who can be heard.”

Not surprisingly, selling censorship is not a big hit with most consumers, particularly from a communications or social media company. The actions of Twitter’s management have led to roller-coastering share values. While Twitter once reached a high of about $73 a share, it is currently around $45. (Musk was offering $54.20 a share, representing a 54 percent premium over the share price the day before he invested in the company.)

Notably, Musk will not trigger the poison pill if he stays below 15 percent ownership of the company. He could push his present stake up to 14.9 percent and then negotiate with other shareholders to take greater control.

Another problem is that Twitter long sought a private buyer under former CEO Jack Dorsey. If Musk increases his bid closer to $60, the board could face liability in putting its interests ahead of the company’s shareholders.

Putting aside the magical share number, Musk is right that the company’s potential has been constrained by its woke management. For social media companies, free speech is not only ethically but economically beneficial — because the censorship model only works if you have an effective monopoly in which customers have no other choice. That is how Henry Ford could tell customers, back when he controlled car-making, that they could have any color of Model T “as long as it’s black.”

Of course, the Model T’s color was not a critical part of the product. On the other hand, Twitter is a communications company selling censorship — and opposing free speech as a social media company is a little like Ford opposing cars.

The public could be moving beyond Twitter’s Model T philosophy, however, with many people looking for access to an open, free forum for discussions.

Censorship — or “content modification,” as used in polite company — is not value maximizing for Twitter, but it is status enhancing for executives such as Agrawal. It does not matter that consumers of his product want less censorship; the company has become captive to its executives’ agendas.

Twitter is not alone in pursuing such self-defeating values. Many in the mainstream media and many on the left have become some of the loudest advocates for corporate censorship. The Washington Post’s Max Boot, for example, declared, “For democracy to survive, we need more content moderation, not less.” MSNBC’s Katy Tur warned that reintroducing free speech values on Twitter could produce “massive, life- and globe-altering consequences for just letting people run wild on the thing.” 

Columnist and former Clinton Labor Secretary Robert Reich went full Orwellian in explaining why freedom is tyranny. Reich dismissed calls for free speech and warned that censorship is “necessary to protect American democracy.” He then delivered a line that would make Big Brother blush: “That’s Musk’s dream. And Trump’s. And Putin’s. And the dream of every dictator, strongman, demagogue and modern-day robber baron on Earth. For the rest of us, it would be a brave new nightmare.”

The problem comes when you sell fear for too long and at too high a price. Recently, Rep. Madeleine Dean (D-Pa.) agreed with MSNBC analyst John Heilemann that Democrats have to “scare the crap out of [voters] and get them to come out.”

That line is not selling any better for the media than it is for social media, however. Trust in the media is at a record low, with only 7 percent expressing great trust in what is being reported. The United States ranks last in media trust among 46 nations. 

Just as the public does not want social media companies to control their views, it does not want the media to shape its news. In one recent poll, “76.3% of respondents from all political affiliations said that ‘the primary focus of the mainstream media’s coverage of current events is to advance their own opinions or political agendas.'”

Thus, an outbreak of free speech could have dire consequences for many in the political-corporate-media triumvirate. For them, the greatest danger is that Musk could be right and Twitter would become a more popular, more profitable company selling a free speech product. 

Poison pill maneuvers are often used to force a potential buyer to negotiate with the board. However, Twitter’s directors (who include Agrawal and Dorsey) have previously limited their product to advance their own political preferences. This time, federal law may force them to fulfill their fiduciary duties, even at the cost of supporting free speech. The problem for the board will occur when the “nightmare” of free speech comes in at $60 a share.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.