Elon Musk and Free Speech
What Do We Mean by Protected Free Speech?
Welcome to the Civic Way journal, our quick take on the relevance of breaking news to America’s future governance. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.
He who knows only his own side of the case knows little of that. – John Stuart Mill
Elon Musk loves the limelight. Last month, he announced plans to acquire Twitter and take it private. As Twitter’s new owner, he promised he would allow all speech protected under the First Amendment. He added vaguely that Twitter will allow speech that “matches the law.”
Given Twitter’s importance to the civic arena, Musk’s remarks beg at least two questions. First, what is “free speech?” Second, why does Musk believe the “free speech” test should apply to Twitter?
First, what is free speech? [We will discuss Musk’s acquisition of Twitter in our next journal entry.]
The First Amendment of the US Constitution states, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The US Supreme Court has interpreted this clause to mean that the government (not just Congress) may not punish people or associations for what they say or write (including printing, broadcasting and the Internet).
The right of free speech is not boundless. In his 1919 Schenck v. United States opinion upholding the conviction of a World War I draft protestor, Justice Oliver Wendell Holmes, Jr. offered an illustrative metaphor. Holmes wrote that the right of free speech does not permit us to shout “fire” in a crowded theater (when there is no fire). While the Schenck ruling no longer prevails, the Supreme Court continues to recognize circumstances when expression may be regulated.
Since the Schenck case, the Supreme Court has broadened its definition of free speech. Based on an approach first formulated by Justice Brandeis, the Court has tried to protect expression it deems necessary for democratic self-government. For example, speech that encourages discovery, debate and accountability, and the proliferation of “political truth.”
Since Brandenburg v. Ohio (1969), the Supreme Court has allowed government to regulate speech that is intended and likely to cause imminent, serious injury. With some caveats, the Court has allowed government to restrict such speech as defamation, serious threats, “fighting” words, child pornography and fraudulent commercial advertising (but not misleading political speech).
The gravest threats to free speech often come from those who sanctimoniously claim the mantle of free speech guardians. Many who tout themselves as champions of free speech seek ways to silence expression they find offensive or dangerous. These efforts span the political spectrum. Neither the right nor the left has a monopoly on cancel culture.
In 2020, writer Matthew Yglesias resigned from Vox, the media outlet he co-founded, after receiving withering criticism from colleagues. His offense? Writing articles some deemed too conservative. One opposed defunding the police. Another panned the term, “Latinx.” That same year, a progressive think tank fired a policy analyst for tweeting a study linking violent 1960s-era protests to Democratic Party election losses.
Some leftists value outcomes over freedom of expression. Some, in the name of tolerance or diversity, seem intolerant of different views. Stopping right-wing figures from speaking on college campuses. Mounting cancel campaigns against entertainers, writers or businesses for alleged anti-LGBTQ+ statements. The reflexive use of slurs like “racist” or “transphobe.” Undue trigger warnings.
Many right-wing extremists have a fraught relationship with the First Amendment. Last month, a school district near Columbus Ohio asked an author to read from his children’s book—It’s Okay to be a Unicorn. However, shortly before the scheduled reading, the district stopped the reading. District leaders feared that the book might promote homosexuality. One board member asked, "Why would we welcome an author who is pushing LGBTQ ideas?"
As the GOP has distanced itself from libertarians and traditional conservatives, its operatives—even while decrying cancel culture and invoking the First Amendment—have spurred efforts to suppress dissent. Whitewashing American history. Censoring or challenging books at an “unprecedented” rate (per the American Library Association). Banning classroom discussions of race and gender. Restricting private inclusion initiatives.
Sure, outrage produces garbage. At the 2017 Women’s March, Madonna said, “I have thought an awful lot of blowing up the White House.” Marjorie Taylor Greene has, among other things, urged Nancy Pelosi’s execution and called GOP Senators Collins, Murkowski and Romney “pro-pedophile.” Such bile, which should appall everyone, also deserves protection under the First Amendment.
While seemingly more frenzied now, assaults on free speech have long roiled American society. The victims of censorship and other free speech attacks? Not so much those being cancelled. The publicity may even burnish their brand. The real victim is democracy.
Democracy requires creative friction, a ceaseless exchange (and mingling) of contrasting ideas. It also requires diversity, not just racial, ethnic, cultural and demographic, but ideological. Exposure to other views makes us more curious and tolerant. It also can help us clarify our own thinking.
Our achievements as a nation would have been impossible without the First Amendment. Freedom of expression fosters new ideas, debate, compromise and change. It helps young people learn to think for themselves, to prepare them for citizenship in a democratic republic.
With this sacred right also comes great responsibility. To listen to other views, no matter how objectionable. To embrace great ideas, regardless of the source. To reject the trolls who would shame us and the demagogues who would manipulate us.
To protect freedom of expression, especially when some would forsake it.